Opinion Bank # O-272 (Re: F 8.67 n6 [Board Of Prison Regulations Charged To Comply With People v. Bright].)
In response to a Petition For Writ of Habeas Corpus filed by a prisoner (Thomas Sims) the Sacramento Superior Court ordered that the California Board of Prison Terms modify its regulations to comply with People v. Bright (96) 12 C4th 652 [49 CR2d 732]. Below is the modification:
BPT AD 00-02
Section 100 Change: Written Statement
Pursuant to an April 10, 2000 order if the Sacramento Superior Court, the Board of Prison Terms (Board) is amending Title 15, sections 2400 and 2403. These amendments are filed pursuant to Title 1, Section 100(a)(3).
In a proceeding entitled In re Sims (Sacramento Superior Court No. 99F06604), the court determined that the Board’s reference to the term “attempted first degree murder” was not an alternate reference to an attempted willful, deliberate, and premeditated murder. The Superior Court order is consistent with a California Supreme Court opinion entitled People v. Bright (1996) 12 Cal.4th 652. In the Bright case, the Court determined that the portion of Penal Code section 664(a) providing for life imprisonment for an attempted willful, deliberate and premeditated murder is actually a sentence enhancement and does not create the crime of attempted first degree murder.
As a result, the Board is repealing the term “first degree” as it applies to attempted murder in Title 15, Section 2400. The term “willful, deliberate and premeditated: is not added to section 2400 because not all attempted murders that carry life term require proof that the attempt was willful, deliberate and premeditated.
Section 2403 is amended to conform to existing Board policy regarding the selection of the base term for attempted murders that carry life terms. Under existing policy, the suggested base term for an attempted willful, deliberate, and premeditated murder is set forth at subdivision (b) of section 2403. Under existing procedures, the suggested base term or category for all other attempted murders is set forth at subdivision (c) of section 2403. The amendment to Section 2403 more clearly specifies that the suggested base term for all other attempted murders is found at subdivision (c). Additional non-substantive changes have been made for clarity.
According to section 2403(a), when selecting from these categories for attempted murders that carry life terms, the hearing panel is required to impose one0half of the middle base term, unless circumstances in aggravation or mitigation exist.
This change does not materially alter any requirement, right responsibility, condition, prescription or any other regulatory element of any California Code of Regulations provision.