BILL ANALYSIS �
AB 765
Page 1
Date of Hearing: April 17, 2013
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 765 (Ammiano) - As Amended: March 19, 2013
Policy Committee: Public
SafetyVote: 5-2
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 85,000
offenders received determinate prison sentences in 2011 and
2012 combined).
Based on CDCR figures from 2008 through 2010, the number of
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upper terms per the number of determinate sentences increased
slightly, from about 14% to about 17%, though in actual
numbers, there were 44 fewer upward deviations in 2010 than in
2006. These figures appear to belie the contention of
proponents of AB 765 that current law, which does not require
that aggravating sentencing factors be pled and proved,
results in significantly more upper-term sentences.
Moreover this bill might 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 plead and prove aggravating factors.
For example, if 50% of 9,000 cases involving an upward
sentence factor took an average of two additional hours,
assuming hourly court costs of about $550, the annual cost
would be about $5 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 the
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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 Jan. 1, 2009, but were extended
to Jan. 1, 2011 by SB 1701 (Romero), Statutes of 2008; to Jan
1, 2012 by AB 2263 (Yamada) Statutes of 2010; and to Jan. 1,
2014 by SB 576 (Calderon), Statutes of 2011.
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 765 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
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provides a statutory requirement of a jury trial for many
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 to what degree requiring
aggravating factors to be tried to a jury will burden the
criminal justice system.
4)Support . California Attorneys for Criminal Justice, in
reference to California's current Cunningham sentencing fix,
"The California statute essentially eliminates a person's
right to confront the witnesses against them by allowing the
judge to unilaterally impose an enhancement.
"AB 765 would rectify this elimination of this essential right
at trial. This bill prevents a judge from unilaterally
imposing an extended prison sentence based on the facts that a
jury never sees or finds to be true. The goal of this bill
still requires people who break the law to be accountable;
nonetheless, the decision to impose an enhancement to a
person's term should be determined by the jury or an
independent factfinder and not the judge unilaterally.
5)Opposition . The Judicial Council and the CA District Attorneys
Association (CDAA) contend the state's criminal justice system
will be inundated with lengthier cases and potentially more
upward deviations as a result. The Judicial Council also
objects to what it sees as a diminishment of judicial
discretion.
According to the CDAA, "Requiring the People to plead and
prove aggravating facts supporting an upper term would unduly
prolong trials and burden already stretched judicial
resources. In most cases, such a system would require
bifurcated trials. Extensive new jury instructions would have
to be drafted. The People would have to prove to a jury all
prior convictions, juvenile findings, and defendant's
probation/parole status and history of probation/parole
violations.
"Moreover, many aggravated facts are ill-suited to jury
determination and have traditionally been entrusted to the
sound discretion of the sentencing judge. Indeed, requiring
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aggravating factors to be pleaded by the People and found true
by a jury could result in the presumably unintended outcome
that the upper term might be imposed more frequently."
6)Identical legislation , AB 520 (Ammiano), 2011, was amended to
a different topic while on this committee's Suspense File.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081