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Resentencing Example under SB 620, 1393, 567 and 518

In 2016, an Alameda County jury convicted Leonard Jones of attempted murder and related charges and found true several sentencing enhancements, including firearm use enhancements and a prior prison term enhancement. 

In 2020, the trial court judge sentenced him to 59 years in prison as follows: on attempted murder (Penal Code §§ 187(a), 664), the judge imposed the upper term of nine years, doubled to 18 years because of Jones’ prior strike conviction (Penal Code §§ 667(e)(1), 1170.12(c)(1)); plus 20 years on the enhancement that Jones personally and intentionally discharged a firearm (Penal Code § 12022.53(c)); plus 12 years for three counts of assault with a semiautomatic firearm (mid term of two years, doubled for a prior strike, each consecutive); plus 4 years (three 16 month consecutive terms (one-third the mid-term on the gun-use enhancement (Penal Code § 12022.5(a)) for each assault charge)); plus five years for Jones’ prior serious felony conviction (Penal Code § 667(a)(1)).  

On appeal to the First Appellate District in San Francisco, he made several arguments, one of which was that he should be resentenced because of changes to the law due to Senate Bill (SB) 620 (which took effect in 2018) and SB 1393 (which took effect in 2019).  Senate Bill 620 amended Penal Code §§ 12022.5 and 12022.53 to give the judge discretion to strike a firearm use enhancement and SB 1393 amended Penal Code §§ 667(a) and 1385(b) to give the judge authority to strike or dismiss a five-year prior serious felony conviction enhancement.  
When the judge sentenced Jones, the judge did not consider striking the firearm use enhancement or not imposing the five-year prior serious felony conviction enhancement.  By law, if a judge did not know he or she had such discretion in sentencing, that failure to know constitutes an abuse of discretion in sentencing, meriting resentencing.

Moreover, more recent legislation passed into law, effective January 1, 2022, also applied, Jones argued.  Senate Bill 567 modified Penal Code § 1170(b) and Assembly Bill (AB) 518 modified Penal Code § 654. 
Senate Bill 567 amended Penal Code § 1170(b) to specify that, when a sentencing judge chooses a term from a statutory triad, the chosen term shall not exceed the middle term unless the facts supporting the aggravating circumstances are: (1) established by defendant’s stipulation to them; or (2) proven to a jury (or to a judge if a jury is waived) beyond a reasonable doubt., or (3) based on prior convictions evidenced by a certified record of conviction.  Jones contended the judge imposed the upper term for attempted murder on grounds that do not meet these requirements.

Senate Bill 567 also added a provision that required the judge to impose the low term if defendant’s psychological, physical, or childhood trauma was a contributing factor in the commission of the offense, “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice.”  As to this provision, Jones stated that his probation report states that Jones’ father was charged with murdering his mother and that Jones dropped out of high school in the 12th grade following her death.

Assembly Bill 518 also applied, Jones argued, as it amended Penal Code § 654(a) to state: “An act or omission that is punishable in different ways by different provisions of the law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.”  Previously, a judge was required to impose the sentence that “provides for the longest term of imprisonment” and stay execution of the other term.  Section 654 now provides the trial court judge with discretion to impose and execute the sentence on either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.”  People v. Mani (2022) 74 Cal. App. 5th 343, 379.

The prosecutor agreed with Jones that because his sentence was not final, he was entitled to retroactive application of SB 620 and SB 1393, as well as SB 567 and AB 518, as these new statutes constituted ameliorative changes to the law.

The First Appellate District vacated the sentence and remanded the case for resentencing.

In presenting this summary, we ask the reader to note that these new sentencing laws are only available to nonfinal sentences, not cases wherein the sentence is final, meaning where the time to file an appeal in the case has expired.

For more information about resentencing under the recent new laws, please click on the following articles:
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