BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1202|
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THIRD READING
Bill No: SB 1202
Author: Leno (D)
Amended: 5/31/16
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 4-1, 4/12/16
AYES: Hancock, Leno, Liu, Monning
NOES: Stone
NO VOTE RECORDED: Anderson, Glazer
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/27/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
SUBJECT: Sentencing
SOURCE: California Attorneys for Criminal Justice
DIGEST: This bill provides 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.
ANALYSIS:
Existing law:
1) Provides that when a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the
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Page 2
choice of the appropriate term shall rest within the sound
discretion of the court. (Pen. Code § 1170, subd. (b).)
2) 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).)
3) 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).)
4) Provides that the Judicial Council shall seek to promote
uniformity in sentencing under Section 1170, by:
a) The adoption of rules providing criteria for the
consideration of the trial judge at the time of sentencing
regarding the court's decision to grant or deny probation;
impose the lower, middle, or upper prison term; impose
concurrent or consecutive sentences; and determine whether
or not to impose an enhancement where that determination
is permitted by law.
b) 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.)
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5) Provides the following in applicable court rules:
a) 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.
b) 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.
c) 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.
d) A fact that is an element of the crime upon which
punishment is being imposed may not be used to impose a
greater term.
e) 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.)
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6) Declares in a U.S. Supreme Court decision that California's
determinate sentencing law (DSL) prior to the enactment of SB
40 (Romero, Chapter 3, Statutes of 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.)
7) Provides that 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.)
8) Provides, in response to the Cunningham decision, that the
trial court makes the choice of lower, middle, or upper
prison term within its sound discretion. (SB 40)
9) Includes the following uncodified legislative findings that
were adopted as part of SB 40: "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."
10)Includes a "sunset" provision, declaring that the SB 40
Cunningham fix will remain in effect until January 1, 2017.
11)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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12)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.)
13)Grants a court discretion to "bifurcate" jurytrial of prior
conviction allegations used to enhance a defendant's sentence
from underlying charges. (People v. Calderon (1994) 9
Cal.4th 69, 72-79.)
14)Provides that neither the defendant not the prosecution has
a right to "unitary" jury trial on the charges and prior
conviction allegations. (Id., at p. 72; People v. Cline
(1998) 60 Cal.App.4th 1327, 1332-1335.)
This bill:
1) 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.
2) 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.
3) 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.
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4) 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.
5) 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.
6) 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.
7) 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.
Background
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
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"factors," not "facts" in aggravation when imposing an
enhanced sentence. The current Cunningham "fix" expires
on January 1, 2017.
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
provide a mechanism to lower sentences on the front end.
California's 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 in 2007, 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.
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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."
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.)
In finding that California's DSL, prior to SB 40, violated the
right to a trial by jury the Supreme Court stated, "California's
DSL, and [applicable] rules ?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 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, the DSL did exactly what was
forbidden under Apprendi.
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. Other States have chosen to
permit judges genuinely to exercise broad discretion . . .
within a statutory range, which, everyone agrees, encounters no
Sixth Amendment shoal." (Cunningham v. California, supra, 549
U.S. 270, 293-294, citations and footnotes omitted.)
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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.
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 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 that there was insufficient evidence of
the aggravating fact, while now a defendant must establish that
the court abused its discretion in imposing an upper term. A
court seldom had difficulty finding a fact to impose the upper
term prior to the decision in Cunningham. Nevertheless, the
aggravating factor supporting an upper term must reflect that
the defendant's crime is distinctly worse than the average.
(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).)
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. To address this
issue, this bill requires 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
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FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
Bifurcated trials: Potentially major increase in ongoing
costs to the state trial courts in the millions of dollars
(General Fund*) annually to plead and prove aggravating facts
in bifurcated trials. To the extent 25 percent to 50 percent
of an estimated 5,000 felony trials involving a fact alleged
in aggravation takes an average of one court day (eight
hours), assuming an hourly court cost of $837, annual costs
could range between $8.4 million to $16.7 million. To the
extent the number and duration of bifurcated trials is greater
or less than assumed above, actual costs would be adjusted
accordingly.
State prisons: Unquantifiable, but potentially significant
increases or decreases in future state prison costs (General
Fund) to the extent this measure results in longer or shorter
prison terms than imposed under the existing DSL. Even a minor
change to resulting sentences drives significant costs or
savings, given the large base of offenders and the significant
unit cost to incarcerate an offender.
County jails: Potentially significant increases or decreases
in local jail costs (Local Funds) to the extent this bill
results in longer or shorter felony jail terms as a result of
bifurcated trials.
SUPPORT: (Verified5/31/16)
California Attorneys for Criminal Justice (source)
California Catholic Conference, Inc.
California Public Defenders Association
Drug Policy Alliance
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
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OPPOSITION: (Verified5/31/16)
California District Attorneys Association
California State Sheriffs' Association
Prepared by:Jerome McGuire / PUB. S. /
5/31/16 21:42:47
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