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 --