BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1202 Hearing Date: April 12, 2016
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|Author: |Leno |
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|Version: |March 28, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Sentencing
HISTORY
Source: California Attorneys for Criminal Justice
Prior Legislation:AB 765 (Ammiano) died in Assembly
Appropriations
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 Catholic Conference, Inc; California Public
Defenders Association; Friends Committee on
Legislation of California
Opposition:California District Attorneys Association; California
State Sheriffs' Association
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PURPOSE
The purpose of this bill is to provide that aggravating factors
relied upon by the court to impose an upper term sentence or
enhancement must be tried to the jury and found to be true
beyond a reasonable doubt.
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;
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and
o determine whether or not to impose an
enhancement where that determination is permitted by
law.
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
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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
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
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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.
(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).)
---------------------------
<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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This bill prohibits imposition of the upper term of imprisonment
for a criminal conviction or enhancement allegation unless
aggravating factors are found to be true by the finder of fact.
This bill:
Makes a legislative declaration that, to ensure
proportionality in sentencing, upper terms should be
reserved for cases in which aggravating facts exist and
have been proven to be true.
Provides that the court may not impose an upper term
based on aggravating facts unless the facts were first
presented to the fact-finder and the fact-finder found the
facts to be true.
Requires the court to state on the record at the time of
sentencing the specific facts in aggravation relied upon to
impose an upper term.
This bill provides that a fact pled in the indictment or
information (document setting out the charges) cannot be used as
an aggravating factor at sentencing unless the fact has been
proved to the trier of fact (jury or court in a court trial) or
admitted by the defendant
This bill provides that a prior conviction that has been pled in
the charging document of a jury trial may be proven to the court
to the same extent as permitted prior to the effective date of
this bill.
This bill provides that trial of all facts pled in aggravation
of sentence shall be bifurcated. During trial of the underlying
charges and any enhancement, the jury shall not be informed of
the facts alleged as factors in aggravation unless that fact is
admitted or otherwise relevant to prove an element of a charge
or enhancement and not excluded as overly prejudicial.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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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
Denying in Part Defendants' Request For Extension of December
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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:
Senate Bill 1202 seeks to address the constitutional
defect in our California Felony Sentencing laws. In
2007, the United States Supreme Court, in its decision
in Cunningham v. California, 59 U.S. 270 (2007), found
California's felony sentencing to be unconstitutional.
The court found that judges in California improperly
sentenced persons to longer prison sentences based on
facts that were never presented to the jury and proven
true beyond a reasonable doubt. Following the
Cunningham decision, the legislature sought to cure
this constitutional defect by allowing judges to
consider "factors," not "facts" in aggravation when
imposing an enhanced sentence. This law, implemented
under SB 40 with a sunset provision, has been extended
multiple times since 2007. However, the sunset is set
to expire on January 1, 2017.
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Given California's move towards more thoughtful and
innovative criminal justice reform - Realignment and
Propositions 36 and 47 - 2016 is the year to make a
powerful stance on over-criminalization. Along with
the Governor's ballot measure, SB 1202 seeks to
prevent the unilateral impositions of longer sentences
by judges. This bill would require any aggravating
facts to be presented to the jury, and proved true
beyond a reasonable doubt, before an increased
sentenced can be imposed. Furthermore, this bill would
require judges to state on the record the reasons for
its sentencing choice, including specific facts of
aggravation that led to an imposition of an upper
term. This bill would change California's focus from
addressing issue of over incarceration at the back
end, to providing a mechanism to lower sentences on
the front end. The time has come to make major
sentencing reform changes. SB 1202 will help lead
California.
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
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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
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
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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
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.
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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
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.
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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
The sponsor has argued that Cunningham has made it more
difficult to challenge an improper imposition of an upper term.
Prior to Cunningham, the 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
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.Prejudice Issues and Concerns Raised by Trying Aggravating
Factors That are not Elements of a Crime to the Jury
The most common aggravating factors concern a defendant's
criminal record, including prior convictions, poor performance
on parole or probation and arrests. To avoid the prohibition on
the dual use of a fact to impose more than one punishment, one
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prior conviction can be alleged as the basis of a one-year
enhancement for a prior prison or felony jail term and a
separate conviction can be the basis of an upper term.
The common reliance on the defendant's criminal record and other
"bad acts" to support an upper term reveals the thorniest issue
in this bill. As a long-standing rule of constitutional due
process, the prosecution cannot present evidence that merely
shows the defendant's propensity to commit the charged crime.
This is classic improper character evidence. This evidence is
not inadmissible because it is irrelevant. Rather, such
evidence is immensely powerful. Jurors hearing evidence of a
defendant's criminal record - especially crimes similar to the
one charged offense - are highly likely to convict because the
defendant is a bad person prone to commit crimes, not because
the evidence in the charged offense establishes his or her guilt
beyond a reasonable doubt. (People v. Thompson (1988) 45 Cal.3d
86, 109; People v. Thompson (1980) 27 Cal.3d 303, 318.)
Proof of aggravating factors to the jury would involve numerous
other matters than prior convictions. These could include prior
juvenile adjudications, arrests, poor performance on parole,
conduct in prison, failure to show remorse, failure to pay fines
or restitution, a veritable Pandora's Box of highly prejudicial
matter that would otherwise be grounds for a mistrial if
admitted into evidence.
To address this issue, this bill was recently amended to require
bifurcation of the trial of aggravating factors. That is, trial
on the aggravating factors would be held after the defendant is
convicted of the underlying offense and any enhancement
allegations. Current sentencing law allows a defendant to
bifurcate most prior conviction allegations. These would
include prior convictions to establish an enhancement for a
prior prison term and qualifying Three Strike convictions.
Prior convictions that are elements of an offense - prior felony
conviction in a trial for possession of a gun by a convicted
felon for example - must be tried to the jury. (Cal. Const.
Art. I § 28 (f).) Nevertheless, the defendant can avoid the
prejudicial effect of the jury learning the nature of his or her
prior conviction by admitting the prior conviction so that the
jury learns only that the defendant has been convicted of a
felony.
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7. 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.
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 % |
| | | |
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|---------------------+---------------------+---------------------|
|2010 |52,375 |9,358 - 16 % |
| | | |
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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
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|2006 |8,038 |859 - 11% |
| | | |
|---------------------+---------------------+---------------------|
|2007 |7,845 |728 - 9% |
| | | |
|---------------------+---------------------+---------------------|
|2008 |7,917 |856 - 11% |
| | | |
|---------------------+---------------------+---------------------|
|2009 |7,150 |832 - 12.5% |
| | | |
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|---------------------+---------------------+---------------------|
|2010 |6,811 |912 - 14.3% |
| | | |
| | | |
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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 to register
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
---------------------------
<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)
SB 1202 (Leno ) PageR
of?
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.
-- END -