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SACRAMENTO � Judges would have sole, “sound” discretion to set prison-term lengths under a bill that marks the Legislature’s first attempt to comply with the U.S. Supreme Court’s recent decision in Cunningham. Senate Bill 40, which sailed through a policy committee hearing Tuesday, would empower judges to impose a minimum, middle or maximum sentence on criminal defendants without making the factual findings now required. The Supreme Court on Jan. 22 struck down a portion of California’s determinate sentencing law on the grounds that juries, not judges, must determine facts that could trigger longer prison terms. “The remedy in SB 40 is one suggested by the Supreme Court,” said Sen. Gloria Romero, D-Los Angeles, who authored the bill. “It puts us in compliance with the court and it stabilizes the court system.” California’s courts are scrambling to decipher what constitutes compliances with Cunningham. In a Jan. 23 memo to fellow jurists, Supervising Criminal Division Judge Steven Van Sicklen of the Los Angeles County Superior Court suggested “the safest and easiest decision is to impose a middle base term” in upcoming sentencings. “It is chaos now because there’s no statutory authority to do what the court has told us to do,” said James Provenza, a special assistant with the Los Angeles County district attorney’s office, which supports SB 40. The California District Attorneys Association, however, has not taken a position on the bill. Neither has the California Public Defenders Association, whose members are split on what the response to Cunningham should be. Ignacio Hernandez, a lobbyist for the California Attorneys for Criminal Justice, said lawmakers are moving too fast on a bill that “could put in jeopardy our entire sentencing structure again.” SB 40 could create widely different sentencing practices from county to county, Hernandez said. “The Supreme Court also endorsed a role for the everyday jury in deciding what a sentence should be,” he said. “This bill has no role for the jury whatsoever.”

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