BILL ANALYSIS �
SB 576
Page 1
Date of Hearing: June 21, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 576 (Calderon) - As Introduced: February 17, 2011
As Proposed to be Amended in Committee
SUMMARY : Extends the sunset date from January 1, 2012 to
January 1, 2014 for provisions of law which provide that the
court shall, in its discretion, impose the term or enhancement
that best serves the interest of justice, as required by SB 40
(Romero), Chapter 40, Statutes of 2007; SB 150 (Wright), Chapter
171, Statutes of 2009; and Cunningham vs. California (2007) 549
U.S. 270. Makes other conforming changes.
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
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
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reason include "�s]electing one of the three authorized prison
terms referred to in Penal Code 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 Penal Code
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
of Court, Rule 4.423.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author," SB 576 simply
extends the sunset on California's current sentencing law to
January 1, 2016 California's current sentencing procedures
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were established by Senate Bill 40 (Romero) of 2007 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 that 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 by either
providing for a jury trial on the sentencing issue or by
giving the judge discretion to impose the higher prison 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.
"For the past four years judges have given the 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
prisons terms only 12% to 17% of all cases California's
current sentencing procedures works well and is fair to
defendants."
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."
(Id. at p. 293.)
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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 1170.1, 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)Sunset Provision : 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. Thus,
SB 40, by its own terms, was intended to be a temporary
measure.
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,
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Proclamation by the Governor of the State of California,
October 4, 2006. .) Despite the
Governor's Proclamation, the Legislature has not approved any
significant changes to the way criminal offenders are
sentenced. 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), Chapter 416, Statutes of 2008.]
SB 150 also included a sunset provision that corresponds to
the date upon which the provisions of SB 40 will also sunset.
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),
Chapter 256, Statutes of 2010.] This bill extends those
sunset dates to January 1, 2014.
4)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,
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
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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, then 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
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
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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.
5)Arguments in Support : According to the Los Angeles County
District Attorney's Office , the sponsor of this bill,
"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 guilty 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."
6)Related Legislation : AB 520 (Ammiano) extends the sunset date
from January 1, 2012 to January 1, 2013 for the same
provisions of law. AB 520 is pending referral by the Senate
Rules Committee.
7)Prior Legislation :
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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
Los Angeles County District Attorney's Office (Sponsor)
California District Attorneys Association
California State Sheriffs' Association
Peace Officers Research Association of California
Opposition
None
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744