BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2263|
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THIRD READING
Bill No: AB 2263
Author: Yamada (D)
Amended: 8/20/10 in Senate
Vote: 27
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/22/10
AYES: Leno, Cogdill, Cedillo, Hancock, Huff, Steinberg,
Wright
SENATE APPROPRIATIONS COMMITTEE : 11-0, 8/12/10
AYES: Kehoe, Ashburn, Alquist, Corbett, Emmerson, Leno,
Price, Walters, Wolk, Wyland, Yee
ASSEMBLY FLOOR : 77-0, 6/1/10 - See last page for vote
SUBJECT : Sentencing: choice of term
SOURCE : Los Angeles County District Attorneys Office
DIGEST : This bill extends the provisions of SB 150
(Wright), Chapter 171, Statutes of 2009 and SB 1701
(Romero), Chapter 416, Statutes of 2008, to January 1,
2012, allowing courts to select a lower, middle or upper
term for both base term sentences and enhancements by
exercise of the courts discretion.
Senator Floor Amendments of 8/20/10 add technical
chaptering amendments.
ANALYSIS : Existing law provides that when a judgment of
CONTINUED
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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. 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. 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 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 select the term
which, in the court's discretion, best serves the interests
of justice. The court shall set forth on the record the
reasons for imposing the term selected and 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.
This section, to the extent it was modified by SB 40
(Romero) to address Cunningham v. California in 2007,
sunsets on January 1, 2009. (Penal Code Section 1170(b).)
Existing law provides that the Judicial Council shall seek
to promote uniformity in sentencing under Section 1170, by:
1. The adoption of rules providing criteria for the
consideration of the trial judge at the time of
sentencing regarding the court's decision to:
A. Grant or deny probation.
B. Impose the lower, middle, or upper prison term.
C. Impose concurrent or consecutive sentences.
D. Determine whether or not to impose an enhancement
where that
determination is permitted by law.
2. The adoption of rules standardizing the minimum content
and the sequential presentation of material in probation
officer reports submitted to the court.
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This section, to the extent it was modified by SB 40
(Romero) to address Cunningham v. California in 2007,
sunsets on January 1, 2009. (Penal Code Section 1170.3.)
Existing law, in the form of the California Rules of Court,
provides that:
1. 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.
2. 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.
3. 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.
4. A fact that is an element of the crime upon which
punishment is being imposed may not be used to impose a
greater term.
5. The reasons for selecting one of the three authorized
prison terms referred to in section 1170(b) must be
stated orally on the record.
Existing case law establishes that, contrary to the holding
of the California Supreme Court in People v. Black , 35
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Cal.4th 1238 (2005), California's determinate sentencing
law prior to the enactment of SB 40 (Romero) (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 U.S. LEXIS
1324 (U.S. 2007).)
Existing case 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 , 2007 U.S. LEXIS 1324 (U.S. 2007).)
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. (Senate Bill 40 [Romero], Chapter
3, Statutes of 2007.)
Existing law includes the following 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 , No. 05-6551, 2007 U.S. Lexis 1324.
It is the further 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. SB 1701
(Romero) Chapter 416, Statutes of 2008, extended that
sunset date to January 1, 2011.
Existing law provides that certain sentencing enhancements
carry an additional penalty of a lower, middle, or upper
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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], Chapter 171,
Statutes of 2009) (Penal Code Sections 186.22, 186.33,
12021.5, 12022.2, 12022.3, 12022.4.) SB 150 also included
a "sunset" provision, declaring that its provisions remain
in effect only until January 1, 2011, unless a later
enacted statute, that is enacted before that date, deletes
or extends that date.
This bill extends the sunset dates enacted in SB 1701 and
SB 150 to January 1, 2012.
This bill incorporates amendments to Section 1170 of the
Penal Code proposed by SB 399 (Yee), contingent on the
prior enactment of that bill.
Prior Legislation
SB 150 (Wright), Chapter 171, Statutes of 2009, passes with
a vote of 39-0 on June 3, 2009.
SB 1701 (Romero), Chapter 416, Statutes of 2008, passes
with a vote of 3801, with McClintock voting 'No', on
September 27, 2008.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee analysis:
Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12
2012-13 Fund
Base sentence discretion Unknown,
potentially significant General
costs or savings
Enhancement discretion Unknown,
potentially significant General
costs or savings
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SUPPORT : (Verified 8/16/10)
Los Angeles County District Attorney's Office (source)
ARGUMENTS IN SUPPORT : According to the author's office,
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 .
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Bass, Beall,
Bill Berryhill, Blakeslee, Block, Blumenfield, Bradford,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,
Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Lieu, Logue,
Bonnie Lowenthal, Ma, Mendoza, Miller, Monning, Nava,
Nestande, Niello, Nielsen, Norby, V. Manuel Perez,
Portantino, Ruskin, Salas, Saldana, Silva, Skinner,
Smyth, Solorio, Swanson, Torlakson, Torres, Torrico,
Tran, Villines, Yamada, John A. Perez
NO VOTE RECORDED: Tom Berryhill, Audra Strickland, Vacancy
RJG:do:kc 8/23/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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