BILL ANALYSIS Ó SB 1202 Page 1 Date of Hearing: June 28, 2016 Counsel: Sandy Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair SB 1202 (Leno) - As Amended May 31, 2016 SUMMARY: Provides that aggravating factors relied upon by the court to impose an upper term sentence must be tried to the jury and found to be true beyond a reasonable doubt. Specifically, this bill: 1)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. 2)Prohibits imposition of the upper term of imprisonment based SB 1202 Page 2 on aggravating factors unless those are presented to, and found to be true, by the finder of fact. 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. 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 or accusatory pleading 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. EXISTING LAW: 1)Declares that the purpose of imprisonment for crime is punishment; that this purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances; and that the elimination of disparity, and the provision of uniformity, of SB 1202 Page 3 sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense, as determined by the Legislature, to be imposed by the court with specified discretion. (Pen. Code, § 1170, subd. (a)(1).) 2)Provides that when a judgment of imprisonment is to be imposed and 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).) 3)Provides that when a sentencing enhancement specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. (Pen. Code, § 1170.1, subd. (d).) 4)Provides that sentencing choices requiring a statement of a reason include "[s]electing one of the three authorized prison terms referred to in section 1170(b) for either an offense or an enhancement." (Cal. Rules of Court, Rule 4.406(b)(4).) 5)Requires the sentencing judge to consider relevant criteria enumerated in the Rules of Court. (Cal. Rules of Court, Rule 4.409.) 6)Provides that, in exercising discretion to select one of the three authorized prison terms referred to in statute, "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." (Cal. Rules of Court, Rule 4.420(b).) 7)Prohibits the sentencing court from using a fact charged and found as an enhancement as a reason for imposing the upper term unless the court exercises its discretion to strike the punishment for the enhancement. (Cal. Rules of Court, Rule 4.420(c).) SB 1202 Page 4 8)Prohibits the sentencing court from using a fact that is an element of the crime to impose a greater term. (Cal. Rules of Court, Rule 4.420(d).) 9)Enumerates circumstances in aggravation, relating both to the crime and to the defendant, as specified. (California Rules of Court, Rule 4.421.) 10)Enumerates circumstances in mitigation, relating both to the crime and to the defendant, as specified. (California Rules of Court, Rule 4.423.) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: 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 as 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 'factors,' not 'facts' in aggravation when imposing an enhanced sentence. This law, implemented under SB 40 with a sunset provision, has been extended multiple times since 2007. However, the sunset is set to expire on January 1, 2017. SB 1202 Page 5 "Given California's move towards more thoughtful and innovative criminal justice reform, i.e. Realignment, 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, absent a finding of aggravating facts --- a principle that California relied upon since 1979 but was interrupted by the court decision. This bill would require any aggravating facts to be presented to the jury, and proved true beyond a reasonable doubt, before being presented to a judge for the sentencing decision. In essence, this bill simply ensures facts are vetted by a jury before a judge can rely on these facts to impose a maximum sentence. "The bill also restores California's practice of presuming the middle term for all felonies -- this prevents arbitrariness and promotes consistency from judge to judge and county to county. 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 change California's focus from addressing issue of over incarceration at the back end, to providing a mechanism to lower sentences on the front end. The time has come to make major sentencing reform changes. SB 1202 will help lead California." 2)Background: The Sixth Amendment right to a jury applies to any factual finding, other than that of a prior conviction, necessary to warrant any sentence beyond the presumptive maximum. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490; Blakely v. Washington (2004) 524 U.S. 296, 301, 303-04.) In Cunningham v. California (2007) 549 U.S. 270, the United States Supreme Court held California's Determinate Sentencing Law (DSL) violated a defendant's right to trial by jury by placing sentence-elevating fact finding within the judge's province. (Id. at p. 274.) The DSL authorized the court to increase the defendant's sentence by finding facts not reflected in the jury verdict. Specifically, the trial judge SB 1202 Page 6 could find factors in aggravation by a preponderance of evidence to increase the offender's sentence from the presumptive middle term to the upper term and, as such, was constitutionally flawed. The Court stated, "Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the sentence cannot withstand measurement against our Sixth Amendment precedent." (Id. at p. 293.) The Supreme Court provided direction as to what steps the Legislature could take to address the constitutional infirmities of the DSL: "As to the adjustment of California's sentencing system in light of our decision, the ball . . . lies in [California's] court. We note that several States have modified their systems in the wake of Apprendi and Blakely to retain determinate sentencing. They have done so 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, supra, 549 U.S. at pp. 293-294.) Following Cunningham, the Legislature amended the DSL, specifically Penal Code sections 1170 and 1170.2, to make the choice of lower, middle, or upper prison terms one within the sound discretion of the court. (See SB 40 (Romero) - Chapter 3, Statutes of 2007.) This approach was embraced by the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825, 843-852. The procedure removes the mandatory middle term and the requirement of weighing aggravation against mitigation before imposition of the upper term. Now, SB 1202 Page 7 the sentencing court is permitted to impose any of the three terms in its discretion, and need only state reasons for the decision so that it will be subject to appellate review for abuse of discretion. (Id. at pp. 843, 847.) 3)Is the Current Method Still Constitutionally Infirm? The United States Supreme 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. at 281.) The Court has with increasing frequency in recent years insisted on the jury's essential role in resolving factual issues related to sentencing. (See e.g. Southern Union Co. v. United States (2012) 132 S.Ct. 2344 [The rule of Apprendi applies to the imposition of criminal fines].) In fact, in 2013 the Court once again considered the scope of the Sixth Amendment in the sentencing context in a case involving mandatory-minimum sentencing schemes, and held that any fact that increases the mandatory minimum is an "element" that must be submitted to the jury. (See Alleyne v. United States (2013) 133 S. Ct. 2151, overruling Harris v. United States (2002) 536 U.S. 545.) The Court explained that the logic of Apprendi requires a jury to find all facts that fix the penalty range of a crime. The mandatory minimum is just as important to the statutory range as is the statutory maximum. (Id. at pp. 2160-2161.) Perhaps the most important sentencing label that must be scrutinized in assessing a sentencing determination for Apprendi/Blakely error is "judicial discretion." The Supreme Court stated in Apprendi that it was not eliminating judicial discretion over sentencing. (Apprendi, supra, 530 U.S. at p. 482.) However, in Blakely, the Court also held that the exercise of judicial discretion is unconstitutional if it relies on a fact not found true by the jury, in whose absence the state's sentencing laws would require a lower sentence. (Blakely, supra, 124 S.Ct. at pp. 2537-2538.) Simply because a state's sentencing laws say that they are giving a judge SB 1202 Page 8 discretion, even broad discretion, to make a particular determination affecting the defendant's sentence does not mean that the exercise of that discretion is immune from an Apprendi/Blakely challenge. Unless the state has given the sentencing court unfettered discretion to do whatever it wants to in making a particular determination that affects the defendant's sentence, the exercise of that discretion will potentially be susceptible to such a challenge. Because Penal Code Section 1170 continues to require judicial findings as a predicate to the imposition of an aggravated term, it arguably still violates the Sixth Amendment. While the trial court "will not be required to cite 'facts' that support its decision or to weigh aggravating and mitigating circumstances" (People v. Sandoval, supra, 41 Cal.4th at pp. 846-847, citing § 1170, subd. (c)), as adopted by the California Supreme Court, Penal Code Section 1170 requires the judge to enter "reasons" supporting the exercise of his or her sentencing discretion on the record. (Id. at p. 844; see also Pen. Code, § 1170, subd. (b).) Those reasons remain governed by the California Rules of Court. (People v. Sandoval, supra, 41 Cal.4th at 844; Pen. Code, § 1170.3, subd. (a)(2).) And the Rules of Court, which lay out the permissible bases for trial courts to impose an upper or lower term, have not changed. Rule 4.421, listing circumstances in aggravation, distinguishes between factors relating to the crime and factors relating to the defendant. The aggravating factors relating to the crime are: "(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; (2) The defendant was armed with or used a weapon at the time of the commission of the crime; (3) The victim was particularly vulnerable; (4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission; (5) The defendant induced a minor to commit or assist in the commission of the crime; (6) SB 1202 Page 9 The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process; (7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed; (8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism; (9) The crime involved an attempted or actual taking or damage of great monetary value; (10) The crime involved a large quantity of contraband; and (11) The defendant took advantage of a position of trust or confidence to commit the offense." Many of these offense factors involve conduct that is the same conduct proscribed by various sentence enhancements which must be charged and proven to a jury. For example, that the crime involved great violence or bodily harm is substantially similar to the great bodily injury enhancement (Pen. Code, § 12022.7); that the defendant was armed with or used a weapon encompasses the same conduct as an arming enhancement (Penal Code Section 12022); that the crime involved a taking or damage of great monetary value mirrors the value-of-loss enhancement (Pen. Code, § 12022.6); and that the crime involved a large quantity of contraband is akin to the weight enhancement for controlled substance violations. (Health & Saf. Code, § 11370.4.) Moreover, under the Rules of Court, it remains the case that "[a] fact that is an element of the crime may not be used to impose a greater term." (Cal. Rules of Court, Rule 4.420(d).) Similarly, Penal Code section 1170, subdivision (b) continues to provide that "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." It really should not matter that the factors outlined in the Rules of Court are now called "reasons" rather than "facts." "If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact - no SB 1202 Page 10 matter how the State labels it - must be found by a jury beyond a reasonable doubt." . . . "[T]he characterization of a fact or circumstance as an 'element' or a 'sentencing factor' is not determinative of the question 'who decides,' judge or jury," . . . . (United States v. Booker, supra, 543 U.S. at 231.) Since under reformed Penal Code Section 1170, it is still the case that an upper-term sentence must be based on factors in the Rules of Court, arguably the sentencing scheme still violates a defendant's Sixth Amendment rights, at least as to offense-based factors relied upon to impose an upper-term sentence. 4)Would Jury Trials on Aggravating Factors Burden the Criminal Justice System? California already provides a statutory requirement of a jury trial for many enhancing factors. For example, to subject a defendant to the punishment prescribed by Penal Code Section 667.61, a jury must find the underlying facts such as great bodily injury, mayhem or torture, the use of a deadly weapon, tying or binding, or administration of a controlled substance by force. (Pen. Code, § 667.61, subds. (d), (e) and (i).) In a "Three-Strikes" case, a defendant's prior conviction must be pleaded and proved. (Pen. Code, § 1170.12, subd. (a).) The facts that permit enhancements of punishments for violating various drug laws must also be pleaded and proved. (See e.g. Health and Saf. Code, §§ 11353.1, subd. (b); 11353.4. subd. (c); 11353.6, subd. (e).) Moreover, in Blakely, supra, 542 U.S. 296, the United States Supreme Court acknowledged that a defendant could waive his Sixth Amendment right and consent to judicial fact-finding either as part of a plea-agreement or as part of a bifurcated trial (Id., at p. 310.) As a practical matter, this procedure is often utilized in California courtrooms. For example, although a defendant has a statutory right to a trial by jury on his prior convictions (Pen. Code, § 1025; People v. Kelii (1999) 21 Cal.4th 452), defendants often waive that right or admit the priors. Finally, it should also be noted that most criminal proceedings are resolved by plea. Therefore, while jury trial on aggravating factors would SB 1202 Page 11 impact the judicial system, not all cases would result in these trials. 5)Solutions from Other States: Several other states have faced the same sentencing dilemma as California. Washington was in the very same position as California in that Washington had its sentencing structure ruled unconstitutional. (Blakely, supra, 542 U.S. at pp. 305-306.) In response, the Washington Legislature created a bifurcated trial process in which a jury would decide certain aggravating factors after the jury had found the defendant guilty. (Cunningham, supra, 549 U.S. at 294, fn. 17.) In addition to Washington, several other states have adopted a bifurcated trial model: Alaska, Arizona, Kansas, Minnesota, North Carolina, Oregon and Colorado. (Ibid.; see also Stemen & Wilhelm, Finding the Jury: State Legislative Responses to Blakely v. Washington, 18 Fed. Sentencing Rptr. 7 (Oct. 2005) (majority of affected states have retained determinate sentencing systems).) 6)Argument in Support: According to the California Attorneys for Criminal Justice, the sponsor of this bill, "Current law allows for a judge to choose one of three possible terms when a judgment is imposed: lower, middle, and upper. Until 2007, California required the granting of the middle term unless there are factors of aggravation or mitigation to enhance or reduce the punishment of a crime. "However, the U.S. Supreme Court, in Cunningham v. California, 59 U.S. 270 (2007), ruled the California statute unconstitutional because it failed to provide the right of a jury to determine whether the aggravating factors were true beyond a reasonable doubt. As it was amended, the California statute essentially eliminates a person's right to confront the witnesses against them by allowing the judge to unilaterally impose an upper term, without a finding of aggravating facts. "SB 1202 would rectify this elimination of this essential right SB 1202 Page 12 at trial. This bill prevents a judge from unilaterally imposing an extended prison sentence based on the facts that a jury never sees or finds to be true. The goal of this bill still requires people who break the law to be accountable; nonetheless, the decision to impose a maximum sentence to a person's term should be determined by the jury or an independent factfinder and not the judge unilaterally. Since 2007, individuals entering prison each year with upper term sentences have increased from 15% to 22%, which is a 30% rate increase. "The United States Supreme Court, in Cunningham, endorsed the SB 1202 approach as constitutionally valid and protective of proportional sentencing. The Cunningham court stated, '[s]everal States have modified their systems in the wake of Apprendi and Blakely to retain determinate sentencing, by calling upon the jury to find any fact necessary to the imposition of an elevated sentence.' Id at 280. "SB 1202 will also shift our criminal justice system from reacting to challenges and obstacles to taking a proactive approach. Following our court-ordered mandate to reduce the state prison population, California has reacted with several large criminal justice reforms - realignment, three-strikes reform, and Proposition 47. Rather than scramble to correct previous misguided policies on the back-end of the system, California should move towards addressing these issues on the front-end. By ensuring that aggravating factors be plead and proven, this will safeguard unjust and extended prison sentences." 7)Argument in Opposition: According to the San Diego County District Attorney's Office, "Under current law, selection of the lower, middle, or upper term in determining a felony custodial sentence is vested within the court's sound discretion. This procedure has been in place since 2007, when the Legislature approved and the Governor signed SB 40 (Romero) to address the United States Supreme Court's decision in Cunningham v. California (2007) 549 U.S. 270. This SB 1202 Page 13 procedure has been reaffirmed by the Legislature five times since SB 40 was approved. Changing course now makes little sense. "There are protections against arbitrary selection of the upper term. The court must state its reasons for selecting a term on the record. The court may not use an element of the offense to justify the upper term nor may it use the fact of any enhancement upon which a sentence is imposed to justify the upper term. "Requiring the People to plead and prove aggravating facts supporting an upper term, and bifurcated trials would unduly prolong trials and burden already stressed judicial, prosecutorial, defense and law enforcement resources. Extensive new jury instructions and Rules of Court would also have to be drafted. "Many aggravated factors are ill-suited to jury determination and have traditionally been entrusted to the sound discretion of the sentencing judge. Indeed, requiring aggravating factors to be pleaded by the People and found true by a jury could result in the presumably unintended outcome that the upper term might be imposed more frequently." 8)Related Legislation: a) SB 1016 (Monning) extends the sunset date from January 1, 2017 to January 1, 2022 for provisions of law which provide that the court shall, in its discretion, impose the term or enhancement that best serves the interest of justice. SB 1016 is pending in the Assembly Appropriations Committee. b) AB 2513 (Williams) allows the court to consider for purposes of determining the sentence on a human trafficking conviction that the defendant recruited or enticed the victim from a shelter or foster placement if this fact is found true by the trier of fact. AB 2513 is pending in the SB 1202 Page 14 Senate Public Safety Committee. 9)Prior Legislation: a) AB 765 (Ammiano), of the 2013-14 Legislative Session, would have prohibited imposition of the upper term of imprisonment unless aggravating factors are found to be true by the finder of fact. AB 765 was held on the Assembly Appropriations suspense file. b) AB 520 (Ammiano), of the 2011-12 Legislative Session, would have prohibited imposition of the upper term of imprisonment unless aggravating factors are found to be true by the finder of fact. AB 520 was amended to a different subject matter. c) SB 40 (Romero), Chapter 3, Statutes of 2007, amended California's DSL to eliminate the presumption for the middle term and to state that where a court may impose a lower, middle or upper term in sentencing a defendant, the choice of appropriate term shall be left to the discretion of the court. REGISTERED SUPPORT / OPPOSITION: Support California Attorneys for Criminal Justice (Sponsor) American Civil Liberties Union of California SB 1202 Page 15 California Catholic Conference California Public Defenders Association Drug Policy Alliance Friends Committee on Legislation of California Legal Services for Prisoners with Children Opposition California District Attorneys Association California State Sheriffs' Association Judicial Council of California Los Angeles County District Attorney San Diego County District Attorney Analysis Prepared by:Sandy Uribe / PUB. S. / (916) 319-3744