Existing law authorizes courts generally to suspend a criminal sentence and make and enforce terms of probation for a period not to exceed 2 years, except as specified. Existing law authorizes courts in misdemeanor cases to suspend a sentence and make and enforce terms of probation for a period not to exceed one year, except as specified. Under existing law, a prisoner can reduce their term of imprisonment by earning credit for, among other things, continuous incarceration, good behavior, and participation in approved rehabilitative programming.

This bill would make a person who is prohibited from owning a firearm due to prior convictions who commits a felony involving the use of a firearm, or a person who is convicted of two crimes against a person, and who commits a third crime against a person, within three years, while armed with a firearm or while using a firearm subject to various conditions, including, among others, requiring that the person be detained, booked, and held in custody until arraignment, requiring the sentencing court to afford great weight to those facts when determining what term to impose, requiring treatment, rehabilitation, or education programs to be completed before the person can receive good conduct credits, and, if probation is granted, requiring it to be for a duration of 5 years. By imposing additional duties on local prosecutors and law enforcement, 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law authorizes courts generally to suspend a criminal sentence and make and enforce terms of probation for a period not to exceed 2 years, except as specified. Existing law authorizes courts in misdemeanor cases to suspend a sentence and make and enforce terms of probation for a period not to exceed one year, except as specified. Under existing law, a prisoner can reduce their term of imprisonment by earning credit for, among other things, continuous incarceration, good behavior, and participation in approved rehabilitative programming.

This bill would make a person who is prohibited from owning a firearm due to prior convictions who commits a felony involving the use of a firearm, or a person who is convicted of two crimes against a person, and who commits a third crime against a person, within three years, subject to various conditions, including, among others, requiring that the person be detained, booked, and held in custody until arraignment, requiring treatment, rehabilitation, or education programs to be completed before the person can receive good conduct credits, and, if probation is granted, requiring it to be for a duration of 5 years. By imposing additional duties on local prosecutors and law enforcement, 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Date of Hearing: May 8, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2788

Author:(Low) – As Amended Ver:April 16, 2024

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

SUMMARY:

This bill permits a court to impose a higher sentence than under existing law for a defendant subject to a firearms prohibition who is charged with a felony or attempted felony. For such defendants, this bill also requires an increased probation period and a higher level of supervision, requires the court to order completion of specified programming before the California Department of Corrections and Rehabilitation (CDCR) may award certain credits, and prohibits the court from dismissing the bill’s required punishments in the interest of justice.

Specifically, this bill:

1. States a defendant charged with a felony or an attempted felony wherein the person was armed with a firearm regardless of the elements of a crime, and was otherwise prohibited from possessing a firearm, as specified, shall be subject to the following:
2. Notwithstanding existing law related to determinate sentencing, a court shall consider and afford great weight to the fact that the defendant was armed or used a firearm while prohibited from possessing a firearm in determining whether it imposes the upper term on the felony or attempted felony.
3. Notwithstanding existing law pertaining to determinate sentencing, a court may use the fact that the defendant was armed or used a firearm while prohibited from possessing a firearm in determining whether to impose the upper term.
4. Notwithstanding existing law imposing probation, as specified, the duration of probation shall be five years.
5. The courts shall mandate treatment, rehabilitation, or education programs to be completed during incarceration, the successful completion of which shall be required before good conduct credits are awarded.
6. Probation granted to the person shall place the person on the maximum level of regular supervision.
7. States this sentencing requirement shall not be considered an enhancement for purposes of existing law related to the dismissal of enhancements in the interest of justice.

FISCAL EFFECT:

1. Costs (General Fund) to CDCR to incarcerate people for longer periods of time as a result of this bill. This bill allows a court to impose an upper prison term when doing so is not permitted under existing law, and prohibits CDCR from issuing good conduct credits to which an incarcerated person is entitled under existing law, unless the person completes court-ordered programming. Actual incarceration costs resulting from the sentencing provisions in this bill will depend on the number of affected defendants and the length of sentences imposed. The actual cost of the credit prohibition established by this bill will depend on the discretion of courts and individual incarcerated people, and whether self-help and educational programs ordered by the court are available to each affected incarcerated person. However, the impact of the credit provision of the bill will likely be significant since, generally, people incarcerated in prison are eligible for good conduct credits rates of 33.3% or 50% if they comply with prison rules and work assignments – people who are no longer eligible for those credits will serve substantially longer prison sentences.

The Legislative Analyst’s Office (LAO) estimates the average annual cost to incarcerate one person in state prison is $133,000. In the aggregate, this bill’s provisions will likely result in increased costs to CDCR in the tens of millions to hundreds of millions of dollars. If 20 defendants must each serve five additional years in prison due to this bill, the total incarceration cost due to this bill would be $13.3 million over five years. If 100 defendants must each serve five additional years, the cost due to this bill would be $66.5 million over five years.

1. Costs (local funds, General Fund) to county probation departments to supervise people on probation for longer periods of time and higher levels of supervision under this bill. As the number of people on probation in California has dropped, the number of county probation personnel has also declined. If five counties must each hire an additional probation officer to manage the increased probation workload resulting from this bill, at an average salary of $75,000, the resulting annual cost would be $375,000 plus benefits. It is not clear whether the county probation duties imposed by this bill constitute a reimbursable state mandate or may be subject to Proposition 30 (2012). Proposition 30 provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by realignment applies to local agencies only to the extent the state provides annual funding for the cost increase. Proposition 30 has not been litigated and its scope is unclear.

According to the LAO, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

COMMENTS:

1. Purpose. According to the author:

[O]n August 16, 2023, an individual with multiple prior offenses shot at two police officers in Santa Clara County after they were called to a domestic dispute… One of the two responding officers that day, was Assemblymember Low’s brother. Despite having multiple prior convictions the repeat offender was allowed to continue to commit crimes without any concern for human life…This legislation will serve to address such loopholes by imposing stricter penalties on those who violate firearm ownership prohibitions, thereby enhancing public safety and preventing further tragedies like the one suffered by the responding officer. This bill represents a crucial step towards safeguarding Californians from repeat criminal offenders.

1. Background. As described in detail above and in the analysis of this bill by the Assembly Committee on Public Safety, this bill makes several changes to existing sentencing law that will result in courts issuing longer sentences for affected defendants than are currently issued under existing law. The bill also conditions provision of good conduct credits upon an incarcerated person’s completion of court-ordered self-help and educational programs. It is not clear whether the Legislature may change CDCR’s constitutional authority to award credits absent a constitutional amendment. In 2016, voters passed Proposition 57, which, in pertinent part, amended the California Constitution to give CDCR authority to award credits for good behavior and approved rehabilitative and education achievements. Some courts have interpreted Proposition 57 as granting CDCR exclusive authority to make decisions about provision of sentencing credits.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 23, 2024

Counsel: Kimberly Horiuchi

ASSEMBLY COMMITTEE ON

Kevin McCarty, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Changes the requirement for imposing the upper term for sentencing specified defendants prohibited from owning a firearm, when there is evidence of use of a firearm in the commission of a new felony or attempted felony. Specifically, this bill:

1. States a defendant charged with a felony or an attempted felony wherein the person was armed with a firearm regardless of the elements of crime, and was otherwise prohibited from possessing a firearm, as specified, shall be subject to the following:
   
   1. Notwithstanding existing law related to determinate sentencing, a court shall consider and afford great weight to the fact that the defendant was armed or used a firearm while prohibited from possessing a firearm in determining whether it imposes the upper term on the felony or attempted felony.
      
   2. Notwithstanding existing law pertaining to determinate sentencing, a court may use the fact that the defendant was armed or used a firearm while prohibited from possessing a firearm in determining whether to impose the upper term.
      
   3. Notwithstanding existing law imposing probation, as specified, the duration of probation shall be five years.
      
   4. The courts shall mandate treatment, rehabilitation, or education programs to be completed during incarceration, the successful completion of which shall be required before good conduct credits are awarded.
      
   5. Probation granted to the person shall place the person on the maximum level of regular supervision.
      
2. States this sentencing requirement shall not be considered an enhancement for purposes of existing law related to the dismissal of enhancements in the interest of justice.
   
3. Defines the following terms:
   
   1. “Armed with a firearm” has the same meaning as that term is used in existing law related to committing a felony or attempted felony while armed with a firearm.
      
   2. “Use of a firearm” has the same meaning as existing law related to use of a machine gun or assault weapon in the commission of a felony or attempted felony.
      
   3. “Possessing” for purposes of this provision, includes owning purchasing, receiving, or having in possession or under custody or control of a firearm.

EXISTING LAW:

1. States a criminal defendant is entitled:
   
   1. To a speedy and public trial.
      
   2. To be allowed counsel as in civil actions, or to appear and defend in person and with counsel, except that in a capital case they shall be represented in court by counsel at all stages of the preliminary and trial proceedings.
      
   3. To produce witnesses on their behalf and to be confronted with the witnesses against them, in the presence of the court, except that:
      
      1. Hearsay evidence may be admitted to the extent that it is otherwise admissible in a criminal action under the law of this state.
      2. The deposition of a witness taken in the action may be read to the extent that it is otherwise admissible under the law of this state. (Pen. Code, 686.)
2. Authorizes a court, after holding a hearing and making findings, as specified, to order the removal of any spectator who is intimidating a witness. (Pen. Code, § 686.2, subd. (a).)
3. States in any case in which a person is arrested and released without trial or in which a person is arrested, tried, and acquitted, if such person is indigent and is released or acquitted at a place to which he has been transported by the arresting agency and which is more than 25 airline miles from the place of his arrest, the arresting agency shall, at their request, return or provide for return of such person to the place of their arrest. (Pen. Code, § 686.5.)
4. Prohibits any person from being subjected to a second prosecution for a public offense for which they have once been prosecuted and convicted or acquitted. (Pen. Code, § 687.)
5. States circumstances in aggravation include facts relating to the crime and facts relating to the defendant:
   
   1. Facts relating to the crime, whether or not charged or chargeable as enhancements, include the fact that:
      
      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;
          
      11. The defendant took advantage of a position of trust or confidence to commit the offense; and,
          
      12. The crime constitutes a hate crime under existing law; no hate crime enhancements listed in current law are imposed and the crime is not subject to sentencing under Penal Code Section 1170.8. (Rules of Court 4.421, subd. (a)).
          
   2. Facts relating to the defendant include the fact that:
      
      1. The defendant has engaged in violent conduct that indicates a serious danger to society;
         
      2. The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
         
      3. The defendant has served a prior prison term;
         
      4. The defendant was on probation or parole when the crime was committed;
         
      5. The defendant's prior performance on probation or parole was unsatisfactory; and,
         
      6. Any other facts statutorily declared to be circumstances in aggravation. (Rules of Court 4.421(b).)
6. States circumstances in mitigation include facts relating to the crime and facts relating to the defendant:
   
   1. Facts relating to the crime:
      
      1. The defendant was a passive participant or played a minor role in the crime;
         
      2. The victim was an initiator of, willing participant in, or aggressor or provoker of the incident;
         
      3. The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur;
         
      4. The defendant participated in the crime under circumstances of coercion or duress, the criminal conduct was partially excusable for some other reason not amounting to a defense;
         
      5. The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime;
         
      6. The defendant exercised caution to avoid harm to persons or damage to property, the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim;
         
      7. The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal;
         
      8. The defendant was motivated by a desire to provide necessities for his or her family or self; and,
         
      9. The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime; the victim of the crime, who inflicted the abuse, was the defendant's spouse, intimate cohabitant, or parent of the defendant's child; and the facts concerning the abuse do not amount to a defense. (Rules of Court 4.423(a).)
         
   2. Facts relating to the defendant:
      
      1. The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;
         
      2. The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;
         
      3. The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;
         
      4. The defendant is ineligible for probation and but for that ineligibility would have been granted probation;
         
      5. The defendant made restitution to the victim; and,
         
      6. The defendant's prior performance on probation or parole was satisfactory. (Rules of Court 4.423(b).)
         
7. Declares legislative intent that the purpose of imprisonment for crime is punishment. 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. The Legislature further finds and declares 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. (Penal Code Section 1170, subd. (a)(1).)
   
8. Provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided. (Pen. Code, 1170, subd. (b)(1).)
   
9. States the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. (Pen. Code, § 1170, sub. (b)(2).)
   
10. Provides that where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense. (Pen. Code, § 1170, subd. (b)(2).)
    
11. States for each for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from the prisoner’s period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp. (Pen. Code, § 4019, subd. (b).)
    
12. Requires that any person convicted of a nonviolent felony offense and sentenced to state prison be eligible for parole consideration after completing the full term for their primary offense. (Cal. Const. Art. 1, § 32, subd. (a)(1).)
    
13. Defines “full term for the primary offense” as the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence. (Cal. Const. Art. 1, § 32, subd. (a)(1)(A).)
    
14. States the California Department of Corrections and Rehabilitation (“CDCR”) shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements. (Cal. Const. Art. 1, § 32, subd. (b).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author’s Statement: According to the author: “California has undertaken numerous public safety reforms in the past decade — including Proposition 57 in 2016 that allowed the early release of serious felons — in hopes of reducing the prison population, maintaining public safety, and improving persistently high recidivism rates. These reforms lowered incarceration levels, and in their aftermath, crime rates have fluctuated. Recidivism rates provide another important measurement of these public safety policy changes and the effectiveness of correctional interventions under these policy changes. Overall, recidivism rates have remained generally stable, hovering around 44-46% over the last decade.

While there have been a number of positive impacts actualized through these reforms, there remains a small group of repeat offenders that have continued to take advantage of early release opportunities and commit heinous crimes when entering back into society.

Then on August 16, 2023, an individual with multiple prior offenses shot at two police officers in Santa Clara County after they were called to a domestic dispute. One of the officers was hit and suffered a gunshot wound to the abdomen resulting in injuries to the intestine, colon, liver, gallbladder, ureter and a spinal fracture.

The repeat offender had an extensive previous criminal history including a recent assault with a deadly weapon and participating in criminal street gang activities. In addition, the record show the repeat offender was on felony probation for felony assault with force likely to cause great bodily injury and felony possession of a firearm. As such, this individual was prohibited from possessing a firearm.

One of the two responding officers that day, was Assemblymember Low’s brother. Despite having multiple prior convictions the repeat offender was allowed to continue to commit crimes without any concern for human life. Specifically, AB 2788 would make a person who is prohibited from owning a firearm due to prior convictions, and who commits a felony involving the use of a firearm subject to various conditions, including, among others, requiring that the person be detained, booked, and held in custody until arraignment, requiring treatment, rehabilitation, or education programs to be completed before the person can receive good conduct credits, and, if probation is granted, requiring it to be for a duration of 5 years.

The tragic incident in Santa Clara County on August 16, 2023, where a repeat offender with a lengthy criminal record severely injured a police officer, underscores the urgent need for legislative action. This legislation will serve to address such loopholes by imposing stricter penalties on those who violate firearm ownership prohibitions, thereby enhancing public safety and preventing further tragedies like the one suffered by the responding officer. This bill represents a crucial step towards safeguarding Californians from repeat criminal offenders.”

1. Existing Law for Felons in Possession of a Firearm: This bill seeks to impose additional penalties on a person who is armed with a firearm in the commission of a felony or attempted felony and who is otherwise prohibited from possessing a firearm.

Penal Code section 12022.53 punishes any person who commits a specified felony while using a firearm to an additional 10 year enhancement. (Pen. Code, § 12022.53, subd. (b).) Any person who discharges a firearm in the commission of specified felony shall be sentenced to additional 20 years. (Pen. Code, § 12022.53, subd. (c).) any defendant guilty of the crime referenced in the example specified in the author’s statement about a near fatal officer shooting in 2023, most certainly received a minimum of 25 years in state prison.

Any person who shoots at a peace officer is likely to be sentenced to a very lengthy term of imprisonment and would not be probation eligible. Attempted murder of a peace officer is considered attempted first degree murder – carrying a penalty of 25 years to life. (See Pen. Code, § 189, subd. (e); Pen. Code, § 189.1.) That is before a court adds any enhancements based on, for example, the defendant’s use of a firearm, and prior criminal history.

Any person who commits a specified felony involving the use of a firearm causing great bodily injury or death shall be sentenced to an additional term of 25 years to life. (Pen. Code, § 12022.53, subd. (d).) Specified felonies include sex offenses, kidnapping, assault with intent to commit a felony, and robbery, among others. (Pen. Code, § 12022.53, subd. (a)(1-18).) Any person who is just armed with a firearm during the commission of a felony rather than using a firearm to commit a felony may be sentenced to an additional consecutive year in state prison as an enhancement. (Pen. Code, § 12022, subd. (a)(1).) This bill would require consideration of the upper term in any offense where a person merely has a gun but did not use it in the commission of a felony.

More generally, any felon in possession of a firearm is guilty of a felony even where there is not an underlying violation of the law. If a person has been convicted of a felony, it is a per se felony if they intentionally possessed a firearm. (Pen. Code, § 29800, subd. (a)(1).) Moreover, Penal Code section 12022 provides an additional enhancement for any person convicted of specified drug crimes who personally uses a firearm of up to one year. (Pen. Code, § 12022, subd. (a)(1) and (c).)

Any person armed with an assault weapon who commits a specified drug crime may be sentenced to an additional three years in county jail. (Pen. Code, § 12022, subd. (a)(2).) If a person knows a co-conspirator or principle personally has a firearm in the commission of specified drug crimes, the defendant may be sentenced to one, two, or three years in county jail. (Pen. Code, § 12022, subd. (a)(2).) Any person who personally uses a firearm in the commission of a felony or attempted felony shall receive an additional one, two, or three years in state prison. (Pen. Code, § 12022, subd. (b).)

These firearms-related crimes are not subject to a penalty of county jail under the Realignment Act of 2011. (See Pen. Code, § 1170, subd. (h).). If a defendant is prohibited from possessing a firearm as a felon, and is convicted of possessing a firearm, the defendant may be sentenced to up to three years in state prison. These are serious crimes that the Legislature has already condemned in statute by adding lengthy prison sentences. There are multiple other statutes that may provide a higher penalty than the upper term on a non-specified felony offense. This bill states it is not meant to be an enhancement for purposes of judicial discretion to dismiss, but if it is not an enhancement, it is reducing criminal penalties for using a firearm in the commission of specified crimes where a person is otherwise prohibited from a prior conviction from possessing a firearm. Defendants may not be sentenced on the same conduct multiple times, so without including enhancements, this legislation may result in a defendant doing less time. Does it make sense to enact this statute when there are so many other statutes on which to rely in order to prosecute a violent felony to the full extent of the law?

Criminal sentencing laws in California are extremely complicated and require considerable experience to navigate. Perhaps it makes more sense to determine if there is a gap in existing law before proposing new sentencing statutes that increase prison sentences where there is no evidence any infirmity in the law.

1. Determinate Sentencing Law (DSL): This bill requires a court to give weight to imposing the upper term where a defendant is charged with an offense involving the use of a firearm and is otherwise prohibited from possessing a firearm. However, changes to determinate sentencing in the early 2000s require that each element aggravating a criminal penalty be pled and prove to a trier of fact – either a judge or a jury. It requires taking evidence on the validity of the facts supporting the escalated sentence. This bill appears to re-direct the weighing of aggravating and mitigating factors to impose the upper term and does not specify any plead and prove standard.

Prior to 1977, convicted felons received indeterminate sentences in which the term of imprisonment included a minimum with no prescribed maximum. For example, an individual might receive a “five-years-to-life” sentence. After serving five years in prison, the individual would remain incarcerated until the state parole board determined that the individual was ready to return to the community and was a low risk to commit crimes in the future.

In 1976, the Legislature and the Governor enacted a new sentencing structure for felonies, called “determinate sentencing,” which took effect the following year. Under this structure, most felony punishments have a defined release date based on the “triad” sentencing structure. The triad sentencing structure provides the court with three sentencing options for each crime. For example, a first-degree burglary offense is punishable by a term in prison of two, four, or six years. The middle term is the presumptive term to be given to an offender found guilty of the crime. (See Pen. Code, § 1170, subd. (b)(1).) The upper and lower terms may be imposed if circumstances concerning the crime or offender warrant more or less time in state prison. (See Rules of Ct. 4.421.)

Cunningham v. California (2007) 549 U.S. 270 (hereinafter Cunningham) held California's determinate sentencing law violated the defendant's Sixth Amendment right to a jury trial because it 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 beyond a preponderance of evidence to increase the defendant’s sentence from the presumptive middle term to the upper term and, as such, is 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." (Cunningham, supra, 549 U.S., at 274.) Cunningham overruled the California State Supreme Court in People vs. Black (2005) 35 Cal. 4^th 1238. Black held California's DSL constitutional. The California Supreme Court stated:

“In operation and effect, the provisions of the California DSL simply authorize a sentencing court to engage in the type of fact-finding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the 'statutory maximum' and a trial court's imposition of an upper term sentence does not violate a defendant's right to a jury trial under the principles set forth in [existing law].” (Black, supra, 35 Cal. 4th, at 1254.)

The United States Supreme Court relied on several earlier decisions to justify the holding in this case. In 2000, the Court ruled in Apprendi vs. New Jersey 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. (Apprendi vs. New Jersey (2000) 530 US 466, 490; Cunningham, supra, at 274-75.)

The United States Supreme Court further clarified this “bright-line rule” in Blakely vs. Washington, "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." (Emphasis added.) (Blakely vs. Washington (2004) 542 U.S. 296, 303.) In 2005, the United States Supreme Court struck down portions of the Federal Sentencing Guidelines (FSG) in Booker vs. United States (2005) 543 U.S. 220. However, the Court saved the FSG by excising the part of the guidelines it found unconstitutional, namely the provision making the guidelines binding on district judges. The Court reasoned:

“If the [FSG] as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Indeed, everyone agrees that the constitutional issues presented by [this case] would have been avoided entirely if Congress had omitted from the [FSG] the provisions that make the Guidelines binding on district judges. . . . For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” (United States v. Booker (2005) 543 U.S. 220, 233.)

Aggravating factors in support of an upper term require a trier of fact to determine whether the factors are true. This bill appears to end-run Cunningham by requiring a court to use a “great weight” standard under specified circumstances to determine if the upper term is appropriate, even where the facts are not proven to a jury.

1. State Prison Credits: This bill provides that any person who is prohibited from owning a firearm who commits a new felony may not receive good conduct credits until after they complete specified rehabilitation programs. However, Article I, section 32 renders to CDCR a determination of credits.^[1]

Penal Code section 2930, et seq., governs the application of custody credits when a person is incarcerated in state prison, which, as explained below, is likely subject to approval by CDCR. Penal Code Section 2933 credits were formerly awarded for performance in work assignments and educational programs, and were called “worktime” credits. However, effective January 25, 2010, Section 2933 was amended to provide for the award of credits on the basis of continuous incarceration. (See former Penal Code § 2933(a).) The amendment to Section 2933 were accompanied by the enactment of Penal Code Section 2933.05, which authorizes the awarding of credits for completion of specific program objectives for approved rehabilitative programming.

Certain restrictions may apply to the amount of credits a person may earn, or reduction of sentence that may be awarded. An inmate convicted of murder, as specified, or a violent felony, as defined in Penal Code section 667.5, subd. (c), may only be entitled to 15% credit depending on what the person was convicted of and when the conviction occurred. (Former Pen. Code, § 190, subd. (a) and §§ 190, subd. (c); Pen. Code, §§ 667.70, 2933, 2934; People v. Jenkins (1995) 10 Cal. 4th 234 (murderer subject to sentencing under Penal Code § 667.7 is to be sentenced under that statute and not under Penal Code § 190, but credit restrictions under Penal Code § 2933 still apply as if sentenced under Penal Code § 190.)

A person sentenced to state prison may also be entitled to “continuous incarceration credits.” For every six months of continuous incarceration, an eligible person may be awarded credit reductions of six months. (Penal Code § 2933, subd. (b).) People sentenced to CDCR may also be entitled to “program credits.” In addition to any credit awarded pursuant to Penal Code Section 2933, CDCR may also award a prisoner program credit reductions from their term of confinement pursuant to Penal Code Section 2933.05. This bill requires a defendant to complete specified programming before earning conduct credits. CDCR already controls conduct credits based on good behavior and participation in programming. However, existing law does not allow changes to that process because CDCR has exclusive authority to determine credits.

1. Proposition 57 and CDCR Exclusive Authority to Adopt Credits: Proposition 57, the “The Public Safety and Rehabilitation Act of 2016” (hereinafter “Prop. 57”) of the November 2016 election changed the rules governing parole and the granting of custody credits to inmates in state prison. Prop. 57 authorized CDCR to award credits earned for good behavior and approved rehabilitative or educational achievements. Before Prop. 57, the matter of conduct credits earned in prison was governed by statute. (See e.g., Pen. Code, §§ 2933 and 2933.1.) Specifically, Prop. 57 added section 32 to article I of the California Constitution which states, in pertinent part:

“§32. (a) The following provisions are hereby added to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law….

(2) Credit Earning: The Department of Corrections and Rehabilitation shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements.

(b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety.” (Emphasis added.) (Cal. Const., art. I, § 32, subd. (a)(2).)

Currently, there are some courts interpreting section 32 as granting exclusive authority to CDCR to decide when, and under what circumstances, a person may receive conduct credits. Judge J. Richard Couzens (Ret.) and Presiding Justice of the 2nd Appellate District both held that it appears Prop 57 granted CDCR sole authority to decide credits – not the Legislature. Both Judge Couzens and Justice Bigelow are the Judicial Council statewide experts on Realignment and felony sentencing post-2014.

“[I]t is not clear whether the credits awarded by CDCR for good behavior are in addition to the credits currently authorized under sections 2933 and 2933.05, or whether CDCR has exclusive jurisdiction to determine all good conduct and rehabilitation credits earned by inmates. It is unlikely that it was the intent of the sponsors of the Act to simply confirm CDCR’s existing authority to grant conduct credits. Rather, the Act is intended to increase the authority of CDCR to grant conduct credits for good behavior and participation in rehabilitation programs. At a minimum, therefore, the Act likely gives CDCR authority to award credits in addition to those already provided by statute, and not to be limited because of the nature of the current crime. If CDCR has exclusive jurisdiction to determine conduct credits, presumably it may set credits at a higher or lower rate than currently provided by statute. It is at least arguable that CDCR is given total control over credits because the Act specifies that CDCR ‘shall have authority to award credits notwithstanding . . . any other provision of law.’”

Additionally, in People v. Brown (2016) 63 Cal.4th 335, the Supreme Court considered the scope of Elections Code section 9002, which permits amendments to an initiative if they are “reasonably germane” to the measure’s theme, purpose, or subject. In opining the proposed amendments to Proposition 57 which would grant CDCR the power to award credits violated this section, Justice Chin’s dissenting opinion discussed the implications:

“The constitutional amendment would also give the Department of Corrections and Rehabilitation (department) constitutional authority to award behavior and other credits. The Legislature has already enacted detailed mandatory provisions for the department to award conduct and participation credits. (See Pen. Code, § 2931 et seq.) But the amended measure's proposed constitutional language is permissive. Presumably, authority to award credits includes authority not to award credits or to award lower credits than the statutes currently require. Because the Constitution prevails over mere statutes, it appears the proposed constitutional amendment would displace the current statutory provisions for credits and shift authority over such credits from the legislative to the executive branch of government. For the moment, I will assume that altering the balance of power between the two branches of government in this way would not be an impermissible constitutional revision. … But shifting power from one branch of government to another is not reasonably germane to the original measure, which left the separation of powers between the branches of government untouched. (Brown, supra, 63 Cal.4th at p. 359.)

Justice Chin’s dissent further states:

“The proposed constitutional amendment gives the department “authority to award credits earned for good behavior and approved rehabilitative or educational achievements.” (Amended measure, § 3, adding art. I, proposed § 32, subd. (a)(2).) But it does not explain how this new, apparently permissive constitutional provision would interact with the detailed, mandatory provisions for credits the Legislature has enacted. As I have already discussed, the constitutional provision would seem to displace the statutory scheme. But I am not sure that is the intent. Displacing the statutory credit scheme might be one of the measure's “unintended consequences”…. (Brown, supra, 63 Cal.4th at p. 361.)

It remains an open question whether the Legislature still has the authority to enact statutes pertaining to credits. However, as noted by Justice Chin, it is possible that one of the “unintended consequences” of Prop. 57 was to shift this authority exclusively to the executive branch. This bill interferes with CDCR’s ability to issue credits and is likely not operative or unconstitutional.

1. Arguments in Support: According to the California Police Officers Association: AB 2788 will apply to anyone that is prohibited from owning a firearm and commits a felony using a firearm, or anyone who is convicted of two crimes against a person and commits a third crime against a person within three years, and requires that those offenders be denied bail until arraignment. This bill also requires a judge to consider the repetitive nature of the person’s crimes and give weight towards maximum sentences allowed for all charges, mandates the courts to require rehabilitation or education programs be completed during incarceration for good conduct credits to be awarded, and requires five years of maximum level supervised probation if probation is granted.”
   
2. Arguments in Opposition: According to Smart Justice: AB 2788 would make a person who is prohibited from owning a firearm due to prior convictions who commits a felony involving the use of a firearm, or a person who is convicted of two crimes against a person, and who commits a third crime against a person, within three years, subject to various conditions, including, among others, requiring that the person be detained, booked, and held in custody until arraignment, requiring treatment, rehabilitation, or education programs to be completed before the person can receive good conduct credits, and, if probation is granted, requiring it to be for a duration of 5 years. The conditions this bill would impose are unneeded and counterproductive.

Current law provides judge discretion regarding the pretrial release of individuals and the imposition of appropriate sentences based on the seriousness of an offense and the criminal history of the individual. Establishing the mandates required by this bill only serves to restrict courts ability to tailor the appropriate conditions and sentences needed in each case. In addition, the bill’s requirement that courts mandate treatment, rehabilitation, or education programs to be completed during incarceration, the successful completion of which shall be required before good conduct credits are awarded impedes rehabilitative and programming efforts by jails and prisons.

Courts might impose education or treatment programs not available to individuals based on prison or jail in which they are incarcerated. Rehabilitative programs do not necessarily have a “completion” point. This bill would create a disincentive for individuals to enroll in rehabilitation or educational programs that are ongoing, for which an individual would be in custody for too short a time to “complete,” or were not specifically mandated by the court but which might be readily available and helpful to the individual.

1. Prior Legislation: AB 1509 (Lee), of the 2021-22 Legislative Session, reduces the penalty for using a firearm in the commission of specified crimes - from 10 years, 20 years, or 25-years-to-life to one, two or three years - and authorizes recall and resentencing for a person serving a term for specified firearms enhancements. AB 1509 was held on suspense in the Assembly Appropriations Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Arcadia Police Officers' Association
Burbank Police Officers' Association
California Association of Highway Patrolmen
California District Attorneys Association
California Narcotic Officers' Association
California Police Chiefs Association
California Reserve Peace Officers Association
Claremont Police Officers Association
Corona Police Officers Association
Culver City Police Officers' Association
Deputy Sheriffs' Association of Monterey County
Fullerton Police Officers' Association
Murrieta Police Officers' Association
Newport Beach Police Association
Novato Police Officers Association
Palos Verdes Police Officers Association
Placer County Deputy Sheriffs' Association
Pomona Police Officers' Association
Riverside Police Officers Association
Riverside Sheriffs' Association
Santa Ana Police Officers Association
Upland Police Officers Association

Opposition

ACLU California Action
California Alliance for Youth and Community Justice
California Attorneys for Criminal Justice
California Public Defenders Association
Californians United for A Responsible Budget
Felony Murder Elimination Project
Initiate Justice
LA Defensa
Legal Services for Prisoners With Children
San Francisco Public Defender
Silicon Valley De-bug
Smart Justice California, a Project of Tides Advocacy
Team Justice

Transformative Programming Works
Uncommon Law
Young Women's Freedom Center

Analysis Prepared by:

1. Code of Civil Procedure section 526 allows any California taxpayer to file suit against the state or a state agency to enjoin or order an agency to take a specific action. Any taxpayer, as specified, may file suit against any legislative action for injunctive relief if it violates state law or the Constitution. ↑