On October 1, 2021, Governor Gavin Newsom signed Assembly Bill 518 into law. The law, which revised Penal Code § 654, will be effective January 1, 2022. It broadens judicial discretion to chose among various sentence lengths when two or more code sections penalize the same conduct.
Current law, under Penal Code § 654, forbids punishing a person under more than one provision of the law that forbids the same conduct. This is often seen as California’s codification of the prohibition against double jeopardy. Section 654 further provides that “[A]n acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
However, section 654 also states that when an act or omission is punishable in different ways by different laws be punished under the law with the longest possible term of imprisonment.
Assembly Bill 518 changes this, permitting the judge, when defendant faces punishment under different laws with different lengths of punishment, the choice of imposing a sentence under any one of the provisions. However, if any one of the competing laws forbids probation, the judge may not refer defendant to probation. If one of the laws imposes a mandatory state prison sentence, the judge must impose state prison, but the term may be of the lowest term allowed by any of the laws potentially applicable for sentencing defendant.
The Author’s Statement to the bill points to the need to restore judicial discretion in sentencing as the purpose of this amendment, bringing a judge’s Penal Code § 654 discretion to its pre-1998 level, as recognized in People v. Norrell (1996) 13 Cal.4th 1.
Presumably, a defendant facing punishment under two or more provisions of the law for the same conduct when the provisions provide for more and less punishment (not the same) will want to argue to the judge that he or she should select the provision with less punishment.
When this opportunity arises, we recommend submitting a brief in support of sentencing according to the lower term and not the greater term. Such a brief should first explain the changes in Penal Code § 654 as brought by Assembly Bill 518. The brief should include a brief overview of the case facts in Section 1. Section II should present the new Penal Code § 654 and explain the changes made effective January 1, 2022.
Section III of the brief should then methodically address each of the sentencing factors as listed for a judge to consider in determining terms of probation, but which can also be evaluated in the context of an upper term or lower term in sentencing. They are listed at California Rules of Court, Rule 4.414(b) and provide that the judge may consider factors relating to the crime, specifically:
"(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;
(2) Whether the defendant was armed with or used a weapon;
(3) The vulnerability of the victim;
(4) Whether the defendant inflicted physical or emotional injury;
(5) The degree of monetary loss to the victim;
(6) Whether the defendant was an active or a passive participant;
(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur;
(8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism . . . ;
(9) Whether the defendant took advantage of a position of trust or confidence to commit the crime." (Rule 4.414(a).)
The judge may then consider factors relating to the defendant, which include:
"(1) Prior record of criminal conduct . . . including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct;
(2) Prior performance on probation or parole and present probation or parole status;
(3) Willingness to comply with the terms of probation;
(4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;
(5) The likely effect of imprisonment on the defendant and his or her dependents;
(6) The adverse collateral consequences on the defendant's life resulting from the felony conviction;
(7) Whether the defendant is remorseful;
(8) The likelihood that if not imprisoned the defendant will be a danger to others."
We suggest the brief address each factor separately, in order, in a rigorous manner and then, in the conclusion of the brief, respectfully submit that the lower sentence “fits” the circumstances of the crime and characteristics of defendant.
For more information about illegal sentences under Penal Code 654 and other 654 issues., please click on the following articles: