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Criminal Defense Attorneys

Under SB 81 and PC 1385, Dismissal of Enhancements?

On October 8, 2021, Governor Gavin Newsom signed Senate Bill 81.  It will be effective January 1, 2022.
The new law adds a section to Penal Code § 1385, section (b), that requires a judge to dismiss an enhancement if it is in the furtherance of justice to do so, unless any initiative statute prohibits such action. 

Proposition 83 (“Jessica’s Law”), which passed in 2006, for example, prohibits dismissal of firearm or great bodily injury enhancements in sex offense cases.  Proposition 115 (the “Crime Victims Justice Reform Act”), which passed in 1990, prohibits a judge from dismissing certain special circumstance sentence enhancements in murder cases. 
The Gist of this Article: Senate Bill 81 gives judges new discretion to dismiss enhancements unless a prior legislative act prohibits dismissal, i.e., in a sex offense or murder case.  The new bill has bold, strong language in favor of dismissing enhancements when certain circumstances are found true unless the judge finds doing so will endanger public safety.
The intent behind the new law seems to be to encourage judges to look deeper at the conduct and whether public safety is really so endangered by defendant that defendant must serve the extra time in prison that the enhancement adds.  After all, it is estimated that up to 80% of the inmates in California state prisons have served their time on the base term for their sentence, but are still in prison serving time just on the enhancement.

Making matters worse, sometimes the enhancement is not justified.  For example, most criminal defense attorneys are familiar with how someone may have a prior strike for residential burglary as a juvenile when all the juvenile did was go into someone else’s house, often after being given a key to enter by the owner, but then steals a DVD player or X-box while someone is asleep in another part of the house.  Many of our clients have also suffered a strike as a juvenile for assault with a deadly weapon under Penal Code § 245(a)(2), but the gun was empty or never brandished during the crime.

Under Senate Bill 81, the judge may consider striking an enhancement on its own initiative or based on the request of the prosecutor.  In considering this, the judge must give great weight to evidence offered by the defendant to prove any of nine non-exclusive mitigating circumstances, set out in the statute as follows:

1.    “Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of [Penal Code] § 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 Penal Code § 667.5(c).
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.
9.    Though a firearm was used in the current offense, it was inoperable or unloaded.

For the purposes of considering mental illness, Senate Bill 81 defines mental illness as “a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia.”  

A judge may conclude that a defendant’s mental illness was connected to the offense if, after reviewing “any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense” and the judge concludes that the defendant’s mental illness substantially contributed to the defendant’s involvement in the commission of the offense. Penal Code § 1385(c)(5).  In other words, there must be a nexus or connection between the mental illness and the offense.

Proof of mitigating circumstances “weighs greatly” in favor of dismissing the enhancement unless the judge finds dismissal would endanger public safety, which is defined in the statute as meaning “there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” Penal Code § 1385(c)(2).

The statute allows a court to exercise its new discretion before, during, or after trial or entry of plea as well as at sentencing.

While we applaud this new law, we are not optimistic that judges will embrace it.  Anecdotal evidence of how new Los Angels District Attorney George Gascon’s sentencing directives were received by judges suggests few judges will have the courage to dismiss enhancements.

For more information about sentencing issues, please click on the following articles:
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