BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1037 (Correa) 7
As Introduced February 12, 2010
Hearing date: April 13, 2010
Penal Code
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SEX CRIME SENTENCING
HISTORY
Source: Orange County District Attorney
Prior Legislation: Proposition 83, November, 2006 General
Election
Support: Crime Victims United; California Correctional
Supervisors Organization
Opposition:None known
KEY ISSUE
SHOULD A CONSECUTIVE SENTENCING PROVISION FOR SEX CRIMES THAT WAS
AMENDED BY JESSICA'S LAW SO AS TO PROHIBIT IMPOSITION OF FULL,
CONSECUTIVE TERMS UNDER CERTAIN CIRCUMSTANCES BE RE-ENACTED?
PURPOSE
The purpose of this bill is to authorize a court to impose a
full, consecutive subordinate term where a defendant is
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convicted, along with other offenses, of one of a list of a
specified sex crimes, thereby restoring a sentencing provision
that was eliminated by Proposition 83 of the November, 2006
General Election.
Existing law provides that when a judgment of imprisonment is to
be imposed and the statute specifies a "triad" of three possible
terms - a lower, middle or upper term - the choice of the
appropriate term shall rest within the sound discretion of the
court. 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.
(Pen. Code 1170.)
Existing law provides (Pen. Code 669, 1170 and 1170.1) that
where a defendant has been convicted of more than one offense,
the court shall impose an "aggregate term" that is constructed
from a principal (or base) term and subordinate terms reflecting
additional crimes of which the defendant has been convicted.
The following rules apply:
The court shall determine as to each subordinate term
whether or not to impose the term to be served concurrently
with (at the same time as) the principal term or
consecutively.
A consecutive term is served in succession with (in
addition to) the principal term.
Except where otherwise provided in the law, a
consecutive, subordinate term is to be imposed as 1/3 of
the middle term for that offense, had the offense been the
sole crime of conviction of the principal term. A
subordinate consecutive term for robbery (a crime with a
prison triad of two, three, or five years) would be one
year, 1/3 of the middle term of three years.)
Existing law includes special sentencing rules authorizing or
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requiring full, consecutive<1> terms for each count of
conviction (separate sex crime) for specified offenses. These
consecutive sentencing rules apply "in lieu" of the normal rules
in Section 1170.1 for imposing consecutive sentences. (Pen.
Code 667.6, subds. (c) and (d).)
The crimes subject to full-term consecutive sentences
are the following forms of these listed offenses:
o Rape (Pen. Code 261, subd. (a), (2), (3),
(6), or (7)).
o Spousal rape (Pen. Code 262, subd. (a), (1),
(4), or (5).)
o Rape, spousal rape, or sexual penetration, in
concert (Pen. Code 264.1.).
o Sodomy (Pen. Code 286, subds. (c), (2)-(3),
(d) or (k)).
o Lewd or lascivious act by force or coercion
(Pen. Code 288, subd. (b)).
o Continuous sexual abuse of a child (Pen. Code
288.5).
o Oral copulation (Pen. Code 288a, subds.
(c)(2)-(3), (d) or (k)).
o Sexual penetration, as specified (Pen. Code
289, subds. (a) or (g)).
o Assault with intent to commit a specified
sexual offense (Pen. Code 220).
The specific rules for imposing
consecutive sentences are as follows
o The court must impose fully consecutive terms
for each crime that a) involved a different victim, or
b) was committed on separate occasions from another
crime.
o Crimes occurred on separate occasions where
the defendant had an opportunity to reflect between
two crimes. (Pen. Code 667.6, subd. (d).)
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<1> A sex crime term can always be imposed as a full term if
that crime is deemed by the court to be the principal term. A
principal term is essentially the foundation of the entire
sentence.
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o The court may impose a fully consecutive term
for each crime listed in subdivision (e)), if the
crime involved the same victim on the same occasion.
(Pen. Code 667.6, subd. (c.).)
This bill authorizes a court to impose a full, consecutive
subordinate term where a defendant is convicted, along with
other offenses, of one of a list of a specified sex crimes (set
out in Pen. Code 667.6, subd. (e)), thereby restoring a
sentencing provision that was eliminated by Proposition 83 of
the November, 2006 General Election.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house . .
. (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents . . . California "spends more on
corrections than most countries in the world," but the
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state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
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adequate medical and mental health care.<2>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
The author states:
Senate Bill 1037 (SB 1037) would fix a drafting error
in the "Jessica's Law" initiative. This fix to Penal
Code Section 667.6, subdivision (c) will allow courts
to impose full term consecutive sentences in certain
aggravated cases involving violent sexual offenders.
Although Jessica's Law was enacted "to strengthen and
improve the laws that punish and control sexual
offenders," a drafting error actually limited
application of a particular consecutive sentencing
statute to only offenses involving the "same victim on
the same occasion." (Penal Code 667.6(c); People v.
Goodliffe (2009) 177 Cal. App.4th 723.) Prior to
Jessica's Law the discretionary full term consecutive
sentencing provision for forcible sex crimes applied
more broadly. (People v. Jones (1988) 46 Cal.3d 585.)
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<2> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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The proposed legislative fix in SB 1037 would simply
remove the language in question and return the law to
its pre-"Jessica's Law" state, where the discretionary
sentencing provision of section 667.6(c) applied to
all forcible sex crimes, without the requirement that
the crimes involve the same victim on the same
occasion. This will give the courts the discretionary
sentencing tool needed, particularly in cases of high
risk sex offenders and sexually violent predators.
The mandatory full term consecutive sentencing
provision of Penal Code Section 667.6, subdivision
(d), - which requires a minimum of two enumerated
offenses - remains unchanged.
The recent case of People v. Goodliffe 2009) 177
Cal.App.4th 723, illustrates the problem. The
defendant was convicted of multiple serious and
violent sexual offenses involving separate victims on
separate occasions. But, because only one of the
offenses was a qualifying forcible sex crime (listed
in 667.6, subd. (e)) the court had to sentence under
subdivision (c). The trial court imposed an aggravated
full term consecutive sentence for the forcible sex
crime, but the Court of Appeal reversed because the
offense did not meet the new statutory requirement
that the crimes involved the "same victim on the same
occasion." The Attorney General argued that that the
new provision did not make sense. However, the
Attorney General was unsuccessful in asking the Court
of Appeal to rewrite subdivision (c) to reinsert the
language that the initiative repealed.
2. The Arcane and nearly Impenetrable Subject of Multiple Count
Sentencing
Complexity of Sentencing Law
This bill presents an example of the complexity of California's
criminal sentencing laws. Since the Determinate Sentencing Law
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was passed in 1976, the Legislature has added to and revised
criminal laws virtually every year. The law has never been
amended in a comprehensive fashion. Numerous sentence
enhancements have been enacted to address cases where it was
believed that the defendant was not adequately punished.
Special sentencing schemes for various crimes or offenders have
been enacted. Often these new sentencing schemes overlap other
sentencing schemes, leaving a defendant subject to punishment
under more than one scheme and leaving judges the task of
determining how to construct a sentence from a veritable
warehouse of parts.
For decades many judges have despaired of fully grasping and
correctly applying sentencing laws. Current sentencing laws are
orders of magnitude more complicated than in 1979, when one
appellate opinion stated:
As a sentencing judge wends his way through the
labyrinthine procedures of Section 1170 of the Penal
Code, he must wonder, as he utters some of its more
esoteric incantations, if, perchance, the Legislature
had not exhumed some long, departed Byzantine scholar
to create its seemingly endless and convoluted
complexities. Indeed, in some ways it resembles the
best offerings of those who author bureaucratic
memoranda, income tax forms, insurance policies or
instructions for the assembly of packaged toys.'"
(Comm. Release Bd. v. Superior Court (1979) 91
Cal.App.3d 814, 815, fn. 1.)
General Multiple Count Sentencing Rules
Equally complex rules govern imposition of sentence where the
defendant is convicted of multiple crimes in a single
prosecution. Under the general sentencing rules set out in
Penal Code sections 669, 1170 and 1170.1, the court would pick
one of three terms (lower, middle or upper) for the most serious
offense of which the defendant was convicted. This offense is
the base or principal term. The court then determines whether
or not to sentence the defendant to a consecutive term or
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concurrent terms on the other crimes. These terms imposed on
these conviction are called "subordinate" terms. Concurrent
terms are served at the same time as the base term. A
concurrent term does not increase a defendant's imprisonment
time. If the court decides to impose consecutive terms, these
"subordinate" consecutive terms are imposed as one-third of the
middle term of that crime.
Consider the following example: A defendant is convicted of
three counts or robbery. The sentencing triad for robbery is a
prison term of two years, three years or five years. The court
chooses count 1 as the principal term and imposes the upper term
of five years. If the court then decides to impose consecutive
terms on the other two counts, the court would impose
subordinate term of 1 year in each of count 2 and 3.
Consecutive Sentencing Rules for Sex Crimes
Sex crime sentencing is arguably the most complicated task a
sentencing judge faces. A sex crime defendant may face special
consecutive sentencing and multiple punishment rules,
enhancements for prior sex crime convictions, a life term under
the one-strike law, a life term if the crime involved a
kidnapping, life terms for habitual sex offenders and a life
term or double term under the Three Strikes law. In some cases,
virtually all of these sentencing rules or schemes will apply.
As noted above, special consecutive rules apply for sex
crimes. As relevant to this bill, subdivisions (c), (d)
and (e) of Section 667.7 require or allow a court to impose
full-term consecutive sentences in sex crime convictions,
in contrast to the normal rule under consecutive terms are
imposed as one-third of the middle term for a crime.
Consider the following example: A defendant is convicted of
three counts of coerced lewd conduct with a child under the age
of 14. The crimes occurred on three successive days. Because
each offense is listed in subdivision (e) of Section 667.6, and
because the crimes occurred on separate occasions, the court
must impose full-term consecutive sentences on each count. If
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the court chooses the upper term of eight years in each count,
the defendant would receive a sentence of 24 years in prison.
(Without the special sentencing rules for sex crimes, the
defendant could receive no more than 12 years - the upper term
of eight years in the principal term and two years in each of
the other two counts (one-third the middle term of six years).
Prior to the enactment of Jessica's Law, Penal Code section
667.6, subdivision (c), authorized a trial court to impose a
full, separate, and consecutive term "for each [specified sex
crime] whether or not the crimes were committed in a single
transaction." This provision was repealed by Jessica's Law and
replaced with a provision only authorizing imposition of a fully
consecutive term for one of the listed sex crimes if the crime
involved a single victim on one occasion.
The critical difference between subdivisions (c) and (d) under
existing and former law is that the mandatory consecutive
sentencing rules in subdivision (d) apply where the defendant is
convicted of more than one of the offenses listed in subdivision
(e) of Section 667.6. The discretion given to the court by
subdivision (c) to impose a full consecutive term for a crime
listed in subdivision (e) applies where the defendant is
convicted of only one such crime, in addition to a crime or
crimes not listed in Section 667.6. (People v. Jones, supra, 46
Cal.3d 585, fn, 5, 595-596.)
Jessica's law limited the authority of a court to impose full
consecutive sentences where a defendant, in addition to another
crime or other crimes, is convicted of a single qualifying sex
crime (listed in subdivision (e) of Sec. 667.6). If the
defendant is convicted of a single offense listed in subdivision
(e), the court can only impose the term as a full consecutive
term if the crimes of conviction all involved the same victim on
the same occasion.
A court nevertheless can impose a full, upper term for a sex
crime listed in subdivision (e), regardless of whether or not
the crimes involved the same victim on a single occasion, if the
court deems the sex crime to be the principal term. The
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principal term is essentially the basis or foundation of the
sentence. As such, the principal term is also called the base
term. Under the law prior to the passage of Jessica's law, the
court could designate what would be understood to be a less
egregious offense, such as non-coerced lewd conduct, as the base
term and then impose a full, consecutive term for a more
egregious offense, such as forced or coerced lewd conduct.
3. People v. Goodliffe (2009) 177 Cal.App.4th 723: Jessica's Law
Enacted Restrictions on Imposition of Full, Consecutive Terms
in Specified Sex Crime Cases
As noted in the author's statement, this bill was introduced to
address the decision of the court in People v. Goodliffe (2009)
177 Cal.App.4th 723. The defendant in Goodliffe was convicted
pursuant to a plea bargain of four counts of sex crimes
involving minors and one count of bigamy. One of the counts of
conviction - forced or coerced lewd conduct with a child under
the age of 14 years - was subject to the special consecutive
sentencing rules in Penal Code section 667.6. At least four
counts (charged crimes) and an enhancement allegation were
dismissed as part of the plea bargain.
The appellate opinion does not describe the dismissed counts and
enhancement. As such, it cannot be determined whether the court
would have been required to impose full consecutive sentences
had the dismissed counts and enhancement allegation been proved.
It also cannot be determined if the defendant would have been
subject to a life term under the One-Strike law (Pen. Code
667.61) had the dismissed allegations had been proved. It
appears that the plea bargain only involved the counts of
conviction, not how the court would calculate the sentences.
Had the defendant specifically agreed to a consecutive term in
the conviction for coerced lewd conduct, it would have been
upheld as part of the plea bargain. The appellate court
remanded the case back to the trial court for resentencing. The
court would be free to impose a sentence of equal length to that
imposed in the initial judgment. However, the court could not
impose a full consecutive term for in the forced or coerced lewd
conduct conviction.
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The court in Goodliffe found that Jessica's Law had eliminated
the discretion of a court to impose a full, consecutive
subordinate term for a specified sex crime where the defendant
has been convicted of only one such crime, in addition to other
offenses, unless the defendant committed the crimes of
conviction against a single victim on one occasion.
The Attorney General argued in Goodliffe that the amendments in
Jessica's law to subdivision (c) of Section 667.6 were
inconsistent with the general intention of the initiative to
impose more severe punishment on sex offenders. The Attorney
General further argued that upholding the literal meaning of the
amendments to Section 667.6 in Jessica's Law would produce an
"absurd result" that the court should not recognize.
The court in Goodliffe rejected the People's argument, holding:
"The absurd consequences exception to the plain meaning rule
cannot be applied whenever it is claimed to run counter to a
generalized legislative intent." (Id, at p. 729.) "The basis
principle of statutory construction ? mandates that courts ? not
undertake to rewrite unambiguous language. There are a few
exceptions to the rule. It is not applied when it appears clear
that a word has been erroneously used, and a judicial correction
will best carry out the intent of the adopting body." (Id, at
p. 726.) The court emphasized that the alleged error was not a
single misplaced word or phrase in a single statute, when the
meaning of the statute was otherwise clear. The court noted
that Jessica's Law amended or added "over two dozen statutes."
The clear wording in any particular statute could not be changed
by reference to a statement of very general intent. (Id,. at p.
731.)
The court in Goodliffe found that the drafters of Jessica's Law
codified the 1986 decision of the California Supreme Court in
Jones by expressly stating that "[a] term may be imposed
consecutively pursuant to this subdivision if a person is
convicted of at least one offense specified in subdivision (e)."
The drafters of the initiative also specifically struck the
words "whether or not" in the phrase "whether or not the crimes
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were committed in a single transaction" in describing the
authority of a court to impose full-term consecutive sentences
for a specified sex crime. The initiative drafters replaced the
words "whether or not" with the word "if," thus specifically
providing that court can only impose a full consecutive, term
for a single qualifying sex crime if the crimes of conviction
(the qualifying sex crimes and other felonies) were committed on
the same occasion against the same victim. The court in
Goodliffe found that the excision of the words "whether or not"
and the addition of the word "if" were deliberate. The court
declined the request of the Attorney General to rewrite the
phrase back into the statute. (Id, at pp. 731-733.)
SHOULD THE LEGISLATURE REENACT CONSECUTIVE SENTENCING PROVISIONS
THAT WERE ELIMINATED BY JESSICA'S LAW AND THROUGH THIS
LEGISLATIVE REENACTMENT PROVIDE THAT A COURT CAN SENTENCE A
DEFENDANT, CONVICTED OF MULTIPLE FELONIES WHICH INCLUDE A
CONVICTION FOR A SINGLE QUALIFYING SEX OFFENSE, TO A FULL
CONSECUTIVE TERM ON THE QUALIFYING SEX OFFENSE?
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