BILL ANALYSIS Ó
SB 1202
Page 1
Date of Hearing: June 28, 2016
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
1202 (Leno) - As Amended May 31, 2016
SUMMARY: Provides that aggravating factors relied upon by the
court to impose an upper term sentence must be tried to the jury
and found to be true beyond a reasonable doubt. Specifically,
this bill:
1)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.
2)Prohibits imposition of the upper term of imprisonment based
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on aggravating factors unless those are presented to, and
found to be true, by the finder of fact.
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.
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 or
accusatory pleading 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.
EXISTING LAW:
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
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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, subd. (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,
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).)
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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, "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 as
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, i.e. Realignment, 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, absent a finding of aggravating
facts --- a principle that California relied upon since 1979
but was interrupted by the court decision. This bill would
require any aggravating facts to be presented to the jury, and
proved true beyond a reasonable doubt, before being presented
to a judge for the sentencing decision. In essence, this bill
simply ensures facts are vetted by a jury before a judge can
rely on these facts to impose a maximum sentence.
"The bill also restores California's practice of presuming the
middle term for all felonies -- this prevents arbitrariness
and promotes consistency from judge to judge and county to
county. 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 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
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
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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.)
Following Cunningham, the Legislature amended the DSL,
specifically Penal Code sections 1170 and 1170.2, to make the
choice of lower, middle, or upper prison terms 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 procedure removes the mandatory
middle term and the requirement of weighing aggravation
against mitigation before imposition of the upper term. Now,
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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)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
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.)
Perhaps the most important sentencing label 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
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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 § 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
sentencing discretion on the record. (Id. at p. 844; see also
Pen. Code, § 1170, subd. (b).) Those reasons remain governed
by the California Rules of Court. (People v. Sandoval, supra,
41 Cal.4th at 844; Pen. Code, § 1170.3, subd. (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)
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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 (Pen. Code, §
12022.7); that the defendant was armed with or used a weapon
encompasses the same conduct as an arming enhancement (Penal
Code Section 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
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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.
4)Would Jury Trials on Aggravating Factors Burden the Criminal
Justice System? California already provides a statutory
requirement of a jury trial for many enhancing factors. For
example, to subject a defendant to the punishment prescribed
by Penal Code Section 667.61, a jury must find the underlying
facts such as great bodily injury, mayhem or torture, the use
of a deadly weapon, tying or binding, or administration of a
controlled substance by force. (Pen. Code, § 667.61, subds.
(d), (e) and (i).) In a "Three-Strikes" case, a defendant's
prior conviction must be pleaded and proved. (Pen. Code, §
1170.12, subd. (a).) The facts that permit enhancements of
punishments for violating various drug laws must also be
pleaded and proved. (See e.g. Health and Saf. Code, §§
11353.1, subd. (b); 11353.4. subd. (c); 11353.6, subd. (e).)
Moreover, in Blakely, supra, 542 U.S. 296, the United States
Supreme Court acknowledged that a defendant could waive his
Sixth Amendment right and consent to judicial fact-finding
either as part of a plea-agreement or as part of a bifurcated
trial (Id., at p. 310.) As a practical matter, this
procedure is often utilized in California courtrooms. For
example, although a defendant has a statutory right to a trial
by jury on his prior convictions (Pen. Code, § 1025; People v.
Kelii (1999) 21 Cal.4th 452), defendants often waive that
right or admit the priors. Finally, it should also be noted
that most criminal proceedings are resolved by plea.
Therefore, while jury trial on aggravating factors would
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impact the judicial system, not all cases would result in
these trials.
5)Solutions from Other States: Several other states have faced
the same sentencing dilemma as California. Washington was in
the very same position as California in that Washington had
its sentencing structure ruled unconstitutional. (Blakely,
supra, 542 U.S. at pp. 305-306.) In response, the Washington
Legislature created a bifurcated trial process in which a jury
would decide certain aggravating factors after the jury had
found the defendant guilty. (Cunningham, supra, 549 U.S. at
294, fn. 17.) In addition to Washington, several other states
have adopted a bifurcated trial model: Alaska, Arizona,
Kansas, Minnesota, North Carolina, Oregon and Colorado.
(Ibid.; see also Stemen & Wilhelm, Finding the Jury: State
Legislative Responses to Blakely v. Washington, 18 Fed.
Sentencing Rptr. 7 (Oct. 2005) (majority of affected states
have retained determinate sentencing systems).)
6)Argument in Support: According to the California Attorneys
for Criminal Justice, the sponsor of this bill, "Current law
allows for a judge to choose one of three possible terms when
a judgment is imposed: lower, middle, and upper. Until 2007,
California required the granting of the middle term unless
there are factors of aggravation or mitigation to enhance or
reduce the punishment of a crime.
"However, the U.S. Supreme Court, in Cunningham v. California,
59 U.S. 270 (2007), ruled the California statute
unconstitutional because it failed to provide the right of a
jury to determine whether the aggravating factors were true
beyond a reasonable doubt. 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.
"SB 1202 would rectify this elimination of this essential right
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at trial. This bill prevents a judge from unilaterally
imposing an extended prison sentence based on the facts that a
jury never sees or finds to be true. The goal of this bill
still requires people who break the law to be accountable;
nonetheless, the decision to impose a maximum sentence to a
person's term should be determined by the jury or an
independent factfinder and not the judge unilaterally. Since
2007, individuals entering prison each year with upper term
sentences have increased from 15% to 22%, which is a 30% rate
increase.
"The United States Supreme Court, in Cunningham, endorsed the SB
1202 approach as constitutionally valid and protective of
proportional sentencing. The Cunningham court stated,
'[s]everal States have modified their systems in the wake of
Apprendi and Blakely to retain determinate sentencing, by
calling upon the jury to find any fact necessary to the
imposition of an elevated sentence.' Id at 280.
"SB 1202 will also shift our criminal justice system from
reacting to challenges and obstacles to taking a proactive
approach. Following our court-ordered mandate to reduce the
state prison population, California has reacted with several
large criminal justice reforms - realignment, three-strikes
reform, and Proposition 47. Rather than scramble to correct
previous misguided policies on the back-end of the system,
California should move towards addressing these issues on the
front-end. By ensuring that aggravating factors be plead and
proven, this will safeguard unjust and extended prison
sentences."
7)Argument in Opposition: According to the San Diego County
District Attorney's Office, "Under current law, selection of
the lower, middle, or upper term in determining a felony
custodial sentence is vested within the court's sound
discretion. This procedure has been in place since 2007, when
the Legislature approved and the Governor signed SB 40
(Romero) to address the United States Supreme Court's decision
in Cunningham v. California (2007) 549 U.S. 270. This
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procedure has been reaffirmed by the Legislature five times
since SB 40 was approved. Changing course now makes little
sense.
"There are protections against arbitrary selection of the upper
term. The court must state its reasons for selecting a term
on the record. The court may not use an element of the
offense to justify the upper term nor may it use the fact of
any enhancement upon which a sentence is imposed to justify
the upper term.
"Requiring the People to plead and prove aggravating facts
supporting an upper term, and bifurcated trials would unduly
prolong trials and burden already stressed judicial,
prosecutorial, defense and law enforcement resources.
Extensive new jury instructions and Rules of Court would also
have to be drafted.
"Many aggravated factors are ill-suited to jury determination
and have traditionally been entrusted to the sound discretion
of the sentencing judge. Indeed, requiring aggravating
factors to be pleaded by the People and found true by a jury
could result in the presumably unintended outcome that the
upper term might be imposed more frequently."
8)Related Legislation:
a) SB 1016 (Monning) 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. SB 1016 is pending in the Assembly Appropriations
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
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Senate Public Safety Committee.
9)Prior Legislation:
a) AB 765 (Ammiano), of the 2013-14 Legislative Session,
would have prohibited imposition of the upper term of
imprisonment unless aggravating factors are found to be
true by the finder of fact. AB 765 was held on the
Assembly Appropriations suspense file.
b) AB 520 (Ammiano), of the 2011-12 Legislative Session,
would have prohibited imposition of the upper term of
imprisonment unless aggravating factors are found to be
true by the finder of fact. AB 520 was amended to a
different subject matter.
c) 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.
REGISTERED SUPPORT / OPPOSITION:
Support
California Attorneys for Criminal Justice (Sponsor)
American Civil Liberties Union of California
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California Catholic Conference
California Public Defenders Association
Drug Policy Alliance
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Opposition
California District Attorneys Association
California State Sheriffs' Association
Judicial Council of California
Los Angeles County District Attorney
San Diego County District Attorney
Analysis Prepared by:Sandy Uribe / PUB. S. / (916)
319-3744