BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       SB 1202|
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                                   THIRD READING 


          Bill No:  SB 1202
          Author:   Leno (D) 
          Amended:  5/31/16  
          Vote:     21 

           SENATE PUBLIC SAFETY COMMITTEE:  4-1, 4/12/16
           AYES:  Hancock, Leno, Liu, Monning
           NOES:  Stone
           NO VOTE RECORDED:  Anderson, Glazer

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 5/27/16
           AYES:  Lara, Beall, Hill, McGuire, Mendoza
           NOES:  Bates, Nielsen

           SUBJECT:   Sentencing


          SOURCE:    California Attorneys for Criminal Justice

          DIGEST:   This bill provides that aggravating factors relied  
          upon by the court to impose an upper term sentence or  
          enhancement must be tried to the jury and found to be true  
          beyond a reasonable doubt.


          ANALYSIS:  


          Existing law:


           1) Provides that when a judgment of imprisonment is to be  
             imposed and the statute specifies three possible terms, the  








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             choice of the appropriate term shall rest within the sound  
             discretion of the court.  (Pen. Code § 1170, subd. (b).)


           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 grant or deny probation;  
                impose the lower, middle, or upper prison term; impose  
                concurrent or consecutive sentences; and 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.)







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           5) Provides the following in applicable court rules:


              a)    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,  
                middle, or lower term on each count for which the  
                defendant has been convicted, as provided in section  
                1170(b) and these rules. 


              b)    In exercising his or her discretion in selecting one  
                of the three authorized prison terms referred to in  
                Section 1170(b), the sentencing judge may consider  
                circumstances in aggravation or mitigation, and any other  
                factor reasonably related to the sentencing decision.  The  
                relevant circumstances may be obtained from the case  
                record, the probation officer's report, other reports and  
                statements properly received, statements in aggravation or  
                mitigation, and any evidence introduced at the sentencing  
                hearing.


              c)    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.


              d)    A fact that is an element of the crime upon which  
                punishment is being imposed may not be used to impose a  
                greater term. 


              e)    The reasons for selecting one of the three authorized  
                prison terms referred to in Section 1170(b) must be stated  
                orally on the record, including where the court imposes  
                the middle term.  (Cal. Rule of Court, 4.420.)







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           6) Declares in a U.S. Supreme Court decision that California's  
             determinate sentencing law (DSL) prior to the enactment of SB  
             40 (Romero, Chapter 3, Statutes of 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.)


           7) Provides that 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.)


           8) Provides, in response to the Cunningham decision, that the  
             trial court makes the choice of lower, middle, or upper  
             prison term within its sound discretion.  (SB 40) 


           9) Includes the following uncodified legislative findings that  
             were adopted as part of 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."


           10)Includes a "sunset" provision, declaring that the SB 40  
             Cunningham fix will  remain in effect until January 1, 2017.


           11)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.  









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           12)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.) 


           13)Grants a court discretion to "bifurcate" jurytrial of prior  
             conviction allegations used to enhance a defendant's sentence  
             from underlying charges.  (People v. Calderon (1994) 9  
             Cal.4th 69, 72-79.)





           14)Provides that neither the defendant not the prosecution has  
             a right to "unitary"  jury trial on the charges and prior  
             conviction allegations.  (Id., at p. 72; People v. Cline  
             (1998) 60 Cal.App.4th 1327, 1332-1335.)


          This bill:


           1) Prohibits imposition of the upper term of imprisonment for a  
             criminal conviction or enhancement allegation unless  
             aggravating factors are found to be true by the finder of  
             fact.  


           2) Makes a legislative declaration that, to ensure  
             proportionality in sentencing, upper terms should be reserved  
             for cases in which aggravating facts exist and have been  
             proven to be true.


           3) Provides that the court may not impose an upper term based  
             on aggravating facts unless the facts were first presented to  
             the fact-finder and the fact-finder found the facts to be  
             true. 









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           4) 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. 


           5) Provides that a fact pled in the indictment or information  
             (document setting out the charges) cannot be used as an  
             aggravating factor at sentencing unless the fact has been  
             proved to the trier of fact (jury or court in a court trial)  
             or admitted by the defendant.


           6) Provides that a prior conviction that has been pled in the  
             charging document of a jury trial may be proven to the court  
             to the same extent as permitted prior to the effective date  
             of this bill.


           7) Provides that trial of all facts pled in aggravation of  
             sentence shall be bifurcated.  During trial of the underlying  
             charges and any enhancement, the jury shall not be informed  
             of the facts alleged as factors in aggravation unless that  
             fact is admitted or otherwise relevant to prove an element of  
             a charge or enhancement and not excluded as overly  
             prejudicial.


          Background


          According to the author:


             Senate Bill 1202 seeks to address the constitutional  
             defect in our California Felony Sentencing laws. In  
             2007, the United States Supreme Court, in its decision  
             in Cunningham v. California, 59 U.S. 270 (2007), found  
             California's felony sentencing to be unconstitutional.  
             The court found that judges in California improperly  
             sentenced persons to longer prison sentences based on  
             facts that were never presented to the jury and proven  
             true beyond a reasonable doubt. Following the Cunningham  
             decision, the legislature sought to cure this  
             constitutional defect by allowing judges to consider  







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             "factors," not "facts" in aggravation when imposing an  
             enhanced sentence. The current Cunningham "fix" expires  
             on January 1, 2017.


             Given California's move towards more thoughtful and  
             innovative criminal justice reform - Realignment and  
             Propositions 36 and 47 - 2016 is the year to make a  
             powerful stance on over-criminalization.  Along with the  
             Governor's ballot measure, SB 1202 seeks to prevent the  
             unilateral impositions of longer sentences by judges.  
             This bill would require any aggravating facts to be  
             presented to the jury, and proved true beyond a  
             reasonable doubt, before an increased sentenced can be  
             imposed. Furthermore, this bill would require judges to  
             state on the record the reasons for its sentencing  
             choice, including specific facts of aggravation that led  
             to an imposition of an upper term. This bill would  
             provide a mechanism to lower sentences on the front end.  



          California's 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 in 2007, 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.   







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          Selection of the upper term is justified only if, after a  
          consideration of all the relevant facts, the circumstances in  
          aggravation outweigh the circumstances in mitigation."


          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.)  


          In finding that California's DSL, prior to SB 40, violated the  
          right to a trial by jury the Supreme Court stated, "California's  
          DSL, and [applicable] rules ?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 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, the DSL did exactly what was  
          forbidden under Apprendi. 


          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.  Other States have chosen to  
          permit judges genuinely to exercise broad discretion . . .  
          within a statutory range, which, everyone agrees, encounters no  
          Sixth Amendment shoal."  (Cunningham v. California, supra, 549  
          U.S. 270, 293-294, citations and footnotes omitted.)







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          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.


          The sponsor has argued that Cunningham has made it more  
          difficult to challenge an improper imposition of an upper term.   
          Prior to Cunningham, the court had to make a finding of a fact  
          to impose the upper term.  After SB 40, the court simply had to  
          articulate a reason for imposing the upper term.  The defendant  
          could previously argue that there was insufficient evidence of  
          the aggravating fact, while now a defendant must establish that  
          the court abused its discretion in imposing  an upper term.  A  
          court seldom had difficulty finding a fact to impose the upper  
          term prior to the decision in Cunningham.  Nevertheless, the  
          aggravating factor supporting an upper term must reflect that  
          the defendant's crime is distinctly worse than the average.  
          (People v. Moreno (1982) 128 Cal.App.3d 103, 110.)  Further,  
          California law - from the time of the enactment of the DSL in  
          1976 - has prohibited the court from using a fact that underlies  
          an enhancement as a reason to impose the upper term.  (Pen. Code  
          § 1170, subd. (b).)  


          Common reliance on the defendant's criminal record and other  
          "bad acts" to support an upper term reveals the thorniest issue  
          in this bill.  As a long-standing rule of constitutional due  
          process, the prosecution cannot present evidence that merely  
          shows the defendant's propensity to commit the charged crime.   
          This is classic improper character evidence.  To address this  
          issue, this bill requires bifurcation of the trial of  
          aggravating factors. That is, trial on the aggravating factors  
          would be held after the defendant is convicted of the underlying  
          offense and any enhancement allegations.  Current sentencing law  
          allows a defendant to bifurcate most prior conviction  
          allegations 









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          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          According to the Senate Appropriations Committee:

           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 (eight  
            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 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 DSL. 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 bill  
            results in longer or shorter felony jail terms as a result of  
            bifurcated trials. 



          SUPPORT:   (Verified5/31/16)


          California Attorneys for Criminal Justice (source)
          California Catholic Conference, Inc.
          California Public Defenders Association
          Drug Policy Alliance
          Friends Committee on Legislation of California
          Legal Services for Prisoners with Children







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          OPPOSITION:   (Verified5/31/16)



          California District Attorneys Association
          California State Sheriffs' Association

           

          Prepared by:Jerome McGuire / PUB. S. / 
          5/31/16 21:42:47


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