BILL ANALYSIS �
AB 520
Page 1
Date of Hearing: May 3, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 520 (Ammiano) - As Introduced: February 15, 2011
SUMMARY : Prohibits imposition of the upper term of
imprisonment unless aggravating factors are found to be true by
the finder of fact. Specifically, this bill :
1)Makes a legislative declaration that, to ensure
proportionality in sentencing, upper terms should be reserved
for individual cases in which aggravating facts exist and have
been proven to be true.
2)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.
3)Require the court to state the reasons for its sentence choice
on the record at the time of sentencing, including the
specific facts in aggravation, if any, relied upon to impose
an upper term.
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 when a judgment of imprisonment is to be imposed
and the statute specifies three possible terms, the choice of
AB 520
Page 2
the appropriate term shall rest within the sound discretion of
the court. �Penal Code Section 1170(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. �Penal Code Section
1170.1(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." �California Rules of Court, Rule
4.406(b)(4).]
5)Requires the sentencing judge to consider relevant criteria
enumerated in the Rules of Court. (California Rules of Court,
Rule 4.409.)
6)Provides that, in exercising discretion to select 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."
�California 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. �California Rules of Court,
Rule 4.420(c).]
8)Prohibits the sentencing court from using a fact that is an
element of the crime to impose a greater term. �California
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
AB 520
Page 3
of Court, Rule 4.423.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Following
conviction or upon a plea, a judge can unilaterally find that
there are aggravating circumstances and impose the upper term.
While it is appropriate for a judge to state his or her reason
for imposing a sentence that can be more than twice the length
of the lower sentence, the aggravating factors should be true,
and the only way to determine this is to put the facts before
a jury or independent factfinder which the U.S. Supreme Court
declared in its 2007 decision.
"This small policy change will instill a great sense of fairness
in our judicial system. The sponsors and I want to hold people
who break the law accountable for their actions, and if a jury
or independent factfinder finds that there are true factors in
aggravation, then the highest available sentence should be
imposed. If not, judges need to follow the law and impose the
middle term unless there are factors that have actually been
found to be true."
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
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."
AB 520
Page 4
(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 term 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 new procedure removes the mandatory
middle term and the requirement of weighing aggravation
against mitigation before imposition of the upper term. Now,
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)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
AB 520
Page 5
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).]
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. �Penal Code Section 667.61(d),
(e) and (i).] In a "Three-Strikes" case, a defendant's prior
conviction must be pleaded and proved. �Penal Code Section
1170.12(a).] The facts that permit enhancements of
punishments for violating various drug laws must also be
pleaded and proved. �See e.g. Health and Safety Code Sections
11353.1(b); 11353.4(c); 11353.6(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 �Penal Code Section 1025;
People v. Kelii (1999) 21 Cal. 4th 452], defendants often
waive that right or admit the priors.
It should also be noted that most criminal proceedings are
resolved by plea. Accordingly, it is questionable that
requiring aggravating factors to be tried to a jury will
unduly burden the criminal justice system.
5)Is the Current Method Still Constitutionally Infirm ? 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,
AB 520
Page 6
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 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 a 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 a Blakely challenge.
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.) Because Penal Code
Section 1170, as reformed by SB 40 and by the California
Supreme Court in Sandoval, supra, 41 Cal.4th 825, continues to
require judicial fact finding as a predicate to the imposition
of an aggravated term, it arguably violates the Sixth
Amendment.
If Penal Code Section 1170 allowed judges unfettered
discretion to impose the upper, middle, or lower terms, the
statute would have fixed the Sixth Amendment infirmity in the
DSL. �Cf. United States v. Booker (2005) 543 U.S. 220.]
Thus, if a trial judge were allowed to impose the upper term
without a single, additional aggravating fact, that would
comport with the requirements of the Sixth Amendment. But
under the language of current Penal Code Section 1170 enacted
by SB 40 and adopted by the California Supreme Court in
reforming the prior version of the statute, that is not
permitted.
As adopted by the California Supreme Court, the language of SB
40 requires the judge to enter "reasons" supporting the
exercise of his or her sentencing discretion in the record.
�People v. Sandoval, supra, 41 Cal.4th at p. 844, Penal Code
Section 1170(b).] Those reasons remain governed by the
California Rules of Court. �People v. Sandoval, supra, 41
AB 520
Page 7
Cal.4th at 844; Penal Code Section 1170.3(a)(2).] And 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(b) continues to provide, after
amendment and after reformation by the California Supreme
Court, 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."
The import of these rules is that, without finding facts in
addition to the elements of the offense, which is to say in
addition to the facts found by the jury, the court may not
impose the upper term. And the terms of California Rules of
Court, Rule 4.420(d) are mandatory, not discretionary. If the
court has before it no more than the facts found by the jury,
to wit the elements of the offense, the court "may not impose
a greater term." �Cal. Rules of Court, Rule 4.420(d).]
That facts must support a sentence under Penal Code Section
1170 as reformed by the California Supreme Court is also
apparent from the requirement that sentences are reviewed for
abuse of discretion. (People v. Sandoval, supra, 41 Cal.4th
at 847.)
It really does not matter that these factors 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 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.)
The Rules of Court, which lay out the permissible bases for
trial courts to impose an upper or lower term, have not
changed. Since under reformed Penal Code Section 1170, it is
still the case that an upper-term sentence must be based on
the Rules of Court, arguably it still violates a defendant's
Sixth Amendment rights.
6)Argument in Support : According to the California Attorneys
for Criminal Justice (the sponsor of this bill), "This measure
addresses a constitutional defect in California's complex
AB 520
Page 8
felony sentencing scheme. The approach contained in AB 520
preserves key fundamental principles that include reserving
maximum felony sentences for the "worst of the worst"
offenders.
"Specifically, AB 520 continues California's practice of
imposing the middle term in our three tiered sentencing
structure unless aggravating facts are found to be true.
Additionally, this requires alleged facts in aggravation to be
presented to a jury and found to be true beyond a reasonable
doubt. This approach was endorsed by the United States
Supreme Court as a proper means to preserve the Sixth
Amendment right to a jury and as a welcome strategy to correct
the constitutional defect of California's prior statute. . .
.
"In 2007 the United States Supreme Court decided Cunningham
which found that California's sentencing law violated the
right to a jury. Specifically, the court concluded that
aggravating facts could not be decided by a judge.
'Because the �statute] authorizes the judge, not the jury, to
find the facts permitting an upper term sentence, the system
cannot withstand measurement against our Sixth Amendment
precedent.' Cunningham v. California (2007) 127 S.Ct. 856,
871
"California's current felony sentencing structure was adopted by
Senate Bill 40 in 2007. It was designed as an immediate and
temporary fix in the wake of the Cunningham decision, simply
to prevent sentencing chaos in our courts. SB 40 expires at
the end of this year. The 2007 bill, however, is
fundamentally flawed. As a result of this defect, the bill
essentially increased every maximum felony sentence in
California. AB 520 addresses this problem by restoring the
original intent of our state's sentencing structure,
essentially, reserving the maximum sentence for the
'worst-of-the-worst' offenders and requiring aggravating facts
to be determined by a jury, as the United State Supreme Court
suggested in Cunningham. . . .
"The fundamental question for the United States Supreme Court
was whether a judge was allowed to impose an upper/maximum
sentence based exclusively on the facts 'reflected in the jury
verdict or admitted by the defendant.' The Supreme Court
AB 520
Page 9
acknowledged the Legislature's intent to only impose the
mid-term as a result of a conviction, and the specific intent
to impose the upper/maximum term only when aggravating facts
exist.
"The problem was that the law permitted a judge to determine
whether aggravating facts were true - a constitutional
violation - since only a jury can make factual findings. . .
.
"The approached utilized by AB 520 requires any alleged
aggravating fact to be presented and proven to a jury. This
sentencing method was endorsed by the United States Supreme
Court in the Cunningham decision.
'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.'
Cunningham v. California (2007) 127 S.Ct. 856, 871. . . .
"SB 40 attempted to eliminate the right to a jury to decide
alleged aggravating facts. It also deleted the middle term as
the presumed term when no aggravating facts exist. As a
result, California judges can now unilaterally impose the
upper term even in the absence of aggravating facts. The
primary effect of this change is that SB 40 elevated the
statutory maximum sentence in every felony case from the
mid-term to the upper-term.
"As a result of this change, we have abandoned the touchstone
concept of our three-tiered system, namely that the upper-term
is reserved for the 'worst-of-the-worst' offenses. AB 520
restores this proportional sentencing principle, and also
resurrects the right to have a jury to decide aggravating
facts."
7)Argument in Opposition : According to the Judicial Council of
California , "The council opposes AB 520 because under current
law, courts are vested with broad discretion to fashion
appropriate sentences. The bill would diminish the court's
discretion by preventing courts from imposing upper terms in
AB 520
Page 10
the absence of certain findings. We believe that the
determination of the existence of aggravating factors should
be left to judicial officers' discretion. Although some
aggravating factors are fact-driven, others-such as whether
the crime was carried out in a manner indicating 'planning,
sophistication, or professionalism'-are less so, and instead
require a determination of relativity and what best serves the
interests of justice. The Judicial Council believes this
determination is a function of judicial officers, in order to
ensure fair and appropriate sentences. Moreover, the
committee noted that the bill would result in a substantially
longer, bifurcated trial process that would be costly and will
cause unnecessary delays in already excessive case loads."
8)Related Legislation : SB 576 (Calderon) would extend the
sunset provisions on Penal Code Section 1170 to January 1,
2016. SB 576 is pending hearing by the Senate Appropriations
Committee.
9)Prior Legislation :
a) 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.
b) SB 1701 (Romero), Chapter 416, Statutes of 2008,
extended to January1, 2011, the provisions of SB 40 which
were originally due to sunset on January 1, 2009.
c) SB 150 (Wright), Chapter 171, Statutes of 2009,
eliminated the presumption of the middle term relating to
sentencing enhancements found in Penal Code Section
1170.1(d).
d) AB 2263 (Yamada), Chapter 256, Statutes of 2010,
extended 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.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 520
Page 11
California Attorneys for Criminal Justice (Sponsor)
Opposition
California District Attorneys Association
Judicial Council of California
Los Angeles County District Attorney's Office
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744