BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 1202| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 SB 1202 Page 2 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.) SB 1202 Page 3 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.) SB 1202 Page 4 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. SB 1202 Page 5 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. SB 1202 Page 6 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 SB 1202 Page 7 "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. SB 1202 Page 8 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.) SB 1202 Page 9 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 SB 1202 Page 10 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 SB 1202 Page 11 OPPOSITION: (Verified5/31/16) California District Attorneys Association California State Sheriffs' Association Prepared by:Jerome McGuire / PUB. S. / 5/31/16 21:42:47 **** END ****