BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session SB 1202 (Leno) - Sentencing ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: March 28, 2016 |Policy Vote: PUB. S. 4 - 1 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: May 2, 2016 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: SB 1202 would provide that aggravating facts relied upon by the court to impose an upper term sentence or enhancement must be presented to the jury and found to be true beyond a reasonable doubt. This bill requires the trial of all facts pled in aggravation of sentence to be bifurcated, as specified. Fiscal Impact: Bifurcated trials : Potentially major increase in ongoing costs to the state trial courts in the millions of dollars (General Fund*) annually to plead and prove aggravating facts in bifurcated trials. To the extent 25 percent to 50 percent of an estimated 5,000 felony trials involving a fact alleged in aggravation takes an average of one court day (8 hours), assuming an hourly court cost of $837, annual costs could range between $8.4 million to $16.7 million. To the extent the number and duration of bifurcated trials is greater or less SB 1202 (Leno) Page 1 of ? than assumed above, actual costs would be adjusted accordingly. State prisons : Unquantifiable, but potentially significant increases or decreases in future state prison costs (General Fund) to the extent this measure results in longer or shorter prison terms than imposed under the existing determinate sentencing law. Even a minor change to resulting sentences drives significant costs or savings, given the large base of offenders and the significant unit cost to incarcerate an offender. County jails : Potentially significant increases or decreases in local jail costs (Local Funds) to the extent this measure results in longer or shorter felony jail terms as a result of bifurcated trials. *Trial Court Trust Fund Background: California's existing sentencing procedures were initially established by SB 40 (Romero) Chapter 3/2007 and SB 150 (Wright) Chapter 171/2009, that sought to conform the state's determinate sentencing laws to the findings in Cunningham v. California (2007) 549 U.S. 270. 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. 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 Apprendi v. New Jersey (2000) 530 U.S. 466, the U.S. Supreme Court held that the constitutional right to a jury trial proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior SB 1202 (Leno) Page 2 of ? conviction, not found by a jury or admitted by the defendant. The U.S. Supreme Court clarified in Blakely v. Washington (2004) 542 U.S. 296, that in order to comport with the Sixth Amendment, any fact (other than a prior conviction) that exposes a defendant to a sentence beyond the 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. The Court suggested this problem could be corrected by either providing a jury trial on the sentencing issue or by providing judicial discretion to impose the higher term without additional findings of fact. In light of Cunningham, the Legislature chose the latter, and enacted SB 40 (Romero) 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 interests of justice, from the three-term range provided as punishment for the offense. 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. This bill would provide for the second option suggested by the Court, and would require a jury to find aggravating facts to be true. Proposed Law: This bill would revise the state's three-tier determinate sentencing law by prohibiting imposition of the upper term of imprisonment unless aggravating facts are presented and found to be true by a jury in bifurcated trials. Specifically, this bill: Makes a legislative declaration that, to ensure proportionality in sentencing, upper terms should be reserved for individual cases in which aggravating facts exist and have been proven to be true. SB 1202 (Leno) Page 3 of ? Provides the court shall not impose an upper term based on aggravating facts unless the facts were presented to a jury and the jury found the facts to be true. 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. Provides that a fact pled in the indictment, information, or accusatory pleading in aggravation of sentence cannot be used as an aggravating factor in sentencing unless that fact has been proven to the trier of fact or admitted by the defendant, except that, in the case of jury trial, prior convictions that have been pled as provided may be proven to the court to the same extent as they were permitted to be proven to the court prior to January 1, 2017. Provides that whether to the jury or to the court, where permitted for prior convictions or if a jury is waived, the trial of all facts pled in aggravation of sentence shall be bifurcated. During the first phase, the jury shall not be informed of a fact alleged in aggravation of the sentence unless that fact is otherwise admissible and relevant to the merits of the criminal charge or enhancement and not excluded pursuant to Section 352 of the Evidence Code. The jury shall not be informed that a fact is alleged in aggravation of the sentence until the beginning of the second phase of the trial. Related Legislation: SB 1016 (Monning) 2016 would extend the sunset from January 1, 2017, to January 1, 2022, on specified basic sentencing provisions on the factors a court shall consider and the procedure the court shall follow in choosing to impose a lower, middle or upper term. SB 1016 is pending on the Suspense File of this Committee. Prior Legislation: AB 765 (Ammiano) 2013 would have prohibited imposition of the upper term of imprisonment unless aggravating facts were found to be true by a jury. This bill was held on the SB 1202 (Leno) Page 4 of ? Suspense File of the Assembly Appropriations Committee. Staff Comments: While over 200,000 felony cases are disposed of by the judicial system each year, only a small percentage move to trial. The most recent information available reflects data for Fiscal Year (FY) 2013-14 from the 2015 Annual Court Statistics Report, which indicates 6,630 cases, or 2.6 percent of felony dispositions went to trial. To the extent the effects of Proposition 47 (2014) are not fully reflected in the available data for FY 2013-14, the number of felony trials prospectively may, or may not, decrease. Assuming a 25 percent decline in the number of felony trials would reduce the number of felony trials to approximately 5,000 annually. The percentage of felony trials that will require bifurcation is unknown. To provide a general sense of costs, to the extent 25 percent to 50 percent of felony trials require bifurcation, annual costs would range from $8.4 million to $16.7 million, utilizing the hourly court cost of $837 and assuming an additional day of court time (8 hours) would be required. Given the numerous factors that cannot be known with certainty (including the number of future felony trials each year, the number of felony trials requiring bifurcation, and the potential duration of the bifurcated trials), costs could be substantially higher or lower. Likewise, the fiscal impact resulting from changes to the terms of incarceration in state prisons and local jails is unquantifiable but potentially in the millions of dollars given the number of defendants impacted and the significant unit costs to incarcerate these individuals. Any costs or cost savings cannot be determined with certainty. For example, data from the CDCR report on upper term sentencing reflects over 8,000 inmates flagged for imposition of an upper term sentence in 2014 (21.5 percent of determinate sentences). While a simple calculation of a one percent increase or decrease to reported upper term sentences would seem to indicate a cost or savings of over $2.3 million in any one year, the actual impact to sentencing costs would require a much more extensive review of each defendant's case. The upper term data is not of such detail to reflect, for SB 1202 (Leno) Page 5 of ? example, those defendants who potentially had a prior strike allegation dismissed (that would have doubled the defendant's sentence) by the court in order to impose an upper term, which could have the practical effect of imposing a shorter overall sentence than a doubled middle or lower term. Additionally, a court could impose the upper term and choose not to impose an enhancement, which would result in a longer overall sentence. As a result, an inmate sentenced to an upper term under existing determinate sentencing law could potentially receive a longer term under the proposed sentencing structure proposed by this measure. -- END --