BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 576 (Calderon)
As Introduced February 17, 2011
Hearing date: April 5, 2011
Penal Code
SM:dl
SENTENCING: CHOICE OF TERMS
HISTORY
Source: Los Angeles District Attorney
Prior Legislation: AB 2263 (Yamada) - Chap. 256, Statutes of
2010
SB 150 (Wright) - Chap. 171, Statutes of 2009
SB 1701 (Romero) - Chapter 416, Statutes of 2008
SB 1342 (Cogdill) - died in Senate Public Safety;
2008
SB 40 (Romero) - Chapter 3, Statutes of 2007
Support: California District Attorneys' Association; California
Peace Officers Association; California State Sheriffs'
Association
Opposition:California Attorneys for Criminal Justice
KEY ISSUE
SHOULD THE SUNSET DATE ON SPECIFIED SENTENCING PROVISIONS BE
EXTENDED TO JANUARY 1, 2016, ALLOWING COURTS TO SELECT A LOWER,
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MIDDLE OR UPPER TERM FOR BOTH BASE TERM SENTENCES AND ENHANCEMENTS
BY EXERCISE OF THE COURT'S DISCRETION?
PURPOSE
The purpose of this bill is to extend the sunset provisions on
specified sentencing provisions to January 1, 2016.
Existing law provides that when a judgment of 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,
2012. (See Comment 2, infra.) (Penal Code � 1170(b).)
Existing law provides that the Judicial Council shall seek to
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promote uniformity in sentencing under Section 1170, by:
The adoption of rules providing criteria for the
consideration of the trial judge at the time of sentencing
regarding the court's decision to:
o grant or deny probation;
o impose the lower, middle, or upper prison
term;
o impose concurrent or consecutive sentences;
and
o determine whether or not to impose an
enhancement where that determination is permitted by
law.
The adoption of rules standardizing the minimum content
and the sequential presentation of material in probation
officer reports submitted to the court.
This section, to the extent it was modified by SB 40 (Romero) to
address Cunningham v. California in 2007, sunsets on January 1,
2012. (See Comment 2, infra.) (Penal Code � 1170.3.)
Existing law , in the form of the California Rules of Court,
provides that:
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.
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
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probation officer's report, other reports and statements
properly received, statements in aggravation or mitigation,
and any evidence introduced at the sentencing hearing.
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.
A fact that is an element of the crime upon which
punishment is being imposed may not be used to impose a
greater term.
The reasons for selecting one of the three authorized
prison terms referred to in section 1170(b) must be stated
orally on the record. (Cal. Rule of Court, 4.420.)
Existing case law establishes that, contrary to the holding of
the California Supreme Court in People v. Black, 35 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
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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,
Stats. 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 it's
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. Subsequent legislation has
extended that sunset date and these provisions will currently
remain in effect until January 1, 2012.
Existing law provides that certain sentencing enhancements carry
an additional penalty of a lower, middle, or upper 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), Chap. 171, Stats. of 2009) (Penal Code ��
186.22, 186.33, 12021.5, 12022.2, 12022.3, 12022.4.) SB 150
also included a "sunset" provision, declaring that it's
provisions would remain in effect only until January 1, 2011,
unless a later enacted statute, that is enacted before that
date, deletes or extends that date. Last year that sunset date
was extended to January 1, 2012. (AB 2263 (Yamada), Chap. 256,
Statutes of 2010.)
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This bill would extend the sunset dates in these sentencing
provisions to January 1, 2016.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
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COMMENTS
1.Need for This Bill
According to the author:
In 2007, the United States Supreme Court held that
California's determinate sentencing law violated a
defendant's right to a jury trial because the 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 the judge 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
finding of fact. SB 40's approached was embraced by
the California Supreme Court in People v. Sandoval
(2007) 41 Cal 4th 825, 843-852. SB 150 (Wright) 2009
extended this constitutional fix to sentence
enhancements.
SB 576 would extend the sunset provision for SB
40 & SB 150 from January 1, 2012 to January 16,
2016.
There are no other changes to the laws other
than the extension of the sunset provision.
2. Background: The Holding in Cunningham v. California:
California's Determinate Sentencing Law was Unconstitutional
Under California's determinate sentencing law (DSL), specified
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crimes may be punished by one of three prison terms, referred to
as the lower, middle, or upper term. Prior to SB 40, Section
1170 stated 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 circumstances in aggravation or mitigation of the crime."
(Penal Code � 1170(b).) Having established this system of
sentencing "triads," the Legislature delegated to the Judicial
Council the duty to adopt rules providing criteria to guide the
trial judge at the time of sentencing regarding the court's
decision to impose the lower, middle, or upper prison term.
(Penal Code � 1170.3.) According to the rules of court
established by the Judicial Council prior to SB 40, in
sentencing a defendant under the DSL, "�t]he middle term must be
selected unless imposition of the upper or lower term is
justified by circumstances in aggravation or mitigation." (Cal.
Rules of Court, Rule 4.420(a).)
Prior to SB 40, the Rules of Court, Rule 4.420(b) further
required that, "�c]ircumstances in aggravation and mitigation
must be established by a preponderance of the evidence.
Selection of the upper term is justified only if, after a
consideration of all the relevant facts, the circumstances in
aggravation outweigh the circumstances in mitigation. The
relevant facts are included in the case record, the probation
officer's report, other reports and statements properly
received, statements in aggravation or mitigation, and any
further evidence introduced at the sentencing hearing.
Selection of the lower term is justified only if, considering
the same facts, the circumstances in mitigation outweigh the
circumstances in aggravation."
In 2000, in the landmark ruling in Apprendi v. New Jersey, the
U.S. Supreme Court held that, "the Federal Constitution's
jury-trial guarantee proscribes a sentencing scheme that allows
a judge to impose a sentence above the statutory maximum based
on a fact, other than a prior conviction, not found by a jury or
admitted by the defendant." (Cunningham v. California, 2007
U.S. LEXIS 1324, 11-12 (U.S. 2007), citing Apprendi v. New
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Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d
556 (2002); Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531, 159 L. Ed. 2d 403 (2004); United States v. Booker, 543
U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). The Supreme
Court clarified this principle in Blakely v. Washington as
follows: "The relevant statutory maximum, is not the maximum
sentence a judge may impose after finding additional facts, but
the maximum he may impose without any additional findings."
Blakely, supra 542 U.S., at 303-304, 124 S. Ct. 2531, 159 L. Ed.
2d 403 (emphasis in original).
In finding that California's DSL, prior to SB 40, violated the
right to a trial by jury, as defined under Apprendi, the Supreme
Court stated, "California's DSL, and the rules governing its
application, direct the sentencing court to start with the
middle term, and to move from that term only when the court
itself finds and places on the record facts - whether related to
the offense or the offender - beyond the elements of the charged
offense." (Cunningham v. California, 2007 U.S. LEXIS 1324 (U.S.
2007).) Because, prior to SB 40, California's DSL required the
judge, in order to impose the upper term, to find facts that
were not elements of the offense found true by the jury, and
because the court could find those facts by a preponderance of
the evidence as opposed to the higher standard of beyond a
reasonable doubt, the DSL did exactly what was forbidden under
Apprendi, namely, it "allows a judge to impose a sentence above
the statutory maximum based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant."
(Apprendi, supra, 530 U.S. 466.) "This 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, 2007 U.S. LEXIS 1324 (U.S. 2007).)
In sum, the Court held: "Because circumstances in aggravation
are found by the judge, not the jury, and need only be
established by a preponderance of the evidence, not beyond a
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reasonable doubt, . . . the DSL violates Apprendi's bright-line
rule: Except for a prior conviction, 'any fact that increases
the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable
doubt.'" (Cunningham v. California, 2007 U.S. LEXIS 1324 (U.S.
2007), citation omitted.)
3. SB 40 (2007) Amended California's DSL to Satisfy
Constitutional Requirements
While the Supreme Court, in its Cunningham decision, found that
California's DSL violates the Sixth Amendment, the Court also
provided clear direction as to what steps California's
Legislature could take to address the DSL's Constitutional
infirmities.
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
v. California, 2007 U.S. LEXIS 1324 (U.S. 2007),
citations and footnotes omitted.)
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Because, as the Court stated in Blakely, "The relevant
statutory maximum, is not the maximum sentence a judge may
impose after finding additional facts, but the maximum he may
impose without any additional findings�,]" and, because, prior
to SB 40, under California's DSL, a judge could only impose the
upper term after making additional findings of fact, the Court
in Cunningham found that, absent any amendment along the lines
stated above, the statutory maximum a judge would be authorized
to impose in California is the middle term. (Cunningham v.
California, 2007 U.S. LEXIS 1324 (U.S. 2007).
SB 40 amended California's DSL to give judges the discretion to
impose the lower, middle, or upper term without the need for
additional fact-finding. In addition, SB 40 included
legislative intent language stating that its purpose was to
address Cunningham, and to stabilize the criminal justice
system while sentencing and correctional policies in California
are being reviewed.
4. Sentence Enhancements Containing Three Possible Terms
Most sentence enhancements provide for a specific term of years.
(See e.g., Penal Code � 667(a) - 5 years for each prior serious
felony conviction.) Some sentence enhancements, however, like
the base terms, provide that the court must select one of three
possible terms, a lower, middle or upper term. (See e.g. Penal
Code � 12022.5(a), imposing a sentence enhancement of 3, 4 or 10
years for personally using a firearm in the commission of a
felony.)
Section 1170.1(b) of the Penal Code instructs sentencing judges
how to impose sentence enhancements where there is a choice of
terms, "If an enhancement is punishable by one of three terms,
the court shall impose the middle term unless there are
circumstances in aggravation or mitigation, and state the
reasons for its sentencing choice, other than the middle term,
on the record at the time of sentencing." Although in
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Cunningham, the Court found that sentence enhancements, per se,
in California, did not violate the right to have a jury decide
all facts that could increase the sentence, the Court did not
address the specific issue of those enhancements that carry a
choice of terms. (See Cunningham v. California, 127 S. Ct. 856,
863 (2007).)
Since the enactment of SB 40, the California Court of Appeal has
found that section 1170.1 "suffers from the identical
constitutional infirmities identified by the United States
Supreme Court in Cunningham, supra, 549 U.S. 270 �127 S. Ct.
856], and is similarly unconstitutional. The Legislature has
taken no step to amend this provision to render it compliant
with the Sixth Amendment . . ." People v. Lincoln, 157 Cal.
App. 4th 196, 205 (2007). SB 150 (Wright), Chap. 171, Stats. of
2009, did just that. SB 150 applied the same "fix" to sentence
enhancement triads that SB 40 applied to the base term triads:
It authorized the court to impose any of the three terms without
making any additional factual findings. This approach was
expressly approved by the California Supreme Court in People v.
Sandoval, 41 Cal.4th 825, 844-845 (2007).
5. Sunset Provision
As described in Comment 3 above, SB 40, by its own terms, was
intended to maintain stability in California's criminal justice
system while the broader sentencing policy issues in California are
being reviewed. SB 40 was introduced a few months after the
Governor declared a state of emergency as a result of prison
overcrowding. (Prison Overcrowding State of Emergency
Proclamation, Proclamation by the Governor of the State of
California, October 4, 2006. http://gov.ca.gov/index.php
?/proclamation/4278/.) Despite the Governor's Proclamation, the
Legislature has not approved any significant changes to the way it
sentences criminal offenders. The provisions of SB 40 originally
were due to sunset on January 1, 2009, but were later extended to
January 1, 2011 (SB 1701 (Romero) - Ch. 416, Stats. 2008). SB 150
also included a sunset provision that corresponds to the date upon
which the provisions of SB 40 will also sunset.
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Last year the Legislature extended the sunset provisions on both SB
40 and SB 150 from their current sunset date of January 1, 2011 to
January 1, 2012. (AB 2263 (Yamada), Chap. 256, Statutes of 2010.)
This bill would extend those sunset dates to January 1, 2016.
SHOULD THIS SUNSET DATE BE EXTENDED?
6. Related Legislation
AB 520 (Ammiano) would provide 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. The bill would 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,
the court relied upon to impose an upper term. AB 520 is
currently pending in the Assembly Public Safety Committee and
has not yet been set for hearing.
7. Argument in Support
The Los Angeles District Attorney's office, which is the sponsor
of this bill, states:
California's current sentencing procedures were
established by Senate Bill 40 (Romero) of 2001 and
Senate Bill 150 (Wright) of 2009. This legislation
was in response to a United States Supreme Court
decision that held California's sentencing law to be
unconstitutional because the law at the time required
judges to make factual findings in order to impose a
maximum sentence. Cunningham v. California (2007) 549
US 270. The Supreme Court stated that the above
problem could be corrected either by providing for a
jury trial on the sentencing issue or by giving judges
the discretion to impose the higher prison term
without additional findings of fact.
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SB 40 and SB 150 corrected the constitutional problem
by giving judge's discretion to impose a minimum,
medium, or maximum prison term, without additional
factual findings. The approach to sentencing
established by this legislation was accepted and
embraced by the California Supreme Court in People v.
Sandoval (2007) 41 Cal.4th 843-52.
California's current sentencing procedure works well
and is fair to defendants. For the past four years,
judges have given minimum prison terms in 55% to 60%
of all cases. Medium terms were ordered an additional
25% to 28% of the time. Judges ordered Maximum prison
terms in only 12% to 17% of all cases.
With the exception of death penalty cases, California
has always provided for a jury trial to determine if a
defendant is guilty or not of a crime. Sentencing
decisions have always been made by judges. This
system is not only fair but it saves money as a
separate jury trial for sentencing would require that
we hire additional prosecutors, public defenders and
judges. California cannot afford that alternative at
a time when we are struggling to pay for basic
services.
SB 576 simply maintains the current system by
extending the sunset on SB 40 (Romero) and SB 150
(Wright) to January 1, 2016. . . .
8. Argument in Opposition
The California Attorneys for Criminal Justice states:
The United States Supreme Court offered several
avenues for California to follow in its quest to
comply with the Cunningham decision. SB 40 is
essentially a hybrid version of our old statute and
one of the recommendations. The Court noted that
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several other states adopted a "range" system that
does not run afoul of constitutional guarantees.
Under a range scenario, each offense has a
corresponding range of sentences, for example, 2-4
years in state prison. A judge is permitted to impose
any sentence in between this range - 2 years, 2 years
6 months, 3 years 7 months, etc. SB 40 fell short of
imposing a range. Instead, it retained the triad
structure- a low, mid and upper term. A judge may
impose either of these terms BUT NOTHING IN BETWEEN
these terms. This is not a true range - it remains a
triad system which inherently lends itself to a
PRESUMPTION OF THE MIDDLE TERM.
In fact, Judicial Council recently conceded that it
continues to train judges to follow the triad/presumed
mid-term scheme. As such, upper terms are only handed
out when aggravating facts are taken into
consideration by the judge, and still not proven by
the jury - THIS IS IN DIRECT VIOLATION OF CUNNINGHAM.
The most effective means to fix SB 40 is to require
the jury to hear all aggravating facts and permit the
jury to determine, beyond a reasonable doubt, which
facts are true. Otherwise we are allowing individuals
to be sentenced to an upper term based on innuendo,
untruths, and outright lies.
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