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April 2, 2007 - Metropolitan News-Enterprise(CA)

Governor Approves Changes to California Sentencing Law

By Kenneth Ofgang, Staff Writer

Return to Drug War News: Don't Miss Archive

Gov. Arnold Schwarzenegger Friday signed legislation revising the state's determinate sentencing system, a response to a U.S. Supreme Court decision earlier this year that ruled California's current procedure unconstitutional.

"I commend the legislature for the quick passage of SB 40, because it is critical that we work together to give clear direction for sentencing standards to our judicial branch," Schwarzenegger said in a statement.

"This bill gives judges the discretion to sentence criminals on an individual basis, ensuring that each punishment fits its respective crime.

Current law makes the sentencing of criminals confusing and difficult for our judges. SB 40 will help California comply with the U.S. Constitution and the Supreme Court decisions so that we maintain fairness and clarity in our courts."

The governor added:

"I look forward to working with the legislature when they return to give the people of California comprehensive reform in our prisons and solving our overcrowding crisis."

The bill, which takes effect immediately as an urgency measure, permits the judge in each case to choose between the lower, middle, or upper term provided by law for the particular crime.

It was approved by the Senate Thursday by a 32-2 vote, after having been previously approved with amendments by the Assembly, which passed it by a vote of 63-5.

Under prior law, the judge could only select the lower or upper term if he or she found that there were sufficient mitigating or aggravating circumstances to justify that departure.

In January's 6-3 decision in Cunningham v. California, the justices said that the use of facts determined by a judge to impose the upper term violates the defendant's right to trial by jury.

That result has caused a great deal of confusion, with some predicting that 10,000 previously sentenced inmates could be affected. The state Supreme Court has granted review in a number of those cases, and the Third District Court of Appeal weighed in Wednesday with a ruling allowing prosecutors to allege aggravating factors by amendment to the charging document and allowing judges to hold a bifurcated trial on those allegations.

That case is Barragan v. Superior Court, C054719.

Arguments abound as to whether SB 40 actually solves the problem identified by the high court, since it allows judges more latitude in imposing sentences but does not provide for jury factfinding.

Some legal experts, as well as Sen. Tom McClintock, R-Thousand Oaks, argued that the bill should have provided for bifurcated sentencing proceedings in order to ensure its constitutionality.

McClintock and Sen. Carole Migden, D-San Francisco, formed an unusual right-left combination in voting against the bill.

Democrats have promoted the bill as a stopgap measure while they consider creating a commission to review California's sentencing and parole laws.

Schwarzenegger has called for a wider review of the state's sentencing laws as part of an overall prison-reform effort, including a bid to solve the overcrowding crisis.

A separate Romero bill would create a California Sentencing Commission comprised of 20 members. The chief justice would be the chair, and the commission would include other judges as well as representatives of various interest groups, including prosecutors, defense lawyers, academics, law enforcement, and victims' rights advocates.

The commission would specify sentences, except that its decisions could be overturned by a two-thirds majority of the Legislature.

Democrats said prison reform should be addressed separately from the sentencing changes required by the Cunningham decision.

Copyright 2007, Metropolitan News Company

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