BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
SB 576 (Calderon)
Hearing Date: 05/26/2011 Amended: As Introduced
Consultant: Jolie Onodera Policy Vote: Public Safety 7-0
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BILL SUMMARY: SB 576 would extend the sunset date on specified
sentencing provisions to January 1, 2016, allowing courts to
select a lower, middle, or upper term for both base term
sentences and enhancements by exercise of the court's
discretion.
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Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13 2013-14 Fund
Base sentence discretion Unknown; potentially major costs
or savings General
Enhancement discretion Unknown; potentially major costs
or savings General
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STAFF COMMENTS: SUSPENSE FILE.
SB 576 would extend the sunset of provisions enacted by SB 40
(Romero) 2007 and SB 150 (Wright) 2009 that sought to conform
the state's determinate sentencing law to the findings in
Cunningham v. California, 549 U.S. 270 (2007). The Cunningham
decision found a portion of California's determinate sentencing
laws unconstitutional, on the grounds that they violated an
individual's right to a jury trial. Both the base sentencing and
enhancement provisions were most recently extended under AB 2263
(Yamada) 2010 to January 1, 2012.
The former version of the state's basic determinate sentencing
statute provided that, for crimes punishable by three possible
terms, the court had to impose the middle term of imprisonment
unless it found circumstances in aggravation or mitigation. If
the court found that there were aggravating or mitigating
circumstances, it could impose an upper or lower term.
However, in 2007, the U.S. Supreme Court held upper term
sentencing, under California's determinate sentencing law,
invalid under the Sixth Amendment. In Blakely v. Washington, 542
U.S. 296 (2004), the U.S. Supreme Court held in order to comport
with the Sixth Amendment, any fact (other than a prior
conviction) that exposes a defendant to a sentence beyond the
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relevant statutory maximum must be found by a jury beyond a
reasonable doubt or admitted by the defendant. Subsequently, in
the Cunningham decision, the U.S. Supreme Court held that
California's determinate sentencing law violated Blakely because
the middle term was the statutory maximum for the crime, but the
law allowed the court to impose the upper term based on
circumstances in aggravation found by the court by a
preponderance of the evidence.
In light of Cunningham, the Legislature amended Penal Code
section 1170(b) to fix the constitutional defect inherent in the
statute with regard to the term imposed for the crime.
Accordingly, under current law, the court is afforded discretion
to choose the appropriate term, based on the interest of
justice, from the three-term range provided as punishment for
the crime. Since the middle term is no longer the presumptive
term of imprisonment, the defendant has no right to a jury
trial, with proof beyond a reasonable doubt, on circumstances in
aggravation that would support the imposition of the upper term.
SB 150 (Wright) addressed the same constitutional issue for
sentence enhancements, some of which are punishable by three
possible terms. It deleted the requirement that the court impose
the middle term unless it found circumstances in aggravation or
mitigation and instead provided that the choice of term will be
within the court's discretion, when a sentence enhancement
called for the court to select either a lower, middle, or upper
term.
The fiscal impact of extending the provisions is unclear because
the costs are determined by the behavior and decisions of
individual judges in sentencing hearings. This bill poses
potentially significant annual General Fund costs, for increased
state prison terms to the extent that more offenders receive
aggravated enhancement terms than the current presumptive middle
term.
In the absence of a sunset extension, the court would no longer
be able to go above the middle term of a base sentence or an
enhancement. By giving judges this discretion, there is a
potential for increased incarceration time, which is a cost to
the General Fund in future years. This bill also, however, gives
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judges the authority to impose the lower limit of enhancement.
Even a minor change in the number of offenders deviating from
the middle term would drive significant costs or savings, given
the large base of offenders. It is estimated that 60,000
offenders will receive determinate prison sentences in Fiscal
Year 2010-11. A one-percent increase in upper term sentences
represents approximately 600 cases. Assuming an additional two
years per upper term sentence would cost an additional $30
million.
This bill could result in costs incurred in 2012, but those
additional costs would not be paid until after the middle term
is served of the sentence, the enhancement, or both.