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Criminal Defense Attorneys

Senate Bill 81 Resentencing: Must Dismiss Enhancement?

In the last few years, there have been numerous Assembly Bills and Senate Bills that dealt with a judge’s discretion or even the legal requirements for imposing a sentence enhancement.  It can be difficult to keep each one straight.

One thing that is certain, however, is that none are retroactive to a final sentence, but if the Secretary of the California Department of Corrections and Rehabilitation (CDCR) or the District Attorney notifies the judge that he or she should recall and resentence an individual, such new laws will apply if the judge agrees to resentence the individual.

Senate Bill 81 is one of the most sweeping of the recent resentencing laws.  Senate Bill 81 amended Penal Code § 1385 to now state that trial courts “shall dismiss a [sentencing] enhancement if it is in the furtherance of justice to do so.” 

Section 1385 nine “mitigating circumstances” and mandates that the presences of any of them “weighs greatly in favor of dismissing the enhancement unless the court finds that dismissal of the enhancement would endanger public safety,” which occurs if “there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.”

The nine mitigating circumstances are:
  1. Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745;
  2. Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed;
  3. The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed;
  4. The current offense is connected to mental illness;
  5. The current offense is connected to prior victimization or childhood trauma;
  6. The current offense is not a violent felony as defined in subdivision (c) of Section 667.5;
  7. The defendant was a juvenile when they committed the current offense or any prior juvenile adjudication that triggers the enhancement or enhancements applied in this case;
  8. The enhancement is based on a prior conviction that is over five years old; and
  9. Though a firearm was used in the current offense, it was inoperable or unloaded.
How this new law applies was put to the test by Maurice Walker in the Second Appellate District in a case arising out of the Clara Shortridge Foltz Courthouse.

In 1993, when Mr. Walker was a juvenile, he was adjudicated guilty of a robbery.  In 1992, as an adult, he was convicted of assault with a deadly weapon after he smashed a glass in his girlfriend’s face, breaking her nose and causing lacerations requiring over 100 stitches.  In 1995, he was convicted of defrauding an innkeeper.  In 2001 and again in 2007, he was convicted of felony drug possession, but successfully petitioned in 2015 to have the 2001 conviction reduced to a misdemeanor.  In 2009, Mr. Walker was found in violation of his probation from 2007 by making a criminal threat.

In 2012, Mr. Walker elbowed a woman in the mouth.  When a 77-year-old man in a wheelchair tried to intervene to stop defendant’s attack on the woman, Walker pulled out a knife and repeatedly stabbed the man in his arm. 

He was charged with numerous crimes and the jury found him guilty of all such crimes and found true all enhancements, two of which were among the nine on the SB 81 list.

The judge sentenced Mr. Walker to 20 years in state prison after agreeing to dismiss the juvenile strike because otherwise, Mr. Walker was eligible for a third strike sentence of 25 years to life.  The 20 years was ten years, doubled, plus 13 years for an elder abuse enhancement that was stayed.

In 2015, he petitioned for a writ of habeas corpus seeking resentencing wherein he asked the court to dismiss each one-year prior prison term enhancement.  The judge dismissed one such enhancement only and Walker appealed to the Second Appellate District.

The Second Appellate District explained that SB 81 could apply because one of the prior conviction was for a prior conviction over five years old and multiple enhancements were alleged. 

However, the Second Appellate District did not find the trial court abused its discretion in denying additional dismissals of enhancements because the judge found doing so would result in physical injury to others because Walker had a history of unprovoked attacks (in 1992 and 2012).

While one may find this ruling harsh, we offer this to exemplify how courts are applying SB 81.

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