BILL ANALYSIS Ó
SB 463
Page 1
Date of Hearing: July 3, 2013
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
SB 463 (Pavley) - As Introduced: February 21, 2013
Policy Committee: Public
SafetyVote:7-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill addresses the constitutional infirmity of the state's
three-tier determinate sentencing law (DSL), pursuant to
Cunningham vs. California (2007), by extending the sunset date
from January 1, 2014 to January 1, 2017 on provisions of law
(the Cunningham fix) that require the court to use its
discretion to impose the term or enhancement that best serves
the interest of justice, as required by SB 40 (Romero) and three
extensions.
FISCAL EFFECT
Unknown annual GF increase or decrease to the extent this
measure results in longer or shorter prison terms. While it is
unlikely this bill will significantly alter current sentencing
patterns, even a minor increase in the number of offenders
deviating from the middle term drives significant costs or
savings, given the large base of offenders (some 85,000
offenders received determinate prison sentences in 2011 and 2012
combined).
Based on CDCR figures from 2008 through 2010, the number of
upper terms per the number of determinate sentences increased
slightly, from about 14% to about 17%, though in actual numbers,
there were 44 fewer upward deviations in 2010 than in 2006.
These figures appear to belie the contention of proponents of AB
765 that current law, which does not require that aggravating
sentencing factors be pled and proved, results in significantly
more upper-term sentences.
COMMENTS
SB 463
Page 2
1)Rationale. This bill extends the current Cunningham fix from
January 2014 to January 2017.
In 2007, in Cunningham vs. California, the U.S. Supreme Court
held that California's DSL violated a defendant's right to a
jury trial because it authorized the court to increase a
defendant's sentence by finding facts not reflected in the
jury verdict. Specifically, because a trial judge could find
factors in aggravation, beyond a preponderance of evidence, to
increase the offender's sentence from the presumptive middle
term to the upper term, the scheme is constitutionally flawed.
The Court suggested this problem could be corrected by either
providing a jury trial on the sentencing issue or by giving
judges discretion to impose the higher term without additional
findings of fact.
California opted for the latter solution. SB 40 (Romero),
Statutes of 2007, corrected the problem by giving judges
discretion to impose a minimum, medium or maximum term,
without additional findings of fact. SB 150 (Wright),
Statutes of 2009, applied the same solution to sentence
enhancements. These bills were designed as temporary fixes to
maintain stability in California's criminal justice system
while broader sentencing issues in California were reviewed.
The provisions of SB 40 sunset January 1, 2009, but were
extended to January 1, 2011 by SB 1701 (Romero), Statutes of
2008, to January 1, 2012 by AB 2263 (Yamada) Statutes of 2010,
and to January 1, 2014 by SB 576 (Calderon) Statutes of 2011.
2)California's DSL uses a triad scheme comprising a presumptive
middle term, a mitigated - or lower - term, and an aggravated
- or upper - term. The triad sentencing structure provides the
court three sentencing options for each crime. For example, a
first-degree burglary offense is punishable by a prison
sentence of two, four, or six years. The upper and lower terms
provided in statute can be given if circumstances concerning
the crime or offender warrant more or less time in prison. In
determining whether there are circumstances warranting the
upper or lower term, the court may consider the record in the
case, the probation officer's report, other reports, including
reports received pursuant to existing law and statements in
aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the
victim is deceased. The court must state for the record the
SB 463
Page 3
facts and reasons for imposing an upper or lower term.
3)Support . According to the L.A. District Attorney's Office, the
sponsor of this bill, "California's current sentencing
procedure works well and is fair to defendants. For the past
four years, judges have given minimum prison terms in 55% to
60% of all cases. Medium terms were ordered an additional 25%
to 28% of the time. Judges ordered maximum prison terms in
only 12% to 17% of all cases.
"With the exception of death penalty cases, California has
always provided for a jury trial to determine if a defendant
is guilty or not guilty of a crime. Sentencing decisions have
always been made by judges. This system is not only fair but
it saves money as a separate jury trial for sentencing would
require that we hire additional prosecutors, public defenders
and judges. California cannot afford that alternative at a
time when we are struggling to pay for basic services."
1)Opposition . According to the California Attorneys for
Criminal Justice (CACJ), "This bill continues a push towards
keeping persons in State prison rather than following the
State's plan for criminal justice realignment. The stated
goal of realignment was to reduce spending on incarceration
and reduce recidivism. The proposed legislation gives the
court a three year extension in its discretion to impose
heavier punishments while keeping more people in State prison.
Not only is the extension unnecessary, it also lacks clarity
in giving the court absolute discretion to impose an
enhancement that 'best serves the interest of justice.'"
1)Related Legislation : AB 765 (Ammiano), sponsored by CACJ, as
introduced required aggravating sentencing factors to be pled
and proved. AB 765 was held on this committee's Suspense File.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081