BILL ANALYSIS �
SB 576
Page 1
Date of Hearing: July 6, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
SB 576 (Calderon) - As Amended: June 28, 2011
Policy Committee: Public Safety
Vote: 7-0
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), pursuant to
Cunningham vs. California (2007), by extending the sunset date
from January 1, 2012 to January 1, 2014 on provisions of law
(the Cunningham fix) that require the court to use its
discretion to impose the term or enhancement that best serves
the interest of justice, as required by SB 40 (Romero) and
subsequent extensions.
FISCAL EFFECT
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 2010, the number of
upper terms per the number of determinate sentences increased
slightly, from about 15% to about 17%. These figures appear to
belie the contention of some that current law, which this bill
extends, results in significantly more upper-term sentences.
COMMENTS
1)Rationale. This bill extends the current Cunningham fix from
January 2012 to January 2016.
SB 576
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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
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.
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)Support . According to the L.A. District Attorney's Office, the
sponsor of this bill, "California's current sentencing
procedure works well and is fair to defendants. For the past
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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."
4)Opposition . According to the California Attorneys for
Criminal Justice (CACJ), "The 'SB 40' component impacts nearly
every felony case in California. As currently in effect, this
approach compromises constitutional protections and exposes
individuals to an 'upper term' sentence even in the absence of
aggravating factors. CACJ believes this approach contradicts
California's stated goal of proportionate sentencing and runs
afoul of the right to a jury. SB 40 is becoming unworkable.
Judges are quietly following the old sentencing rules, or are
violating the United States Supreme Court decision in
Cunningham by relying on unproven facts to impose an upper
term. CACJ members are beginning to win motions at the trial
court level and having sentences overturned because judges are
unable to comply with SB 40 without violating other
protections. It is time for this 'temporary' law to sunset
and �a] more constitutionally compliant structure �to] be
adopted."
5)Related Legislation : AB 520 (Ammiano), sponsored by CACJ, as
introduced required aggravating sentencing factors to be pled
and proved. AB 520 was amended to simply extend the Cunningham
fix to January 1, 2013 and is pending in the Senate.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081