BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1202


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          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  








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            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  








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            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).)








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          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.









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          "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  








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            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,  








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            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  








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            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)  








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            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  








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            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  








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            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  








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            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  








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            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  








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               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








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          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