BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1016|
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THIRD READING
Bill No: SB 1016
Author: Monning (D)
Introduced:2/11/16
Vote: 27
SENATE PUBLIC SAFETY COMMITTEE: 6-0, 4/12/16
AYES: Hancock, Glazer, Leno, Liu, Monning, Stone
NO VOTE RECORDED: Anderson
SENATE APPROPRIATIONS COMMITTEE: 6-1, 5/27/16
AYES: Lara, Beall, Hill, McGuire, Mendoza, Nielsen
NOES: Bates
SUBJECT: Sentencing
SOURCE: California District Attorneys Association
DIGEST: This bill extends the sunset provisions from January 1,
2017 to January 1, 2022 on specified basic sentencing provisions
on the factors a court shall consider and procedure the court
shall follow in choosing to impose a lower, middle or upper
term.
ANALYSIS:
Existing law and Rules of Court:
1) Provides that when a judgment of imprisonment is to be
imposed and t
the statute specifies three possible terms, the choice of the
appropriate term shall rest within the sound discretion of
the court. (Pen. Code § 1170, subd. (b).)
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Page 2
2) Provides that prior to sentencing, either party or the
victim, or the family of the victim if the victim is
deceased, may submit a statement in aggravation or
mitigation, as specified. 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 and additional evidence introduced
at the sentencing hearing. (Pen. Code § 1170, subd. (b).)
3) Provides that the court shall select the term that best
serves the interests of justice and set forth on the record
the reasons for imposing the term selected. 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. The provision concerning the
authority of the court to choose one of three prescribed
sentencing terms upon sunsets on January 1, 2014. (Pen. Code
§ 1170, subd. (b).)
4) Provides that the Judicial Council shall seek to promote
uniformity in sentencing under Section 1170, by:
a) The adoption of rules providing criteria for the
consideration of the trial judge at the time of sentencing
regarding the court's decision to:
i) grant or deny probation;
ii) impose the lower, middle, or upper prison term;
iii) impose concurrent or consecutive sentences; and
iv) determine whether or not to impose an
enhancement where that determination is permitted by
law.
b) The adoption of rules standardizing the minimum
content and the sequential presentation of material in
probation officer reports submitted to the court. (Pen.
Code 1170.3.)
5) 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,
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Page 3
middle, or lower term on each count for which the defendant
has been convicted, as provided in section 1170(b) and these
rules.
6) Provides that in exercising discretion to select one of the
three authorized prison terms referred to in section 1170(b),
the court may consider circumstances in aggravation or
mitigation, and any other factor reasonably related to the
sentencing decision.
7) Provides that 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.
8) Specifies that a fact that is an element of the crime upon
which punishment is being imposed may not be used to impose a
greater term.
9) Requires that the reasons for selecting one of the three
authorized prison terms referred to in section 1170(b) be
stated orally on the record, including where the court
imposes the middle term. (Cal. Rule of Court, 4.420.)
10)Establishes through a United States Supreme Court decision
that California's determinate sentencing law prior to the
enactment of SB 40 (Romero, Chapter 3, Statutes of 2007) in
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) 549 U.S.
270.)
11)Establishes through a United States Supreme Court decision
law that to conform California's sentencing law 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, supra, 549 U.S. 270 - Decision
Syllabus.)
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12)Includes amendments to Penal Code sections 1170 and 1170.3
to make the choice of lower, middle, or upper prison term one
within the sound discretion of the court, in compliance with
Cunningham. (SB 40, Romero)
13)Includes the following uncodified legislative findings in SB
40: "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 ? It is further
the 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.
14)Includes a "sunset" provision, declaring that the
legislative response to Cunningham remains in effect until
January 1, 2017. (SB 463, Pavley, Chapter 598, Statutes of
2013.)
15)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, Chapter 171, Statutes 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 its
provisions would remain in effect only until January 1, 2011,
unless a later enacted statute deletes or extends that date.
The sunset date on enhancement triads has also been extended
to January 1, 2017. (SB 463, Pavley, Chapter 598, Statutes
of 2013.)
16)Provides that prior convictions used to enhance a
defendant's sentence or subject the defendant to a special
sentencing scheme, including the Three Strikes law, must be
alleged in the charging document and proved the jury (or
court in a court trial) beyond a reasonable doubt. (Pen.
Code § 1025.)
17)Grants a court discretion to "bifurcate" trial of prior
conviction allegations used to enhance a defendant's
sentence, such that trial of the prior conviction allegations
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is only held after the jury has convicted the defendant on
the underlying criminal charges. (People v. Calderon (1994)
9 Cal.4th 69, 72-79.)
18)Provides that neither the defendant not the prosecution has
a right to "unitary" trial on the prior conviction
allegations conducted before the jury in conjunction with the
underlying criminal charges. (Id., at p. 72; People v. Cline
(1998) 60 Cal.App.4th 1327, 1332-1335.)
19)Includes state constitutional provisions stating that prior
convictions can be used without limitation for impeachment or
enhancement of sentence. "When a prior felony conviction is
an element of any offense, it shall be proven to the jury in
open court." (Cal. Const., Art. I, § 28 (d).)
This bill extends the sunset dates in these sentencing
provisions to January 1, 2022.
Background
California's determinate sentencing law (DSL) provides that
crimes may be punished by one of three prison terms in a
"triad," 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." (Pen. Code § 1170, subd. (b).)
Having established this system of sentencing "triads," the
Legislature delegated to the Judicial Council the duty to adopt
rules to guide the trial judge in making a decision to impose
the lower, middle, or upper prison term. (Pen. 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
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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, supra,
549 U.S. 270, 274-275, citing Apprendi v. New Jersey (2000) 530
U.S. 466; Ring v. Arizona (2002) 536 U.S. 584; Blakely v.
Washington (2004) 542 U.S. 296; and United States v. Booker
(2005) 543 U.S. 220.) 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, emphasis in original.) The United States
Supreme Court has recently extended Apprendi to clarify that it
applies to any fact that authorizes imposition of a sentence in
excess of the statutory minimum or maximum. (Alleyne v. United
States (2013) 186 L.Ed.2nd 314
Prior to SB 40, in finding that California's DSL violated the
right to a trial by jury, 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, supra, 549 U.S. 270, 279.) Because
the 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 "allow[ed] a judge to
impose a sentence above the statutory maximum based on a fact,
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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, supra, 549 U.S. 270,
281.)
The Supreme Court in Cunningham 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. ? [S]everal States
have modified their systems ? to retain determinate sentencing
?. 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, supra, 549 U.S.
270, 293-294, citations and footnotes omitted.)
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee:
Potentially major costs or savings to the extent the extended
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sentencing provisions result in longer or shorter prison terms
than otherwise would have occurred under a presumptive middle
term. A one percent increase in upper term sentences, assuming
an additional two years per upper term sentence, would result in
additional costs in excess of several million dollars (General
Fund). The additional costs would likely not be incurred until
after the middle term is served of the sentence, the
enhancement, or both.
SUPPORT: (Verified5/27/16)
California District Attorneys Association (source)
California Police Chiefs Association
California State Sheriffs' Association
Professional Peace Officers Association
OPPOSITION: (Verified5/27/16)
California Attorneys for Criminal Justice
Prepared by:Jerome McGuire / PUB. S. /
5/28/16 17:15:13
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