Overwhelming evidence has demonstrated that sentencing enhancements have not been the successful deterrent to crime they were designed to be, but even more than that, they have failed to improve public safety and have resulted in unnecessarily long mass incarcerations and inequity. As a result, in the last several years, California’s leaders and legislatures have worked hard to correct the harm caused by unjust and disproportionately long sentences. Some of the most important laws that were enacted include SB 1393, AB 2942, and SB 81.

SB 1393 or The Fair and Just Sentencing Reform Act of 2018, reformed the law on one of the most commonly used sentencing enhancements in California, namely the 5-year enhancement given for each prior serious felony conviction when a person is currently charged with a serious felony. Prior to 2019, the law specifically prohibited judges from using their discretion to dismiss the 5-year enhancement for prior serious felony. That changed with the enactment of SB 1393. SB 1393 eliminated the mandatory application of the prior serious felony enhancement and allowed judges to use their discretion to strike the enhancement in furtherance of justice.

While SB 1393 is not retroactive, along that bill, the California legislature also passed AB 2942, which, just like SB 1393, went into effect on January 1, 2019. Prior to AB 2942, district attorneys had no way of revisiting sentences or recommending a sentence recall and reduction. However, the new law granted district attorneys the discretionary power to revisit cases and determine whether further incarceration is actually in the interest of justice. If a district attorney decides to make a recommendation, it is then within the discretionary power of the court to decide whether to grant a recall hearing. Under the law, the court has the authority to look at a wide range of factors, including post-conviction factors and any new laws that have been passed, including laws invalidating certain enhancements.

In addition, in 2021, the state legislature passed SB 81, which came into effect on January 1, 2022. This bill instructs courts to give great weight to mitigating evidence presented by a defendant, and to dismiss an enhancement if it is in the furtherance of justice. The bill specifically lists nine mitigating circumstances, which if present, should weigh heavily in favor of striking an enhancement. Moreover, the new law instructs judges that the list is not exhaustive, and that the courts retain the authority to strike an enhancement whenever it will be in the interest of justice. While SB 81 is not retroactive, courts can apply it in all cases that come before them for resentencing purposes.

At the Justice Firm we believe that it’s very important to work with a reliable and experienced attorney who specializes in post-conviction matters. We know that the attorney-client relationship is an important aspect of your legal journey and our highly skilled attorneys are here to help and answer any questions you might have.

If you or a loved one is serving a lengthy prison sentence and have questions about any of the above laws, or if you think that these or any other new laws could impact your case, contact our California appeals attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

In 2020, Governor Newsom commissioned the Committee on Revision of the Penal Code to thoroughly examine the California Penal Code and to issue recommendations for reform. When it came to sentence enhancements, overwhelming evidence was presented that their application has failed to improve public safety and has resulted in unnecessarily long incarcerations and inequity. Studies have shown that these enhancements, which are not elements of the crime and could result in double the time a person spends in prison, have been applied disproportionately to people of color and those suffering of mental illness. During testimony before the Committee, the former Governor Brown argued that California should abolish all enhancements or, at minimum, give judges better guidance on how and when they should be applied to avoid arbitrary use.

Prior to SB 81, while judges had the authority to dismiss sentence enhancements, they almost never did so, as the law provided them with no clear guidance. Even the California Supreme Court had noted that the standards used by judges are vague. As a result, based on the Committee’s findings and recommendations on the issue, SB 81 was passed and Governor Newsom signed it into law on October 8, 2021. SB 81 became effective on January 1, 2022. Senator Skinner, who introduced the bill, has said that “SB 81 sends a clear message to our courts: Let’s use sentence enhancements judiciously and only when necessary to protect the public.”

With SB 81 in effect, judges now have more clarity and guidance when deciding whether to dismiss an enhancement. The new bill requires that judges dismiss an enhancement if it is in the furtherance of justice. Specifically, the law requires that judges give great weight to evidence provided by the defendant showing the presence of certain mitigating circumstances, and instructs them that the presence of at least one of them, should weigh heavily in favor of the dismissal of an enhancement. There are nine circumstances listed in the bill:

• If more than one enhancement is alleged in a single case, a judge should dismiss all enhancements beyond a single one;
• An enhancement should be dismissed, if the court determines that it would result in an unjust racial impact;
• If the offense at issue was associated with a mental illness, then an enhancement should be dismissed;
• Similarly, the court should dismiss an enhancement, if the offense was related to childhood trauma or prior victimization of the defendant;
• An enhancement should also be dismissed if its application would result in a sentence exceeding 20 years;
• If the enhancement is based on a prior conviction that is at least 5 years old, then it shouldn’t be applied;
• Defendant’s age at the time the crime was committed should be taken into consideration. Judges are required to consider whether the defendant was a juvenile at the time or whether the enhancement was triggered by prior juvenile adjudication;
• Whether the offense was a non-violent offense or didn’t involve the use of firearm should be taken into account; and
• Finally, even if a firearm was used during the commission of the offense, whether it was unloaded or inoperable.

Notably, while the bill does specifically list the above-mentioned circumstances, it also states that the list is not exclusive and that judges retain the authority to dismiss or strike an enhancement if it is in the furtherance of justice, even if the specifically stated mitigating circumstances are not present.

While the new law requires judges to consider evidence showing mitigating circumstance, it also preserves the court’s authority, in the name of public safety, not to factor them in, if the court determines that there is a likelihood that not imposing the enhancement would result in physical harm or other serious risk to others.

At the Justice Firm, we understand that disclosing a childhood trauma, mental issues, or any other hardships can be challenging. This is why we believe that it’s very important to work with a reliable and experienced criminal attorney. At the Justice Firm, we know that the attorney-client relationship is an important aspect of your legal journey and our highly skilled and experienced attorneys are here to help and answer any questions you might have. If you or a loved one has questions about this law, or if you think that SB 81 could impact your case, contact our California appeals attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.