BILL ANALYSIS �
AB 520
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Date of Hearing: May 18, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 520 (Ammiano) - As Introduced: February 15, 2011
Policy Committee: Public
SafetyVote: 4-3
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill addresses the constitutional infirmity of the state's
three-tier determinate sentencing law (DSL) by prohibiting
imposition of the upper term of imprisonment unless aggravating
factors are found to be true by a jury. Specifically, this bill:
1)Makes a legislative declaration that, to ensure
proportionality in sentencing, upper terms should be reserved
for cases in which aggravating facts have been proven to be
true.
2)Provides the court may not impose an upper term based on
aggravating facts unless the facts were first presented to a
jury and the jury found the facts to be true.
3)Requires the court to state on the record at the time of
sentencing the specific facts in aggravation relied upon to
impose an upper term.
FISCAL EFFECT
1)Unknown annual GF increase or decrease to the extent this
measure results in longer or shorter prison terms. While it is
unlikely this bill will significantly alter current sentencing
patterns, even a minor increase in the number of offenders
deviating from the middle term drives significant costs or
savings, given the large base of offenders (some 60,000
offenders received determinate prison sentences in 2009-10).
Based on CDCR figures from 2006 through 2009, the number of
upper terms per the number of determinate sentences increased
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slightly, from about 15% to about 16%, though in actual
numbers, there were actually 250 fewer upward deviations in
2009 than in 2006. These figures appear to belie the
contention of proponents of AB 520 that current law, which
does not require that aggravating sentencing factors be pled
and proved, results in significantly more upper-term
sentences.
Moreover it is not clear that this bill might not actually
increase the number of upper terms as a result of proving and
pleading the aggravating factors.
2)Unknown, potentially significant increased annual GF costs to
the state trial courts to the extent requiring aggravating
facts to be pled and proved. For example, if 75% of 10,000
criminal cases took an average of two additional hours,
assuming hourly court costs of about $550 per hour, the annual
cost would be about $8 million.
COMMENTS
1)Rationale. The author and sponsor, California Attorneys for
Criminal Justice, contend requiring a jury to hear and find
aggravating factors to be true before the upper term may be
applied, is the appropriate solution to the U.S. Supreme
Court's 2007 Cunningham decision that judges could not simply
increase sentences to the upper term by finding facts not
reflected in a jury verdict.
In 2007, in Cunningham vs. California, the U.S. Supreme Court
held that California's DSL violated a defendant's right to a
jury trial because it authorized the court to increase a
defendant's sentence by finding facts not reflected in the
jury verdict. Specifically, because a 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, the scheme is constitutionally flawed.
The Court suggested this problem could be corrected by either
providing a jury trial on the sentencing issue or by giving
judges discretion to impose the higher term without additional
findings of fact.
California opted for the latter solution. SB 40 (Romero),
Statutes of 2007, corrected the problem by giving judges
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discretion to impose a minimum, medium or maximum term,
without additional findings of fact. SB 150 (Wright),
Statutes of 2009, applied the same solution to sentence
enhancements. These bills were designed as temporary fixes to
maintain stability in California's criminal justice system
while broader sentencing issues in California were reviewed.
The provisions of SB 40 sunset January 1, 2009, but were
extended to January 1, 2011 by SB 1701 (Romero), Statutes of
2008, and to Jan 1, 2012 by AB 2263 (Yamada) Statutes of 2010.
This bill opts instead for requiring a jury to find
aggravating facts to be true.
According to the author, "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)California's DSL uses a triad scheme comprising a presumptive
middle term, a mitigated - or lower - term, and an aggravated
- or upper - term. The triad sentencing structure provides the
court three sentencing options for each crime. For example, a
first-degree burglary offense is punishable by a prison
sentence of two, four, or six years. The upper and lower terms
provided in statute can be given if circumstances concerning
the crime or offender warrant more or less time in prison. In
determining whether there are circumstances warranting the
upper or lower term, the court may consider the record in the
case, the probation officer's report, other reports, including
reports received pursuant to existing law 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. The court must state for the record the
facts and reasons for imposing an upper or lower term.
3)Would AB 520 Burden the Criminal Justice System ? Opponents to
this measure, the Judicial Council and the District Attorneys
Association, contend this bill will swamp the courts with
lengthier cases. Proponents contend California already
provides a statutory requirement of a jury trial for many
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enhancing factors, and that the added requirement will not
significantly burden the courts. Moreover, proponents note
that since defendants may consent to judicial fact-finding,
either as part of a plea-agreement or as part of a bifurcated
trial, most criminal proceeding are resolved by plea.
Therefore, it is not clear requiring aggravating factors to be
tried to a jury will burden the criminal justice system.
4)Support . California Attorneys for Criminal Justice state that
the current Cunningham sentencing fix means "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."
5)Opposition . The Judicial Council and the District Attorneys
Association contend the state's criminal justice system will
be inundated with lengthier cases. The Judicial Council also
objects to what it sees as a diminishment of judicial
discretion.
6)Related Legislation . SB 576 (Calderon) extends the sunset
provisions on the current Cunningham fix from Jan 1, 2012 to
Jan 1, 2016. SB 576 is pending on the Senate Appropriations
Suspense File.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081