BILL ANALYSIS
SB 150
Page 1
SENATE THIRD READING
SB 150 (Wright)
As Amended April 16, 2009
2/3 vote
SENATE VOTE :39-0
PUBLIC SAFETY 7-0 APPROPRIATIONS 17-0
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|Ayes:|Arambula, Hagman, |Ayes:|De Leon, Conway, Ammiano, |
| |Ammiano, Furutani, | | |
| |Gilmore, Hill, Ma | |Charles Calderon, Coto, |
| | | |Davis, |
| | | |Fuentes, Hall, Harkey, |
| | | |Miller, |
| | | |Nielsen, John A. Perez, |
| | | |Skinner, |
| | | |Solorio, Audra |
| | | |Strickland, Torlakson, |
| | | |Hill |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Provides 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.
Specifically, this bill :
1)Eliminates the presumption for the middle term in specified
sentence enhancements previously ruled unconstitutional in
Cunningham vs. California (2007) 549 US 270.
2)Sunsets the provisions of this bill at the same time as the
similar provisions of SB 40, January 1, 2011, unless a statute
enacted before that date either deletes or extends that date.
EXISTING LAW 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
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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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, unknown moderate annual General Fund costs,
potentially in the low millions of dollars, for increased state
prison terms to the extent more offenders receive the upper
enhancement rather than the current presumptive middle
enhancement.
While many judges, defense attorneys and prosecutors suggest
this bill will not significantly alter current sentencing
patterns, even a minor increase in the number of offenders
receiving the upper enhancement could have significant costs,
given the large base of offenders. For example, assuming more
than 60,000 offenders receive determinate prison sentences in
2009-10, and assuming that only 5% received the upper
enhancement and served an additional six months, the annual cost
would exceed $3.5 million based on per capita costs.
Also, the number of offenders receiving the lower enhancement
could increase, though discussions with practitioners suggest
there is little reason to believe any increase in the number of
lower term sentences will offset the increase in upper term
sentences.
Based on California Department of Corrections and Rehabilitation
figures for 2008, it appears the number of upper terms per the
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number of determinate sentences has actually decreased slightly,
from about 18% to about 15%. These figures support the
contention that the "Cunningham fix" will not increase the
number of upper terms, and analogously, that applying the SB 40
fix to enhancements will not have a significant impact on
enhancements.
COMMENTS : According to the author, "SB 150 corrects a
constitutional flaw in California's sentencing law that prevents
prosecutors from seeking the maximum term for current law
sentence enhancements. In 2007, the United States Supreme Court
held that California's determinate sentencing law (DSL) 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 v. California
(2007) 549 US 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
the higher term without additional findings of fact.
"SB 40 (Romero) of 2007 corrected the constitutional problem by
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
v. Sandoval (2007) 41 Cal 4th 825, 843-852. However, SB 40
neglected to apply this law to sentence enhancements. Without
the SB 40 constitutional fix, a judge has no authority to apply
the upper term of a sentence enhancement.
"Thirty-eight sentence enhancements are currently subject to the
unconstitutional sentencing scheme set forth in current law.
The conduct which these enhancements reach includes hate crime,
use of or being armed with deadly weapons during sex crimes or
attempted sex crimes, intentional infliction of great bodily
injury or death as a result of discharging a firearm from a
vehicle, and possession of metal penetrating ammunition during
the commission of a felony. SB 150 corrects the above problem
by conforming the sentence enhancement law to the approach
adopted by the Legislature in SB 40 (Romero). If enacted, SB
150, along with SB 40, will sunset on January 1, 2011. This
will give the Legislature the opportunity to evaluate the
sentencing law to determine whether adjustments or further
reforms are necessary."
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Please see the policy committee for a full discussion of this
bill.
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744
FN: 0002563