BILL ANALYSIS
AB 2263
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Date of Hearing: April 13, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2263 (Yamada) - As Amended: March 22, 2010
SUMMARY : Extends 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, 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 US 270 and makes other conforming changes.
EXISTING LAW :
1)States the Legislature finds and declares that the purpose of
imprisonment for crime is punishment. 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. The Legislature further finds and declares
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. [Penal Code Section
1170(a)(1).]
2)Provides that in any case in which the punishment prescribed
by statute for a person convicted of a public offense is a
term of imprisonment in the state prison of any specification
of three time periods, the court shall sentence the defendant
to one of the terms of imprisonment specified unless the
convicted person is given any other disposition provided by
law, including a fine, jail, probation, or the suspension of
imposition or execution of sentence or is sentenced pursuant
to existing law, or because he or she had committed his or her
crime prior to July 1, 1977. In sentencing the convicted
person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there
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are circumstances in mitigation of the punishment prescribed,
shall also impose any other term that it is required by law to
impose as an additional term. Nothing in this article shall
affect any provision of law that imposes the death penalty,
that authorizes or restricts the granting of probation or
suspending the execution or imposition of sentence, or
expressly provides for imprisonment in the state prison for
life. In any case in which the amount of pre-imprisonment
credit under existing law or any other provision of law is
equal to or exceeds any sentence imposed pursuant to this
chapter, the entire sentence shall be deemed to have been
served and the defendant shall not be actually delivered to
the custody of the secretary. [Penal Code Section
1170(a)(2).]
3)Requires 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. At
least four days prior to the time set for imposition of
judgment, either party or the victim, or the family of the
victim if the victim is deceased, may submit a statement in
aggravation or mitigation to dispute facts in the record or
the probation officer's report, or to present additional
facts. In determining whether there are circumstances that
justify imposition of the upper or lower term, the court may
consider the record in the case, the probation officer's
report, and statements in aggravation or mitigation submitted
by the prosecution, the defendant, or the victim, or the
family of the victim if the victim is deceased, and any
further evidence introduced at the sentencing hearing. The
court shall set forth on the record the facts and reasons for
imposing the upper or lower term. 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. [Penal Code Section 1170(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 2263 extends
the sunset date for current statutes authorizing courts to
impose the maximum term on sentences and sentence
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enhancements. This bill is necessary because courts need this
authority for sentencing procedures until a more permanent and
constitutional fix is established. The statutes that allow a
court to impose the upper term in a defendant's base sentence
or for sentence enhancements that include a sentencing range
are set to sunset on January 1, 2011. Unless legislation is
enacted to extend the sunset of these statutes, California's
sentencing laws will be deemed unconstitutional as found by
the United States Supreme Court in Cunningham v. California."
2)Cunningham vs. California and the Sixth Amendment Right to a
Jury Trial : Cunningham held California's Determined
Sentencing Law (DSL) violated the defendant's Sixth Amendment
right to a jury trial because 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 beyond a preponderance of
evidence to increase the offender's sentence from the
presumptive middle term to the upper term and, as such, is
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."
(Cunningham at 21.) Cunningham overruled the California State
Supreme Court in People vs. Black (2005) 35 Cal. 4th 1238.
Black held California's DSL constitutional. The California
Supreme Court stated:
"In operation and effect, the provisions of the California DSL
simply authorize a sentencing court to engage in the type of
fact-finding that traditionally has been incident to the
judge's selection of an appropriate sentence within a
statutorily prescribed sentencing range. Therefore, the upper
term is the 'statutory maximum' and a trial court's imposition
of an upper term sentence does not violate a defendant's right
to a jury trial under the principles set forth in [existing
law]." (Black at 1254.)
The United States Supreme Court relied on several earlier
decisions to justify the holding in this case. In 2000, the
Court ruled in Apprendi vs. New Jersey 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.
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[Apprendi vs. New Jersey (2000) 530 US 466, 490; Cunningham at
1.] The United States Supreme Court further clarified this
"bright-line rule" in Blakely vs. Washington, "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 vs.
Washington (2004) 542 U.S. 296, 303.] In 2005, the United
States Supreme Court struck down portions of the Federal
Sentencing Guidelines (FSG) in Booker vs. United States (2005)
543 U.S. 220. However, the Court saved the FSG by excising
the part of the guidelines it found unconstitutional, namely
the provision making the guidelines binding on district
judges. The Court reasoned:
"If the [FSG] as currently written could be read as merely
advisory provisions that recommended, rather than required,
the selection of particular sentences in response to differing
sets of facts, their use would not implicate the Sixth
Amendment. We have never doubted the authority of a judge to
exercise broad discretion in imposing a sentence within a
statutory range. Indeed, everyone agrees that the
constitutional issues presented by [this case] would have been
avoided entirely if Congress had omitted from the [FSG] the
provisions that make the Guidelines binding on district
judges. . . . For when a trial judge exercises his
discretion to select a specific sentence within a defined
range, the defendant has no right to a jury determination of
the facts that the judge deems relevant."
3)SB 40 (Romero), Chapter 3, Statutes of 2007 Amended the DSL :
While the Supreme Court in its Cunningham decision found that
California's DSL violates the Sixth Amendment, the Court also
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.
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
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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, 2007 U.S. LEXIS 1324
(U.S. 2007), citations and footnotes omitted.]
Because, as the Court stated in Blakely, "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[,]" and because prior to SB 40
under California's DSL a judge could only impose the upper
term after making additional findings of fact, the Court in
Cunningham found that absent any amendment along the lines
stated above the statutory maximum a judge would be authorized
to impose in California is the middle term. [Cunningham v.
California, 2007 U.S. LEXIS 1324 (U.S. 2007).]
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. Similarly, SB 150 (Wright), Chapter
171, Statutes of 2009 applied the SB 40 "fix" to enhancements.
In addition, SB 40 included legislative intent language
stating that its purpose was to address Cunningham and to
stabilize the criminal justice system while sentencing and
correctional policies in California are being reviewed.
4)Argument in Support : According to the Los Angeles County
District Attorneys Office , "SB 40 (Romero) of 2007 corrected a
constitutional flaw in California's sentencing law. SB 150
(Wright) of 2009 extended that constitutional fix to cover
sentence enhancements. In 2007, the United States Supreme
Court held that California's determinate sentencing law
violated a defendant's right to a jury trial because a judge
was required to make factual findings in order to justify
imposing the maximum term of a sentencing triad. [Cunningham
vs. California (2007) 549 U.S. 270.] The Supreme Court
suggested that this problem could be corrected by either
providing for a jury trial on the sentencing issue or by
giving judges discretion to impose a higher term without
additional findings of fact.
"SB 40 (Romero) of 2007 corrected the constitutional problem by
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giving judges the discretion to impose a minimum, medium or
maximum term, without additional findings of fact. SB 40's
approach was embraced by the California Supreme Court in
People vs. Sandoval (2007) 41 Cal.4th 843-852. At the time
Senate Bill 40 passed, it was contemplated that the
Legislature would study California's sentencing law and either
make the SB 40 approach permanent or develop another approach
that also meets constitutional requirements as expressed by
the United States Supreme Court. AB 2263 extends the sunset
on the SB 40 and SB 150 sentencing laws to January 1, 2012, in
order to allow the Legislature to study this issue during the
upcoming Interim Study recess. Without AB 2263, California
determinate sentencing law would return to a structure that
the U.S. Supreme Court has held to be unconstitutional."
5)Related Legislation : SB 150 (Wright), Chapter 171, Statutes
of 2009, provided that where a court imposes a sentence
enhancement with a lower, middle or upper term, as specified,
the choice of term will be within the court's discretion; and
in imposing one of those three sentences, the court must state
its reasons for its sentencing choice on the record, as
specified in SB 40 (Romero), Chapter 3, Statutes of 2007 and
extended those provisions to January 1, 2011.
6)Prior Legislation :
a) SB 1701 (Romero), Chapter 416, Statutes of 2007,
extended the sunset date from January 1, 2009 to January 1,
2011 for which a court sentencing a defendant in the wake
of Cunningham vs. California and the enactment of SB 40
(Romero), Chapter 3, Statutes of 2007, may impose the
lower, middle or upper term of imprisonment, as specified.
b) SB 40 (Romero), Chapter 3, Statutes of 2007 amended
California's DSL to state that where a court may impose a
lower, middle or upper term in sentencing a criminal
defendant, the choice of appropriate term shall be left to
the discretion of the court to sentence in the best
interest of justice.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
AB 2263
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Los Angeles County District Attorneys Association
Opposition
None
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744