Existing law, until January 1, 2017, specifies, when a judgment of imprisonment is to be imposed and the statute specifies 3 possible terms, that the choice of the appropriate term shall rest within the sound discretion of the court. Existing law, on and after January 1, 2017, requires, in that situation, the court to order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. Existing law also requires the court to set forth on the record the facts and reasons for imposing the upper or lower term and the reason for its sentencing choice. Existing law prohibits the court from imposing an upper term based upon the fact of any enhancement upon which sentence is imposed.

This bill would also prohibit the court from imposing an upper term based upon aggravating facts unless those facts are presented to, and found to be true by, the factfinder. The bill would require the court to specify on the record the specific facts in aggravation, if any, the court relied upon to impose an upper term. The bill would also prohibit a fact pled pleaded in the indictment, information, or accusatory pleading in aggravation of sentence from being used as an aggravating factor in sentencing unless that fact has been proven to the trier of fact or admitted by the defendant. The bill would also require the bifurcation of the trial of all facts pled pleaded in aggravation of sentence, as specified. By increasing the duties of local prosecutors with regards to presenting and proving aggravating facts, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, until January 1, 2017, specifies, when a judgment of imprisonment is to be imposed and the statute specifies 3 possible terms, that the choice of the appropriate term shall rest within the sound discretion of the court. Existing law, on and after January 1, 2017, requires, in that situation, the court to order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. Existing law also requires the court to set forth on the record the facts and reasons for imposing the upper or lower term and the reason for its sentencing choice. Existing law prohibits the court from imposing an upper term based upon the fact of any enhancement upon which sentence is imposed.

This bill would also prohibit the court from imposing an upper term based upon aggravating facts unless those facts are presented to, and found to be true by, the factfinder. The bill would require the court to specify on the record the specific facts in aggravation, if any, the court relied upon to impose an upper term. The bill would also prohibit a fact pled in the indictment, information, or accusatory pleading in aggravation of sentence from being used as an aggravating factor in sentencing unless that fact has been proven to the trier of fact or admitted by the defendant. The bill would also require the bifurcation of the trial of all facts pled in aggravation of sentence, as specified. By increasing the duties of local prosecutors with regards to presenting and proving aggravating facts, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, until January 1, 2017, specifies, when a judgment of imprisonment is to be imposed and the statute specifies 3 possible terms, that the choice of the appropriate term shall rest within the sound discretion of the court. Existing law, on and after January 1, 2017, requires, in that situation, the court to order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. Existing law also requires the court to set forth on the record the facts and reasons for imposing the upper or lower term and the reason for its sentencing choice. Existing law prohibits the court from imposing an upper term based upon the fact of any enhancement upon which sentence is imposed.

This bill would also prohibit the court from imposing an upper term based upon aggravating facts unless those facts are presented to, and found to be true by, the factfinder. The bill would require the court to specify on the record the specific facts in aggravation, if any, the court relied upon to impose an upper term. By increasing the duties of local prosecutors with regards to presenting and proving aggravating facts, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Date of Hearing: August 3, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 1202

Author:(Leno) – As Amended Ver:May 31, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill 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. And provides that trial of all facts pled in aggravation of sentence must be bifurcated. During trial of the underlying charges and any enhancement, the jury must 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.

FISCAL EFFECT:

1. Potentially major increase in ongoing costs to the state trial courts in the millions of dollars (General Fund/Trial Court Trust Fund) annually to plead and prove aggravating facts in bifurcated trials. To the extent 25 percent to 50 percent of an estimated 5,000 felony trials involving a fact alleged in aggravation takes an average of one court day (8 hours), assuming an hourly court cost of $837, annual costs could range between $8.4 million to $16.7 million. To the extent the number and duration of bifurcated trials is greater or less than assumed above, actual costs would be adjusted accordingly. However, it should also be noted that most criminal proceedings are resolved by plea. Therefore, while jury trial on aggravating factors would impact the judicial system, not all cases would result in these trials.
2. Unquantifiable, but potentially significant increases or decreases in future state prison costs (General Fund) to the extent this measure results in longer or shorter prison terms than imposed under the existing determinate sentencing law. Even a minor change to resulting sentences drives significant costs or savings, given the large base of offenders and the significant unit cost ($29,000 per year) to incarcerate an offender.
3. Potentially significant increases or decreases in local jail costs (Local Funds) to the extent this measure results in longer or shorter felony jail terms as a result of bifurcated trials.

COMMENTS:

1. Background and Purpose. Current law, set to sunset on January 1, 2017, 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. SB 1016 (Monning) currently on this Committee’s Suspense file, extends the sunset date from January 1, 2017, to January 1, 2022, for these 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 1202 also 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 (Romero), Chapter 7, Statutes of 2007, with a sunset provision, has been extended multiple times since 2007.

The author states, "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 the 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."

1. Support. According to the California Attorneys for Criminal Justice, the sponsor of this bill, “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.”
2. Opposition. According to the San Diego County District Attorney's Office, "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. [Also,] 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."
   

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing: June 28, 2016

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1202

Author:(Leno) – As Amended Ver: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 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 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).)
   
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.
   
   "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 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, 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.)

1. 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 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) 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 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.

1. 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 impact the judicial system, not all cases would result in these trials.

1. 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).)
   
2. 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 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."
   
3. 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 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."
   
4. Related Legislation:
   
   1. 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.
      
   2. 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 Senate Public Safety Committee.
      
5. Prior Legislation:
   
   1. 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.
      
   2. 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.
      
   3. 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
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

 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 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:
   1. 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.
   2. 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.)
5. Provides the following in applicable court rules:
   1. 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.
   2. 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.
   3. 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.
   4. A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term.
   5. 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.)
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.
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.4^th 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.4^th 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.
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 "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. 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 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

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: 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: (Verified 5/31/16)

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

OPPOSITION: (Verified 5/31/16)

California District Attorneys Association
California State Sheriffs’ Association

Prepared by: Jerome McGuire / PUB. S. /

5/31/16 21:42:47

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

SB 1202 (Leno) - Sentencing

Bill Summary:

SB 1202 would provide that aggravating facts relied upon by the court to impose an upper term sentence or enhancement must be presented to the jury and found to be true beyond a reasonable doubt. This bill requires the trial of all facts pled in aggravation of sentence to be bifurcated, as specified.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 27, 2016

Fiscal Impact:

• Bifurcated trials: Potentially major increase in ongoing costs to the state trial courts in the millions of dollars (General Fund*) annually to plead and prove aggravating facts in bifurcated trials. To the extent 25 percent to 50 percent of an estimated 5,000 felony trials involving a fact alleged in aggravation takes an average of one court day (8 hours), assuming an hourly court cost of $837, annual costs could range between $8.4 million to $16.7 million. To the extent the number and duration of bifurcated trials is greater or less than assumed above, actual costs would be adjusted accordingly.
• State prisons: Unquantifiable, but potentially significant increases or decreases in future state prison costs (General Fund) to the extent this measure results in longer or shorter prison terms than imposed under the existing determinate sentencing law. Even a minor change to resulting sentences drives significant costs or savings, given the large base of offenders and the significant unit cost to incarcerate an offender.
• County jails: Potentially significant increases or decreases in local jail costs (Local Funds) to the extent this measure results in longer or shorter felony jail terms as a result of bifurcated trials.

*Trial Court Trust Fund

Author Amendments:

Make technical, non-substantive changes including the replacement of the word “pled” with “pleaded”.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

SB 1202 (Leno) - Sentencing

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 1202 would provide that aggravating facts relied upon by the court to impose an upper term sentence or enhancement must be presented to the jury and found to be true beyond a reasonable doubt. This bill requires the trial of all facts pled in aggravation of sentence to be bifurcated, as specified.

Fiscal Impact:

• Bifurcated trials: Potentially major increase in ongoing costs to the state trial courts in the millions of dollars (General Fund*) annually to plead and prove aggravating facts in bifurcated trials. To the extent 25 percent to 50 percent of an estimated 5,000 felony trials involving a fact alleged in aggravation takes an average of one court day (8 hours), assuming an hourly court cost of $837, annual costs could range between $8.4 million to $16.7 million. To the extent the number and duration of bifurcated trials is greater or less than assumed above, actual costs would be adjusted accordingly.
• State prisons: Unquantifiable, but potentially significant increases or decreases in future state prison costs (General Fund) to the extent this measure results in longer or shorter prison terms than imposed under the existing determinate sentencing law. Even a minor change to resulting sentences drives significant costs or savings, given the large base of offenders and the significant unit cost to incarcerate an offender.
• County jails: Potentially significant increases or decreases in local jail costs (Local Funds) to the extent this measure results in longer or shorter felony jail terms as a result of bifurcated trials.

*Trial Court Trust Fund

Background:

California’s existing sentencing procedures were initially established by SB 40 (Romero) Chapter 3/2007 and SB 150 (Wright) Chapter 171/2009, that sought to conform the state’s determinate sentencing laws to the findings in Cunningham v. California (2007) 549 U.S. 270. The Cunningham decision found a portion of California’s determinate sentencing laws unconstitutional on the grounds that they violated an individual’s right to a jury trial.

The former version of the state's basic determinate sentencing statute provided that, for crimes punishable by three possible terms, the court had to impose the middle term of imprisonment unless it found circumstances in aggravation or mitigation. If the court found that there were aggravating or mitigating circumstances, it could impose an upper or lower term.

However, in 2007, the U.S. Supreme Court held upper term sentencing, under California's determinate sentencing law, invalid under the Sixth Amendment. In Apprendi v. New Jersey (2000) 530 U.S. 466, the U.S. Supreme Court held that the constitutional right to a jury trial proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. The U.S. Supreme Court clarified in Blakely v. Washington (2004) 542 U.S. 296, that in order to comport with the Sixth Amendment, any fact (other than a prior conviction) that exposes a defendant to a sentence beyond the relevant statutory maximum must be found by a jury beyond a reasonable doubt or admitted by the defendant.

Subsequently, in the Cunningham decision, the U.S. Supreme Court held that California's determinate sentencing law violated Blakely because the middle term was the statutory maximum for the crime, but the law allowed the court to impose the upper term based on circumstances in aggravation found by the court by a preponderance of the evidence. The Court suggested this problem could be corrected by either providing a jury trial on the sentencing issue or by providing judicial discretion to impose the higher term without additional findings of fact.

In light of Cunningham, the Legislature chose the latter, and enacted SB 40 (Romero) to fix the constitutional defect inherent in the statute with regard to the term imposed for the crime. Accordingly, under current law, the court is afforded discretion to choose the appropriate term, based on the interests of justice, from the three-term range provided as punishment for the offense. Since the middle term is no longer the presumptive term of imprisonment, the defendant has no right to a jury trial, with proof beyond a reasonable doubt, on circumstances in aggravation that would support the imposition of the upper term.

This bill would provide for the second option suggested by the Court, and would require a jury to find aggravating facts to be true.

Proposed Law:

This bill would revise the state’s three-tier determinate sentencing law by prohibiting imposition of the upper term of imprisonment unless aggravating facts are presented and found to be true by a jury in bifurcated trials. Specifically, this bill:

• Makes a legislative declaration that, to ensure proportionality in sentencing, upper terms should be reserved for individual cases in which aggravating facts exist and have been proven to be true.
• Provides the court shall not impose an upper term based on aggravating facts unless the facts were presented to a jury and the jury found the facts to be true.
• Requires the court to state on the record at the time of sentencing the specific facts in aggravation relied upon to impose an upper term.
• Provides that a fact pled in the indictment, information, or accusatory pleading in aggravation of sentence cannot be used as an aggravating factor in sentencing unless that fact has been proven to the trier of fact or admitted by the defendant, except that, in the case of jury trial, prior convictions that have been pled as provided may be proven to the court to the same extent as they were permitted to be proven to the court prior to January 1, 2017.
• Provides that whether to the jury or to the court, where permitted for prior convictions or if a jury is waived, the trial of all facts pled in aggravation of sentence shall be bifurcated. During the first phase, the jury shall not be informed of a fact alleged in aggravation of the sentence unless that fact is otherwise admissible and relevant to the merits of the criminal charge or enhancement and not excluded pursuant to Section 352 of the Evidence Code. The jury shall not be informed that a fact is alleged in aggravation of the sentence until the beginning of the second phase of the trial.

Related Legislation:

SB 1016 (Monning) 2016 would extend the sunset from January 1, 2017, to January 1, 2022, on specified basic sentencing provisions on the factors a court shall consider and the procedure the court shall follow in choosing to impose a lower, middle or upper term. SB 1016 is pending on the Suspense File of this Committee.

Prior Legislation: AB 765 (Ammiano) 2013 would have prohibited imposition of the upper term of imprisonment unless aggravating facts were found to be true by a jury. This bill was held on the Suspense File of the Assembly Appropriations Committee.

Staff Comments:

While over 200,000 felony cases are disposed of by the judicial system each year, only a small percentage move to trial. The most recent information available reflects data for Fiscal Year (FY) 2013-14 from the 2015 Annual Court Statistics Report, which indicates 6,630 cases, or 2.6 percent of felony dispositions went to trial. To the extent the effects of Proposition 47 (2014) are not fully reflected in the available data for FY 2013-14, the number of felony trials prospectively may, or may not, decrease. Assuming a 25 percent decline in the number of felony trials would reduce the number of felony trials to approximately 5,000 annually.

The percentage of felony trials that will require bifurcation is unknown. To provide a general sense of costs, to the extent 25 percent to 50 percent of felony trials require bifurcation, annual costs would range from $8.4 million to $16.7 million, utilizing the hourly court cost of $837 and assuming an additional day of court time (8 hours) would be required. Given the numerous factors that cannot be known with certainty (including the number of future felony trials each year, the number of felony trials requiring bifurcation, and the potential duration of the bifurcated trials), costs could be substantially higher or lower.

Likewise, the fiscal impact resulting from changes to the terms of incarceration in state prisons and local jails is unquantifiable but potentially in the millions of dollars given the number of defendants impacted and the significant unit costs to incarcerate these individuals. Any costs or cost savings cannot be determined with certainty. For example, data from the CDCR report on upper term sentencing reflects over 8,000 inmates flagged for imposition of an upper term sentence in 2014 (21.5 percent of determinate sentences). While a simple calculation of a one percent increase or decrease to reported upper term sentences would seem to indicate a cost or savings of over $2.3 million in any one year, the actual impact to sentencing costs would require a much more extensive review of each defendant’s case. The upper term data is not of such detail to reflect, for example, those defendants who potentially had a prior strike allegation dismissed (that would have doubled the defendant’s sentence) by the court in order to impose an upper term, which could have the practical effect of imposing a shorter overall sentence than a doubled middle or lower term. Additionally, a court could impose the upper term and choose not to impose an enhancement, which would result in a longer overall sentence. As a result, an inmate sentenced to an upper term under existing determinate sentencing law could potentially receive a longer term under the proposed sentencing structure proposed by this measure.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: SB 1202 Hearing Date: April 12, 2016

Subject: Sentencing

HISTORY

Source: California Attorneys for Criminal Justice

Prior Legislation: AB 765 (Ammiano) died in Assembly Appropriations

SB 463 (Pavley) – Ch. 598 Stats. 2013

SB 576 (Calderon) – Ch. 361, Stats. 2011

AB 2263 (Yamada) – Ch. 256, Stats. 2010

SB 150 (Wright) – Ch. 171, Stats. 2009

SB 1701 (Romero) – Ch. 416, Stats. 2008

SB 1342 (Cogdill) – died in Senate Public Safety; 2008

SB 40 (Romero) – Ch. 3, Stats. 2007

Support: California Catholic Conference, Inc; California Public Defenders Association; Friends Committee on Legislation of California

Opposition: California District Attorneys Association; California State Sheriffs’ Association

PURPOSE

The purpose of this bill is to provide 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.

Existing law 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).)

Existing law 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).)

Existing law 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).)

Existing law provides that the Judicial Council shall seek to promote uniformity in sentencing under Section 1170, by:

• 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.
• 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.)

Existing California Rules of Court, provide that:

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

Existing U.S. Supreme Court decisional law establishes that California’s determinate sentencing law prior to the enactment of SB 40 (Romero) in 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.)

Existing U.S. Supreme Court decisional law established that to adjust California’s sentencing law to make it conform to Constitutional requirements, 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.)

Existing law amended Penal Code sections 1170 and 1170.3, 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 40 (Romero) – Ch. 3, Stats. 2007.)

Existing law includes the following uncodified legislative findings that were adopted as part of SB 40 (2007): “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.

Existing law amending Penal Code sections 1170 and 1170.3 (SB 40) also included a “sunset” provision, declaring that its provisions would remain in effect only until January 1, 2009, unless a later enacted statute, that is enacted before that date, deletes or extends that date. Subsequent legislation has extended that sunset date and these provisions will currently remain in effect until January 1, 2017. (SB 463 (Pavley) Ch. 598 Stats. 2013.)

Existing law 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 150 (Wright), Ch. 171, Stats. 2009; Penal Code §§ 186.22, 186.33, 12021.5, 12022.2, 12022.3, 12022.4.) SB 150 also included a “sunset” provision, declaring that its provisions would remain in effect only until January 1, 2011, unless a later enacted statute deletes or extends that date. The sunset date on enhancement triads has also been extended to January 1, 2017. (SB 463 (Pavley) Ch. 598 Stats. 2013.)

Existing law 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.)

Existing decisional law grants a court discretion to “bifurcate” trial of prior conviction allegations used to enhance a defendant’s sentence, such that trial of the prior conviction allegations is only held after the jury has convicted the defendant on the underlying criminal charges. (People v. Calderon (1994) 9 Cal.4^th 69, 72-79.)

Existing decisional law provides that neither the defendant not the prosecution has a right to “unitary” trial on the prior conviction allegations conducted before the jury in conjunction with the underlying criminal charges. (Id., at p. 72; People v. Cline (1998) 60 Cal.App.4^th 1327, 1332-1335.)^[1]

Existing provision of the California Constitution provide that prior convictions can be used without limitation for impeachment or enhancement of sentence. “When a prior felony conviction is an element of any offense, it shall be proven to the jury in open court.” (Cal. Const., Art. I, § 28 (d).)

This bill 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.

This bill:

• 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.
• 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.
• 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.

This bill 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

This bill 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.

This bill 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.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;
• 141.5% of design bed capacity by February 28, 2015; and,
• 137.5% of design bed capacity by February 28, 2016.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

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 "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.

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 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 Holding in Cunningham v. California: California’s Determinate Sentencing Law was Unconstitutional

California’s determinate sentencing law (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, 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. 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. The relevant facts are included in the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any further evidence introduced at the sentencing hearing. Selection of the lower term is justified only if, considering the same facts, the circumstances in mitigation outweigh the circumstances in aggravation.”

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.) The Supreme Court clarified this principle in Blakely v. Washington as follows: “The relevant statutory maximum, is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Blakely, supra, 542 U.S., at 303-304, emphasis in original.) The United States Supreme Court has recently extended Apprendi to clarify that it applies to any fact that authorizes imposition of a sentence in excess of the statutory minimum or maximum. (Alleyne v. United States (2013) 186 L.Ed.2nd 314

In finding that California’s DSL, prior to SB 40, violated the right to a trial by jury, as defined under Apprendi, the Supreme Court stated, “California’s DSL, and the rules governing its application, 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, in order to impose the upper term, 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 as opposed to the higher standard of beyond a reasonable doubt, the DSL did exactly what was forbidden under Apprendi, namely, it “allow[ed] 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.” (Apprendi, supra, 530 U.S. 466.) “This 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. 270, 281.)

3. SB 40 (2007) Amended California’s DSL to Satisfy Constitutional Requirements

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. 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 v. California, supra, 549 U.S. 270, 293-294, citations and footnotes omitted.)

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.

4. Sentence Enhancements Containing Three Possible Terms

Most sentence enhancements provide for a single term of years. (See e.g., Pen. Code § 667, subd. (a) – 5 years for each prior serious felony conviction.) Some sentence enhancements, however, like the term for the underlying conviction, provide that the court must select one of three possible terms, a lower, middle or upper term. (See e.g. Pen. Code § 12022.5, subd. (a), imposing a sentence enhancement of 3, 4 or 10 years for personally using a firearm in the commission of a felony.)

Penal Code Section 1170.1, subdivision (b), instructs sentencing judges how to impose sentence enhancements where there is a choice of terms, “If an enhancement is punishable by one of three terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation, and state the reasons for its sentencing choice, other than the middle term, on the record at the time of sentencing.” Although in Cunningham, the Court found that sentence enhancements, per se, in California, did not violate the right to have a jury decide all facts that could increase the sentence, the Court did not address the specific issue of those enhancements that carry a choice of terms. (See Cunningham v. California, supra, 549 U.S. 270.)

After the enactment of SB 40, the California Court of Appeal found that section 1170.1 “suffers from the identical constitutional infirmities identified by the United States Supreme Court in Cunningham … and is similarly unconstitutional. The Legislature has taken no step to amend this provision to render it compliant with the Sixth Amendment . . .” (People v. Lincoln (2007) 157 Cal. App. 4th 196, 205. The enactment of SB 150 (Wright), Ch. 171, Stats. of 2009, did just that. SB 150 applied the same “fix” to sentence enhancement triads that SB 40 applied to the base term triads: It authorized the court to impose any of the three terms without making any additional factual findings. This approach was expressly approved by the California Supreme Court in People v. Sandoval (2007 41 Cal.4th 825, 844-845 (2007).) The changes to the rules concerning imposition of an enhancement from a choice of three terms were also extended until January 1, 2017 in SB 463 (Pavley), Ch. 598, in 2013.

5. The Trial Court need not formally find a Specific Fact to Impose an Upper Term, but there are Limits on a Court’s Authority to Impose an Upper Term

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 specific 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 on appeal that there was insufficient evidence of the aggravating fact, while now a defendant must establish that the court abused its discretion in relying on a particular reason to impose an upper term. However, as a practical matter, a court seldom had difficulty finding a fact to impose the upper term prior to the decision in Cunningham. Nevertheless, regardless of whether an upper term is supported by a finding of fact or imposed through the sound discretion of the court, the aggravating factor or reason supporting an upper term must reflect that the defendant’s crime is distinctly worse than the average conviction for that same crime. (People v. Black (2007) 41 Cal.4^th 799, 817; 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).) For example, if a defendant is convicted of burglary and the prosecutor proved an enhancement allegation that the defendant used a firearm, the court can impose an enhancement for the firearm, but it cannot rely on the use of a firearm to impose the upper term. The court can rely on firearm use to impose an upper term, but the court cannot impose punishment for the enhancement. This rule is part of broader prohibition on the “dual use” of the same fact to impose more than one punishment.

6. Prejudice Issues and Concerns Raised by Trying Aggravating Factors That are not Elements of a Crime to the Jury

The most common aggravating factors concern a defendant’s criminal record, including prior convictions, poor performance on parole or probation and arrests. To avoid the prohibition on the dual use of a fact to impose more than one punishment, one prior conviction can be alleged as the basis of a one-year enhancement for a prior prison or felony jail term and a separate conviction can be the basis of an upper term.

The 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. This evidence is not inadmissible because it is irrelevant. Rather, such evidence is immensely powerful. Jurors hearing evidence of a defendant’s criminal record - especially crimes similar to the one charged offense – are highly likely to convict because the defendant is a bad person prone to commit crimes, not because the evidence in the charged offense establishes his or her guilt beyond a reasonable doubt. (People v. Thompson (1988) 45 Cal.3d 86, 109; People v. Thompson (1980) 27 Cal.3d 303, 318.)

Proof of aggravating factors to the jury would involve numerous other matters than prior convictions. These could include prior juvenile adjudications, arrests, poor performance on parole, conduct in prison, failure to show remorse, failure to pay fines or restitution, a veritable Pandora’s Box of highly prejudicial matter that would otherwise be grounds for a mistrial if admitted into evidence.

To address this issue, this bill was recently amended to require 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. These would include prior convictions to establish an enhancement for a prior prison term and qualifying Three Strike convictions. Prior convictions that are elements of an offense - prior felony conviction in a trial for possession of a gun by a convicted felon for example - must be tried to the jury. (Cal. Const. Art. I § 28 (f).) Nevertheless, the defendant can avoid the prejudicial effect of the jury learning the nature of his or her prior conviction by admitting the prior conviction so that the jury learns only that the defendant has been convicted of a felony.

7. Rates of Upper Term Sentences since 2006

Concerns were raised that SB 40 (Romero) in 2007 would result in a substantial increase in upper term sentences. SB 40 went into effect on March 31, 2007. However, any analysis of upper term sentencing practices must be divided into two distinct periods - the years prior to implementation of realignment and the years after realignment was enacted . Inmates committed prior to realignment are a substantially different and more diverse population than inmates committed after realignment. After realignment, only defendants with prior or current serious felony convictions or who were required to register as sex offenders were sent to prison. These inmates generally had much longer and more serious criminal records than those sentenced to felony county jail terms. They include many defendants sentenced for gang crimes. One significant exception to that rule is drug commerce offenders with enhancements for prior convictions and for cases that involved exceptionally large amounts of drugs. These inmates often have relatively long criminal records and can be sentenced to relatively long terms in comparison to other felony jail inmates.

The charts below are split into separate tables for pre and post-realignment sentences for men and for women.

• Upper Term Sentences from 2006-2010 – the Year Prior to SB 40 until Enactment of Criminal Justice Realignment

Year Total Commitments Upper Terms

• Upper Term Sentences for Men after Enactment of Realignment

Year Total Commitments Upper Terms

• Upper Term Sentences for Women from the year prior to SB 40 until Realignment

Year Total Commitments Upper Terms

• Upper Term Sentences for Women from Realignment through 2014

It is difficult to draw conclusions about whether courts have changed sentencing patterns in imposing upper terms from this data. As noted above, after the October 1, 2011 effective date of Criminal Justice Realignment, only defendants with current or prior serious felony convictions, or those required to register as sex offenders, were sentenced to prison.^[2] Inmates with less serious criminal histories and convicted of less serious crimes served executed felony sentences in county jails.

This data also does not reveal if average sentence lengths have increased over this time. Increases in the proportion of upper term sentences do not necessarily mean that average sentence lengths have increased. As a practical matter, virtually all defendants who must serve their sentences in prison are subject to at least two-strike sentences under the Three Strikes law. A two strike sentence requires the court to double the sentence otherwise imposed. The court, however, can strike or dismiss the prior strike allegation and impose an upper term, imposing a shorter sentence than without a doubled middle or lower term. Courts usually have a wide range of sentencing choices available to them. A reason to impose an upper term sentence cannot be used to impose an enhancement. A court could impose the upper term and strike (choose not to impose) an enhancement with a longer term than the increase from the middle term to the upper term.

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1. Defendants typically request bifurcation of prior conviction allegations. Prosecutors have requested bifurcation in some Three Strikes cases – particularly before Three Strikes reform in 2012 - to prevent jurors from acquitting the defendant to spare him or her from a life term for a relatively minor felony. (Cline at p. 1332-1336.) ↑

2. Defendants convicted under Penal Code Section 186.11 of white collar fraud in which the amount taken by the defendant or lost by the victim exceeded $100,000 also serve sentences in prison. Such defendants would be a particularly small proportion of the prison population. (Pen. Code § 1170, subd. (h)(3) ↑