BILL ANALYSIS Ó
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Date of Hearing: June 14, 2016
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
1016 (Monning) - As Introduced February 11, 2016
SUMMARY: Extends the sunset date from January 1, 2017 to
January 1, 2022 for provisions of law which provide that the
court shall, in its discretion, impose the term or enhancement
that best serves the interest of justice, as required by SB 40
(Romero), Chapter 40, Statutes of 2007; SB 150 (Wright), Chapter
171, Statutes of 2009; and Cunningham vs. California (2007) 549
U.S. 270.
EXISTING LAW:
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1)Declares that the purpose of imprisonment for crime is
punishment; that this purpose is best served by terms
proportionate to the seriousness of the offense with provision
for uniformity in the sentences of offenders committing the
same offense under similar circumstances; and that the
elimination of disparity, and the provision of uniformity, of
sentences can best be achieved by determinate sentences fixed
by statute in proportion to the seriousness of the offense, as
determined by the Legislature, to be imposed by the court with
specified discretion. (Pen. Code, § 1170, subd. (a)(1).)
2)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).)
3)Provides that when a sentencing enhancement specifies three
possible terms, the choice of the appropriate term shall rest
within the sound discretion of the court. (Pen. Code, §
1170.1(d).)
4)Provides that sentencing choices requiring a statement of a
reason include "[s]electing one of the three authorized prison
terms referred to in section 1170(b) for either an offense or
an enhancement." (Cal. Rules of Court, Rule 4.406(b)(4).)
5)Requires the sentencing judge to consider relevant criteria
enumerated in the Rules of Court. (Cal. Rules of Court, Rule
4.409.)
6)Provides that, in exercising discretion to select one of the
three authorized prison terms referred to in statute, "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,
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other reports and statements properly received, statements in
aggravation or mitigation, and any evidence introduced at the
sentencing hearing." (Cal. Rules of Court, Rule 4.420(b).)
7)Prohibits the sentencing court from using a fact charged and
found as an enhancement as a reason for imposing the upper
term unless the court exercises its discretion to strike the
punishment for the enhancement. (Cal. Rules of Court, Rule
4.420(c).)
8)Prohibits the sentencing court from using a fact that is an
element of the crime to impose a greater term. (Cal. Rules of
Court, Rule 4.420(d).)
9)Enumerates circumstances in aggravation, relating both to the
crime and to the defendant, as specified. (California Rules of
Court, Rule 4.421.)
10)Enumerates circumstances in mitigation, relating both to the
crime and to the defendant, as specified. (California Rules
of Court, Rule 4.423.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "In 2007, the
Supreme Court of the United States ruled in the Cunningham v.
California decision that California's determinate sentencing
statutes violated the Sixth Amendment and were therefore
unconstitutional. The determinate sentencing scheme, in place
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since the 1970's, allowed the courts with a three-tiered
sentencing option consisting of a higher, more-severe term, a
middle term, and a lower, less-severe term.
"The Supreme Court suggested two possible remedies to deal with
the constitutional issues outlined in the Cunningham decision.
Through SB 40 (Romero), Statutes of 2007, the Legislature
chose to implement a change that would allow for judicial
discretion in determining which of the three terms to impose
based on the best interest of justice, rather than requiring
any specific fact finding by a judge outside of the jury
trial. The measure also removed the statutory requirement that
judges use the middle term as the presumptive sentencing term.
"Many of the concerns presented in the initial vetting of SB 40
(Romero) have never materialized, and the Legislature has not
yet found a more effective fix then to continue to allow for
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 time, opting for the
middle or lower term in 84% of convictions.
"The legislative fix put in place by SB 40 (Romero) included a
sunset date which has been extended and approved by the
Legislature through four different bills, almost all of which
received no opposition votes by members of the Legislature.
The current determinate sentencing laws will 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 (Monning) 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."
2)Background: The Sixth Amendment right to a jury applies to
any factual finding, other than that of a prior conviction,
necessary to warrant any sentence beyond the presumptive
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maximum. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490;
Blakely v. Washington (2004) 524 U.S. 296, 301, 303-04.)
In Cunningham v. California (2007) 549 U.S. 270, the United
States Supreme Court held California's Determinate Sentencing
Law (DSL) violated a defendant's right to trial by jury by
placing sentence-elevating fact finding within the judge's
province. (Id. at p. 274.) The DSL authorized the court to
increase the defendant's sentence by finding facts not
reflected in the jury verdict. Specifically, the trial judge
could find factors in aggravation by a preponderance of
evidence to increase the offender's sentence from the
presumptive middle term to the upper term and, as such, was
constitutionally flawed. The Court stated, "Because the DSL
authorizes the judge, not the jury, to find the facts
permitting an upper term sentence, the sentence cannot
withstand measurement against our Sixth Amendment precedent."
(Id. at p. 293.)
The Supreme Court provided direction as to what steps the
Legislature could take to address the constitutional
infirmities of the DSL:
"As to the adjustment of California's sentencing system in light
of our decision, the ball . . . lies in [California's] court.
We note that several States have modified their systems in
the wake of Apprendi and Blakely to retain determinate
sentencing. They have done so 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, supra, 549 U.S. at pp. 293-294.)
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Following Cunningham, the Legislature amended the DSL,
specifically Penal Code Sections 1170 and 1170.1, to make the
choice of lower, middle, or upper prison term one within the
sound discretion of the court. (See SB 40 (Romero), Chapter
3, Statutes of 2007.) This approach was embraced by the
California Supreme Court in People v. Sandoval (2007) 41
Cal.4th 825, 843-852. The new procedure removes the mandatory
middle term and the requirement of weighing aggravation
against mitigation before imposition of the upper term. Now,
the sentencing court is permitted to impose any of the three
terms in its discretion, and need only state reasons for the
decision so that it will be subject to appellate review for
abuse of discretion. (Id. at pp. 843, 847.)
3)Sunset Provision: 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. Thus,
SB 40, by its own terms, was intended to be a temporary
measure. The provisions of SB 40 originally were due to
sunset on January 1, 2009, but were later extended to January
1, 2011. Since then, the Legislature has extended the sunset
provisions several times. This bill extends those sunset
dates to January 1, 2022.
4)Is the Current Method Still Constitutionally Infirm? The
United States Supreme 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. at 281.) The Court has with
increasing frequency in recent years insisted on the jury's
essential role in resolving factual issues related to
sentencing. (See e.g. Southern Union Co. v. United States
(2012) 132 S.Ct. 2344 [The rule of Apprendi applies to the
imposition of criminal fines].) In fact, in 2013 the Court
once again considered the scope of the Sixth Amendment in the
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sentencing context in a case involving mandatory-minimum
sentencing schemes, and held that any fact that increases the
mandatory minimum is an "element" that must be submitted to
the jury. (See Alleyne v. United States (2013) 133 S. Ct.
2151, overruling Harris v. United States (2002) 536 U.S. 545.)
The Court explained that the logic of Apprendi requires a
jury to find all facts that fix the penalty range of a crime.
The mandatory minimum is just as important to the statutory
range as is the statutory maximum. (Id. at pp. 2160-2161.)
One of the most important sentencing labels that must be
scrutinized in assessing a sentencing determination for
Apprendi/Blakely error is "judicial discretion." The Supreme
Court stated in Apprendi that it was not eliminating judicial
discretion over sentencing. (Apprendi, supra, 530 U.S. at p.
482.) However, in Blakely, the Court also held that the
exercise of judicial discretion is unconstitutional if it
relies on a fact not found true by the jury, in whose absence
the state's sentencing laws would require a lower sentence.
(Blakely, supra, 124 S.Ct. at pp. 2537-2538.) Simply because
a state's sentencing laws say that they are giving a judge
discretion, even broad discretion, to make a particular
determination affecting the defendant's sentence does not mean
that the exercise of that discretion is immune from an
Apprendi/Blakely challenge. Unless the state has given the
sentencing court unfettered discretion to do whatever it wants
to in making a particular determination that affects the
defendant's sentence, the exercise of that discretion will
potentially be susceptible to such a challenge.
Because Penal Code Section 1170 continues to require judicial
findings as a predicate to the imposition of an aggravated
term, it arguably still violates the Sixth Amendment. While
the trial court "will not be required to cite 'facts' that
support its decision or to weigh aggravating and mitigating
circumstances" (People v. Sandoval, supra, 41 Cal.4th at pp.
846-847, citing Section 1170, subd. (c)), as adopted by the
California Supreme Court, Penal Code Section 1170 requires the
judge to enter "reasons" supporting the exercise of his or her
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sentencing discretion on the record. (Id. at p. 844; see also
Penal Code Section 1170(b).) Those reasons remain governed by
the California Rules of Court. (People v. Sandoval, supra, 41
Cal.4th at 844; Penal Code Section 1170.3(a)(2).) And the
Rules of Court, which lay out the permissible bases for trial
courts to impose an upper or lower term, have not changed.
Rule 4.421, listing circumstances in aggravation, distinguishes
between factors relating to the crime and factors relating to
the defendant. The aggravating factors relating to the crime
are: "(1) The crime involved great violence, great bodily
harm, threat of great bodily harm, or other acts disclosing a
high degree of cruelty, viciousness, or callousness; (2) The
defendant was armed with or used a weapon at the time of the
commission of the crime; (3) The victim was particularly
vulnerable; (4) The defendant induced others to participate in
the commission of the crime or occupied a position of
leadership or dominance of other participants in its
commission; (5) The defendant induced a minor to commit or
assist in the commission of the crime; (6) The defendant
threatened witnesses, unlawfully prevented or dissuaded
witnesses from testifying, suborned perjury, or in any other
way illegally interfered with the judicial process; (7) The
defendant was convicted of other crimes for which consecutive
sentences could have been imposed but for which concurrent
sentences are being imposed; (8) The manner in which the crime
was carried out indicates planning, sophistication, or
professionalism; (9) The crime involved an attempted or actual
taking or damage of great monetary value; (10) The crime
involved a large quantity of contraband; and (11) The
defendant took advantage of a position of trust or confidence
to commit the offense."
Many of these offense factors involve conduct that is the same
conduct proscribed by various sentence enhancements which must
be charged and proven to a jury. For example, that the crime
involved great violence or bodily harm is substantially
similar to the great bodily injury enhancement (Penal Code
Section 12022.7); that the defendant was armed with or used a
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weapon encompasses the same conduct as an arming enhancement
(Pen. Code, § 12022); that the crime involved a taking or
damage of great monetary value mirrors the value-of-loss
enhancement (Pen. Code, § 12022.6); and that the crime
involved a large quantity of contraband is akin to the weight
enhancement for controlled substance violations. (Health &
Saf. Code, § 11370.4.)
Moreover, under the Rules of Court, it remains the case that
"[a] fact that is an element of the crime may not be used to
impose a greater term." (Cal. Rules of Court, Rule 4.420(d).)
Similarly, Penal Code section 1170, subdivision (b) continues
to provide that "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."
It really should not matter that the factors outlined in the
Rules of Court are now called "reasons" rather than "facts."
"If a State makes an increase in a defendant's authorized
punishment contingent on the finding of a fact, that fact - no
matter how the State labels it - must be found by a jury
beyond a reasonable doubt." . . . "[T]he characterization of
a fact or circumstance as an 'element' or a 'sentencing
factor' is not determinative of the question 'who decides,'
judge or jury," . . . . (United States v. Booker, supra, 543
U.S. at 231.) Since under reformed Penal Code Section 1170,
it is still the case that an upper-term sentence must be based
on factors in the Rules of Court, arguably the sentencing
scheme still violates a defendant's Sixth Amendment rights, at
least as to offense-based factors relied upon to impose an
upper-term sentence.
5)Argument in Support: According to the California District
Attorneys Association, the sponsor of this bill, "In 2007, the
Supreme Court of the United States held that California's
determinate sentencing law violated the right to a jury trial
because it provided that the middle term of imprisonment was
the presumptive term, and permitted the sentencing court,
without a jury finding, to determine aggravating factors and
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impose the high term (Cunningham v. California (2007) 549 U.S.
270).
"In response to the Cunningham decision, and following the
direction of the Court, the Legislature passed SB 40 (Romero,
2007), which eliminated the middle term as the presumptive
term, and provided that when a statute specifies three
possible terms of imprisonment, the choice of the appropriate
term rests within the sound discretion of the court.
"Since the passage of SB 40, the sunset has been extended four
times, most recently by SB 463 (Pavley, 2013).
"This proposal would extend the sunset yet again, to avoid
reverting back to a sentencing scheme that has already been
deemed unconstitutional."
6)Argument in Opposition: According to the California Attorneys
for Criminal Justice (CACJ), "As it was amended, the
California statute essentially eliminates a person's right to
confront the witnesses against them by allowing the judge to
unilaterally impose an upper term, without a finding of
aggravating facts.
"Since 2007, CACJ has sought to eliminate this unconstitutional
sentencing scheme. Alternatively, we've fought against making
this scheme the permanent law of our state. Our organization
has pushed to convene stakeholders to sit and discuss our
current scheme as it has led our state to increase
punishments, over-criminalization, and a continued state
prison overcrowding issue. Since 2007, individuals entering
prison each year with upper term sentences have increased from
15% to 22%, which is a 30% rate increase.
"We believe that 2016 is the year to bring California's felony
sentencing laws into compliance with the Supreme Court's
decision in Cunningham. Our organization is running a bill, SB
1202, which would reinstitute this essential right at trial to
confront the witnesses against them and prevent a judge from
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unilaterally imposing an upper term, without a finding of
aggravating facts.
"Following our state's monumental actions on criminal justice
reform, under Realignment and Propositions 36 & 47, California
must seek options to reduce longer prison sentences at the
front end of the system. Senate Bill 1016 maintains the status
quo, which has proved to be unsuccessful and has lead our
state into the mandated oversight of our prison system. CACJ
is open and welcomes a dialogue on how we can help address our
prison overcrowding and change our felony sentencing schemes
in a positive direction."
7)Related Legislation:
a) SB 1202 (Leno) provides that aggravating factors relied
upon by the court to impose an upper term sentence or
enhancement must be presented to the trier of fact and
found to be true beyond a reasonable doubt. SB 1202 is
pending referral by the Assembly Rules Committee.
b) AB 2513 (Williams) allows the court to consider for
purposes of determining the sentence on a human trafficking
conviction that the defendant recruited or enticed the
victim from a shelter or foster placement if this fact is
found true by the trier of fact. AB 2513 is pending in the
Senate Public Safety Committee.
8)Prior Legislation:
a) SB 40 (Romero), Chapter 3, Statutes of 2007, amended
California's DSL to eliminate the presumption for the
middle term and to state that where a court may impose a
lower, middle or upper term in sentencing a defendant, the
choice of appropriate term shall be left to the discretion
of the court.
b) SB 1701 (Romero), Chapter 416, Statutes of 2008,
extended to January1, 2011, the provisions of SB 40 which
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were originally due to sunset on January 1, 2009.
c) SB 150 (Wright), Chapter 171, Statutes of 2009,
eliminated the presumption of the middle term relating to
sentencing enhancements found in Penal Code Section
1170.1(d).
d) AB 2263 (Yamada), Chapter 256, Statutes of 2010,
extended to January 1, 2012 provisions of law that provide
that the court shall, in its discretion, impose the term or
enhancement that best serves the interest of justice.
e) SB 576 (Calderon), Chapter 361, Statutes of 2011,
extended to January 1, 2014 provisions of law that provide
that the court shall, in its discretion, impose the term or
enhancement that best serves the interest of justice.
f) SB 463 (Pavley), Chapter 598, Statutes of 2013, extended
to January 1, 2017 provisions of law that provide that the
court shall, in its discretion, impose the term or
enhancement that best serves the interest of justice.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association (Sponsor)
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California Police Chiefs Association
California State Sheriffs Association
Los Angeles County District Attorney's Office
Los Angeles County Professional Peace Officers Association
San Diego County District Attorney
The Arc and United Cerebral Palsy California Collaboration
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by:Sandy Uribe / PUB. S. / (916)
319-3744