BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1016       Hearing Date:    April 12, 2016     
          
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          |Author:    |Monning                                              |
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          |Version:   |February 11, 2016                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JM                                                   |
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                                Subject:  Sentencing



          HISTORY

          Source:   California District Attorneys Association

          Prior Legislation:SB 463 (Pavley) - Ch. 598 Stats. 2013
                         SB 576 (Calderon) - Ch. 361, Stats. 2011
                         AB 2263 (Yamada) - Ch. 256, Stats. 2010 
                         SB 150 (Wright) - Ch. 171, Stats. 2009
                         SB 1701 (Romero) - Ch. 416, Stats. 2008
                         SB 1342 (Cogdill) - died in Senate Public Safety;  
          2008
                         SB 40 (Romero) - Ch. 3, Stats. 2007

          Support:  California Police Chiefs Association; California State  
                    Sheriffs' Association

          Opposition:California Attorneys for Criminal Justice

                                                


          PURPOSE

          The purpose of this bill is to extend the sunset provisions from  
          January 1, 2017 to January 1, 2022 on specified basic sentencing  








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          provisions on the factors a court shall consider and procedure  
          the court shall follow in choosing to impose a lower, middle or  
          upper term. 

          Existing law provides that when a judgment of imprisonment is to  
          be imposed and the statute specifies three possible terms, the  
          choice of the appropriate term shall rest within the sound  
          discretion of the court.  (Pen. Code § 1170, subd. (b).)

          Existing law provides that prior to sentencing, either party or  
          the victim, or the family of the victim if the victim is  
          deceased, may submit a statement in aggravation or mitigation,  
          as specified.  In determining the appropriate term, the court  
          may consider the record in the case, the probation officer's  
          report, other reports including reports received pursuant to  
          Section 1203.03, and statements in aggravation or mitigation and  
          additional evidence introduced at the sentencing hearing.  (Pen.  
          Code § 1170, subd. (b).)

          Existing law provides that the court shall select the term that  
          best serves the interests of justice and set forth on the record  
          the reasons for imposing the term selected.  The court may not  
          impose an upper term by using the fact of any enhancement upon  
          which sentence is imposed under any provision of law.  A term of  
          imprisonment shall not be specified if imposition of sentence is  
          suspended.  The provision concerning the authority of the court  
          to choose one of three prescribed sentencing terms upon sunsets  
          on January 1, 2014.  (Pen. Code § 1170, subd. (b).)

          Existing law provides that the Judicial Council shall seek to  
          promote uniformity in sentencing under Section 1170, by:

                 The adoption of rules providing criteria for the  
               consideration of the trial judge at the time of sentencing  
               regarding the court's decision to:
                  o         grant or deny probation;
                  o         impose the lower, middle, or upper prison  
                    term; 
                  o         impose concurrent or consecutive sentences;  
                    and
                  o         determine whether or not to impose an  
                    enhancement where that determination is permitted by  
                    law.









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                 The adoption of rules standardizing the minimum content  
               and the sequential presentation of material in probation  
               officer reports submitted to the court.  (Pen. Code   
               1170.3.)

          Existing California Rules of Court, provide that:

                 When a sentence of imprisonment is imposed, or the  
               execution of a sentence of imprisonment is ordered  
               suspended, the sentencing judge must select the upper,  
               middle, or lower term on each count for which the defendant  
               has been convicted, as provided in section 1170(b) and  
               these rules. 

                 In exercising his or her discretion in selecting one of  
               the three authorized prison terms referred to in section  
               1170(b), the sentencing judge may consider circumstances in  
               aggravation or mitigation, and any other factor reasonably  
               related to the sentencing decision.  The relevant  
               circumstances may be obtained from the case record, the  
               probation officer's report, other reports and statements  
               properly received, statements in aggravation or mitigation,  
               and any evidence introduced at the sentencing hearing.

                 To comply with section 1170(b), a fact charged and found  
               as an enhancement may be used as a reason for imposing the  
               upper term only if the court has discretion to strike the  
               punishment for the enhancement and does so.  The use of a  
               fact of an enhancement to impose the upper term of  
               imprisonment is an adequate reason for striking the  
               additional term of imprisonment, regardless of the effect  
               on the total term.

                 A fact that is an element of the crime upon which  
               punishment is being imposed may not be used to impose a  
               greater term. 

                 The reasons for selecting one of the three authorized  
               prison terms referred to in section 1170(b) must be stated  
               orally on the record, including where the court imposes the  
               middle term.  (Cal. Rule of Court, 4.420.)

          Existing U.S.  Supreme Court decisional law establishes that  









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          California's determinate sentencing law prior to the enactment  
          of SB 40 (Romero) in 2007 violated the right of the accused to a  
          trial by jury, as guaranteed by the Sixth Amendment to the  
          United States Constitution.  (Cunningham v. California (2007)  
          549 U.S. 270.)

          Existing U.S. Supreme Court decisional law established that to  
          adjust California's sentencing law to make it conform to  
          Constitutional requirements, California may either require  
          juries "to find any fact necessary to the imposition of an  
          elevated sentence" or "permit judges genuinely 'to exercise  
          broad discretion . . . within a statutory range.'"  (Cunningham  
          v. California, supra, 549 U.S. 270 - Decision Syllabus.)

          Existing law amended Penal Code sections 1170 and 1170.3, in  
          response to the Cunningham decision, to make the choice of  
          lower, middle, or upper prison term one within the sound  
          discretion of the court.  (SB 40 (Romero) - Ch. 3, Stats. 2007.)  
           

          Existing law includes the following uncodified legislative  
          findings that were adopted as part of SB 40 (2007):  "It is the  
          intent of the Legislature in enacting this provision to respond  
          to the decision of the United States Supreme Court in Cunningham  
          v. California ?  It is further the intent of the Legislature to  
          maintain stability in California's criminal justice system while  
          the criminal justice and sentencing structures in California  
          sentencing are being reviewed.

          Existing law amending Penal Code sections 1170 and 1170.3 (SB  
          40) also included a "sunset" provision, declaring that its  
          provisions would remain in effect only until January 1, 2009,  
          unless a later enacted statute, that is enacted before that  
          date, deletes or extends that date.  Subsequent legislation has  
          extended that sunset date and these provisions will currently  
          remain in effect until January 1, 2017.  (SB 463 (Pavley) Ch.  
          598 Stats. 2013.)

          Existing law provides that certain sentencing enhancements carry  
          an additional penalty of a lower, middle, or upper term of  
          years.  These sections were amended in response to the  
          Cunningham decision, to make the choice of lower, middle, or  
          upper prison term one within the sound discretion of the court.   









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          (SB 150 (Wright), Ch. 171, Stats. 2009; Penal Code §§ 186.22,  
          186.33, 12021.5, 12022.2, 12022.3, 12022.4.)  SB 150 also  
          included a "sunset" provision, declaring that its provisions  
          would remain in effect only until January 1, 2011, unless a  
          later enacted statute deletes or extends that date.  The sunset  
          date on enhancement triads has also been extended to January 1,  
          2017.  (SB 463 (Pavley) Ch. 598 Stats. 2013.)

          Existing law provides that prior convictions used to enhance a  
          defendant's sentence or subject the defendant to a special  
          sentencing scheme, including the Three Strikes law, must be  
          alleged in the charging document and proved the jury (or court  
          in a court trial) beyond a reasonable doubt.  (Pen. Code §  
          1025.) 

          Existing decisional law grants a court discretion to "bifurcate"  
          trial of prior conviction allegations used to enhance a  
          defendant's sentence, such that trial of the prior conviction  
          allegations is only held after the jury has convicted the  
          defendant on the underlying criminal charges.  (People v.  
          Calderon (1994) 9 Cal.4th 69, 72-79.)

          Existing decisional law provides that neither the defendant not  
          the prosecution has a right to "unitary" trial on the prior  
          conviction allegations conducted before the jury in conjunction  
          with the underlying criminal charges.  (Id., at p. 72; People v.  
          Cline (1998) 60 Cal.App.4th 1327, 1332-1335.)<1>

          Existing provision of the California Constitution provide that  
          prior convictions can be used without limitation for impeachment  
          or enhancement of sentence.  "When a prior felony conviction is  
          an element of any offense, it shall be proven to the jury in  
          open court."  (Cal. Const., Art. I, § 28 (d).) 

          This bill would extend the sunset dates in these sentencing  
          provisions to January 1, 2022.

          ---------------------------
          <1> Defendants typically request bifurcation of prior conviction  
          allegations.  Prosecutors have requested bifurcation in some  
          Three Strikes cases - particularly before Three Strikes reform  
          in 2012 - to prevent jurors from acquitting the defendant to  
          spare him or her from a life term for a relatively minor felony.  
           (Cline at p. 1332-1336.) 








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                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  









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          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1.Need for This Bill

          According to the author:

               In the 1970's, the State of California, under Governor  
               Jerry Brown, implemented a new sentencing scheme  
               designed to bring conformity to felony sentencing and  
               prevent continued disparities in sentence length  
               across different ethnic and socioeconomic groups.  
               California's determinate sentencing law provided the  
               courts with a three-tiered sentencing option  
               consisting of a higher, more-severe term, a middle  
               term, and a lower, less-severe term.  Additionally,  
               the law required that the middle term be the  
               presumptive sentence, unless the court found  
               mitigating or aggravating circumstances justifying an  
               upper or lower term. 

               In 2007, the Supreme Court of the United States ruled  
               in the Cunningham v. California decision that  









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               California's determinate sentencing statute violated  
               the Sixth Amendment. The determinate sentencing scheme  
               relied on finding a defendant guilty of the initial  
               criminal charge beyond a reasonable doubt, through a  
               jury trial, but allowed a judge to use a lower  
               standard of preponderance of evidence when finding  
               aggravating circumstances to sentence at the upper  
               term. 

               The Supreme Court suggested two possible remedies to  
               deal with the constitutional issues they outlined in  
               Cunningham. Through SB 40 (Romero) in  2007, the  
               Legislature chose to give judges discretion to  
               determine which of the three terms to impose, rather  
               than requiring any specific findings of fact by a  
               judge. The measure also removed the statutory  
               requirement that judges use the middle term as the  
               presumptive sentencing term and instead provided the  
               courts with ability to sentence in the best interest  
               of justice.

               The legislative fix put in place by SB 40 (Romero)  
               included a sunset date which has been extended and  
               reviewed by the Legislature in four different bills,  
               almost all of which received no opposition votes. The  
               current determinate sentencing laws sunset on January  
               1, 2017, and if the sunset date is not extended,  
               California's entire sentencing scheme will become  
               unconstitutional once again. SB 1016 will extend the  
               sunset to January 1, 2022, and continue to allow the  
               choice of which of the three determinate sentencing  
               options apply to an offender to rest within the sound  
               discretion of the court.

               Many of the arguments presented in the initial vetting  
               of SB 40 (Romero) in policy committees have never  
               materialized, and the Legislature has not yet found a  
               more effective fix then to continue to allow judicial  
               discretion. This can be seen in the California  
               Department of Corrections and Rehabilitation's Upper  
               Term Sentencing Reports, which show that in the eight  
               years since SB 40 (Romero) became law, Judges have  
               only sentenced defendants to the upper term 16% of the  









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               time, opting for the middle or lower term in 84% of  
               convictions.


          2.Background: The Holding in Cunningham v. California:  
            California's Determinate Sentencing Law was Unconstitutional

          California's determinate sentencing law (DSL) provides that  
          crimes may be punished by one of three prison terms in a  
          "triad," referred to as the lower, middle, or upper term.  Prior  
          to SB 40, Section 1170 stated that, ". . . when a judgment of  
          imprisonment is to be imposed and the statute specifies three  
          possible terms, the court shall order imposition of the middle  
          term, unless there are circumstances in aggravation or  
          mitigation of the crime."  (Pen. Code § 1170, subd. (b).)   
          Having established this system of sentencing "triads," the  
          Legislature delegated to the Judicial Council the duty to adopt  
          rules to guide the trial judge in making a decision to impose  
          the lower, middle, or upper prison term.  (Pen. Code § 1170.3.)   
          According to the Rules of Court established by the Judicial  
          Council prior to SB 40, in sentencing a defendant under the DSL,  
          "[t]he middle term must be selected unless imposition of the  
          upper or lower term is justified by circumstances in aggravation  
          or mitigation."  (Cal. Rules of Court, Rule 4.420(a).)

          Prior to SB 40, the Rules of Court, Rule 4.420(b) further  
          required that, "[c]ircumstances in aggravation and mitigation  
          must be established by a preponderance of the evidence.   
          Selection of the upper term is justified only if, after a  
          consideration of all the relevant facts, the circumstances in  
          aggravation outweigh the circumstances in mitigation.  The  
          relevant facts are included in the case record, the probation  
          officer's report, other reports and statements properly  
          received, statements in aggravation or mitigation, and any  
          further evidence introduced at the sentencing hearing.   
          Selection of the lower term is justified only if, considering  
          the same facts, the circumstances in mitigation outweigh the  
          circumstances in aggravation."  

          In 2000, in the landmark ruling in Apprendi v. New Jersey, the  
          U.S. Supreme Court held that, "the Federal Constitution's  
          jury-trial guarantee proscribes a sentencing scheme that allows  
          a judge to impose a sentence above the statutory maximum based  









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          on a fact, other than a prior conviction, not found by a jury or  
          admitted by the defendant."  (Cunningham v. California, supra,  
          549 U.S. 270, 274-275, citing Apprendi v. New Jersey (2000) 530  
          U.S. 466; Ring v. Arizona (2002) 536 U.S. 584; Blakely v.  
          Washington (2004) 542 U.S. 296; and United States v. Booker  
          (2005) 543 U.S. 220.)  The Supreme Court clarified this  
          principle in Blakely v. Washington as follows:  "The relevant  
          statutory maximum, is not the maximum sentence a judge may  
          impose after finding additional facts, but the maximum he may  
          impose without any additional findings."  (Blakely,  supra  , 542  
          U.S., at 303-304, emphasis in original.)  The United States  
          Supreme Court has recently extended Apprendi to clarify that it  
          applies to any fact that authorizes imposition of a sentence in  
          excess of the statutory minimum or maximum.  (Alleyne v. United  
          States (2013) 186 L.Ed.2nd 314

          In finding that California's DSL, prior to SB 40, violated the  
          right to a trial by jury, as defined under Apprendi, the Supreme  
          Court stated, "California's DSL, and the rules governing its  
          application, direct the sentencing court to start with the  
          middle term, and to move from that term only when the court  
          itself finds and places on the record facts - whether related to  
          the offense or the offender - beyond the elements of the charged  
          offense."  (Cunningham v. California, supra, 549 U.S. 270, 279.)  
           Because the DSL required the judge, in order to impose the  
          upper term, to find facts that were not elements of the offense  
          found true by the jury, and because the court could find those  
          facts by a preponderance of the evidence as opposed to the  
          higher standard of beyond a reasonable doubt, the DSL did  
          exactly what was forbidden under Apprendi, namely, it "allow[ed]  
          a judge to impose a sentence above the statutory maximum based  
          on a fact, other than a prior conviction, not found by a jury or  
          admitted by the defendant."  (Apprendi, supra, 530 U.S. 466.)   
          "This Court has repeatedly held that, under the Sixth Amendment,  
          any fact that exposes a defendant to a greater potential  
          sentence must be found by a jury, not a judge, and established  
          beyond a reasonable doubt, not merely by a preponderance of the  
          evidence."  (Cunningham v. California, supra, 549 U.S. 270,  
          281.)

          3.SB 40 (2007) Amended California's DSL to Satisfy  
            Constitutional Requirements










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          The Supreme Court in Cunningham provided clear direction as to  
                                                                        what steps California's Legislature could take to address the  
          DSL's Constitutional infirmities.  "As to the adjustment of  
          California's sentencing system in light of our decision, the  
          ball . . . lies in [California's] court.  ? [S]everal States  
          have modified their systems ? to retain determinate sentencing  
          ?. by calling upon the jury - either at trial or in a separate  
          sentencing proceeding - to find any fact necessary to the  
          imposition of an elevated sentence.  As earlier noted,  
          California already employs juries in this manner to determine  
          statutory sentencing enhancements.  Other States have chosen to  
          permit judges genuinely to exercise broad discretion . . .  
          within a statutory range, which, everyone agrees, encounters no  
          Sixth Amendment shoal.  California may follow the paths taken by  
          its sister States or otherwise alter its system, so long as the  
          State observes Sixth Amendment limitations declared in this  
          Court's decisions.  (Cunningham v. California, supra, 549 U.S.  
          270, 293-294, citations and footnotes omitted.)

          SB 40 amended California's DSL to give judges the discretion to  
          impose the lower, middle, or upper term without the need for  
          additional fact-finding.  In addition, SB 40 included  
          legislative intent language stating that its purpose was to  
          address Cunningham, and to stabilize the criminal justice system  
          while sentencing and correctional policies in California are  
          being reviewed.

          4.Sentence Enhancements Containing Three Possible Terms 

          Most sentence enhancements provide for a single term of years.   
          (See e.g., Pen. Code § 667, subd. (a) - 5 years for each prior  
          serious felony conviction.)  Some sentence enhancements,  
          however, like the term for the underlying conviction, provide  
          that the court must select one of three possible terms, a lower,  
          middle or upper term.  (See e.g. Pen. Code § 12022.5, subd. (a),  
          imposing a sentence enhancement of 3, 4 or 10 years for  
          personally using a firearm in the commission of a felony.)

          Penal Code Section 1170.1, subdivision (b), instructs sentencing  
          judges how to impose sentence enhancements where there is a  
          choice of terms, "If an enhancement is punishable by one of  
          three terms, the court shall impose the middle term unless there  
          are circumstances in aggravation or mitigation, and state the  









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          reasons for its sentencing choice, other than the middle term,  
          on the record at the time of sentencing."  Although in  
          Cunningham, the Court found that sentence enhancements, per se,  
          in California, did not violate the right to have a jury decide  
          all facts that could increase the sentence; the Court did not  
          address the specific issue of those enhancements that carry a  
          choice of terms.  (See Cunningham v. California, supra, 549 U.S.  
          270.)  

          After the enactment of SB 40, the California Court of Appeal  
          found that section 1170.1 "suffers from the identical  
          constitutional infirmities identified by the United States  
          Supreme Court in Cunningham ? and is similarly unconstitutional.  
           The Legislature has taken no step to amend this provision to  
          render it compliant with the Sixth Amendment . . ."  (People v.  
          Lincoln (2007) 157 Cal. App. 4th 196, 205.  The enactment of SB  
          150 (Wright), Ch. 171, Stats. of 2009, did just that.  SB 150  
          applied the same "fix" to sentence enhancement triads that SB 40  
          applied to the base term triads:  It authorized the court to  
          impose any of the three terms without making any additional  
          factual findings.  This approach was expressly approved by the  
          California Supreme Court in People v. Sandoval (2007 41 Cal.4th  
          825, 844-845 (2007).)  The changes to the rules concerning  
          imposition of an enhancement from a choice of three terms were  
          also extended until January 1, 2017 in SB 463 (Pavley), Ch. 598,  
          in 2013.

          5.The Trial Court need not formally find a Specific Fact to  
            Impose an Upper Term, but there are Limits on a Court's  
            Authority to Impose an Upper Term 

          Prior to Cunningham, the trial court had to make a finding of a  
          specific fact to impose the upper term.  After SB 40, the court  
          simply had to articulate a reason for imposing the upper term.   
          The defendant could previously argue on appeal that there was  
          insufficient evidence of the aggravating fact, while now a  
          defendant must establish that the court abused its discretion in  
          relying on a particular reason to impose an upper term.   
          However, as a practical matter, a court seldom had difficulty  
          finding a fact to impose the upper term prior to the decision in  
          Cunningham.  Nevertheless, regardless of whether an upper term  
          is supported by a finding of fact or imposed through the sound  
          discretion of the court, the aggravating factor or reason  









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          supporting an upper term must reflect that the defendant's crime  
          is distinctly worse than the average conviction for that same  
          crime.  (People v. Black (2007) 41 Cal.4th 799, 817; People v.  
          Moreno (1982) 128 Cal.App.3d 103, 110.)

          Further, California law - from the time of the enactment of the  
          DSL in 1976 - has prohibited the court from using a fact that  
          underlies an enhancement as a reason to impose the upper term.   
          (Pen. Code § 1170, subd. (b).) For example, if a defendant is  
          convicted of burglary and the prosecutor proved an enhancement  
          allegation that the defendant used a firearm, the court can  
          impose an enhancement for the firearm, but it cannot rely on the  
          use of a firearm to impose the upper term.   The court can rely  
          on firearm use to impose an upper term, but the court cannot  
          impose punishment for the enhancement.  This rule is part of  
          broader prohibition on the "dual use" of the same fact to impose  
          more than one punishment.

          6.Rates of Upper Term Sentences Since 2006

          Concerns were raised that SB 40 (Romero) in 2007 would result in  
          a substantial increase in upper term sentences.  SB 40 went into  
          effect on March 31, 2007.  However, any analysis of upper term  
          sentencing practices must be divided into two distinct periods -  
          the years prior to implementation of realignment and the years  
          after realignment was enacted.  Inmates committed prior to  
          realignment are a substantially different and more diverse  
          population than inmates committed after realignment.  After  
          realignment, only defendants with prior or current serious  
          felony convictions or who were required to register as sex  
          offenders were sent to prison.  These inmates generally had much  
          longer and more serious criminal records than those sentenced to  
          felony county jail terms.  They include many defendants  
          sentenced for gang crimes.  One significant exception to that  
          rule is drug commerce offenders with enhancements for prior  
          convictions and for cases that involved exceptionally large  
          amounts of drugs.  These inmates often have relatively long  
          criminal records and can be sentenced to relatively long terms  
          in comparison to other felony jail inmates. 

          The charts below are split into separate tables for pre and  
          post-realignment sentences for men and for women.










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           Upper Term Sentences from 2006-2010 - the Year Prior to SB 40  
            until Enactment of Criminal Justice Realignment

          Year                     Total Commitments Upper Terms

           ----------------------------------------------------------------- 
          |2006                 |62,491               |9,455 - 14.3%        |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2007                 |60,581               |7,612 - 12.5 %       |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2008                 |59,498-              |8,962 - 14.3 %       |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2009                 |57,093 -             |9,213 - 16.5 %       |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2010                 |52,375               |9,358 - 16 %         |
          |                     |                     |                     |
           ----------------------------------------------------------------- 


           Upper Term Sentences for Men after Enactment of Realignment

          Year                     Total Commitments Upper Terms

           ----------------------------------------------------------------- 
          |2011                 |45,934               |8,633 - 20 %         |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2012                 |31,817               |7,051 - 23 %         |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2013                 |34,714               |6,850 - 20 %         |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2014                 |34,789               |7,572 - 25 %         |
          |                     |                     |                     |
          |                     |                     |                     |
           ----------------------------------------------------------------- 
          










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           Upper Term Sentences for Women from the year prior to SB 40  
            until Realignment

          Year                     Total Commitments Upper Terms

           ----------------------------------------------------------------- 
          |2006                 |8,038                |859 - 11%            |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2007                 |7,845                |728 -   9%           |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2008                 |7,917                |856  - 11%           |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2009                 |7,150                |832  - 12.5%         |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2010                 |6,811                |912 -  14.3%         |
          |                     |                     |                     |
          |                     |                     |                     |
           ----------------------------------------------------------------- 


           Upper Term Sentences for Women from Realignment through 2014

          
           ----------------------------------------------------------------- 
          |2011                 |5,177                |735  - 14.3%         |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2012                 |2,180                |340 -  16.7%         |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2013                 |2,624                |420 -   16.7%        |
          |                     |                     |                     |
          |---------------------+---------------------+---------------------|
          |2014                 |2,616                |478 -   16.7%        |
          |                     |                     |                     |
          |                     |                     |                     |
           ----------------------------------------------------------------- 











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          It is difficult to draw conclusions about whether courts have  
          changed sentencing patterns in imposing upper terms from this  
          data.   As noted above, after the October 1, 2011 effective date  
          of Criminal Justice Realignment, only defendants with current or  
          prior serious felony convictions, or those required registering  
          as sex offenders, were sentenced to prison.<2>  Inmates with  
          less serious criminal histories and convicted of less serious  
          crimes served executed felony sentences in county jails.  

          This data also does not reveal if average sentence lengths have  
          increased over this time.  Increases in the proportion of upper  
          term sentences do not necessarily mean that average sentence  
          lengths have increased.  As a practical matter, virtually all  
          defendants who must serve their sentences in prison are subject  
          to at least two-strike sentences under the Three Strikes law.  A  
          two strike sentence requires the court to double the sentence  
          otherwise imposed.  The court, however, can strike or dismiss  
          the prior strike allegation and impose an upper term, imposing a  
          shorter sentence than without a doubled middle or lower term.   
          Courts usually have a wide range of sentencing choices available  
          to them.  A reason to impose an upper term sentence cannot be  
          used to impose an enhancement.  A court could impose the upper  
          term and strike (choose not to impose) an enhancement with a  
          longer term than the increase from the middle term to the upper  
          term.  

          7.  Sunset Provisions in Prior Bills and This Bill

          SB 40, by its own terms, was intended to maintain stability in  
          California's criminal justice system while the broader  
          sentencing policy issues in California are being reviewed.  SB  
          40 was introduced a few months after the Governor declared a  
          state of emergency as a result of prison overcrowding.  (Prison  
          Overcrowding State of Emergency Proclamation, Proclamation by  
          the Governor of the State of California, October 4, 2006.  
          http://gov.ca.gov/index.php ?/proclamation/4278/.)  The  
          ---------------------------

          <2> Defendants convicted under Penal Code Section 186.11 of  
          white collar fraud in which the amount taken by the defendant or  
          lost by the victim exceeded $100,000 also serve sentences in  
          prison.  Such defendants would be a particularly small  
          proportion of the prison population.  (Pen. Code § 1170, subd.  
          (h)(3)








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          legislative responses to Cunningham have been enacted numerous  
          times with a sunset provision on each occasion. This bill  
          includes a five-year sunset until January 1, 2022.

                                      -- END -