Existing law requires the court, when imposing a sentence for a serious felony, in addition and consecutive to the term imposed for that serious felony, to impose a 5-year enhancement for each prior conviction of a serious felony. Existing law generally authorizes a judge, in the interests of justice, to order an action dismissed, but precludes a judge from striking any prior serious felony conviction in connection with imposition of the 5-year enhancement.

This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of the 5-year enhancement described above and would make conforming changes. The bill would make additional technical nonsubstantive changes.

Existing law requires the court, when imposing a sentence for a serious felony, in addition and consecutive to the term imposed for that serious felony, to impose a 5-year enhancement for each prior conviction of a serious felony. Existing law generally authorizes a judge, in the interests of justice, to order an action dismissed, but precludes a judge from striking any prior serious felony conviction in connection with imposition of the 5-year enhancement.

This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of the 5-year enhancement described above and would make conforming changes. The bill would make additional technical nonsubstantive changes.

Existing law requires the court, when imposing a sentence for a serious felony, in addition and consecutive to the term imposed for that serious felony, to impose a 5-year enhancement for each prior conviction of a serious felony. Existing law generally authorizes a judge, in the interests of justice, to order an action dismissed, but precludes a judge from striking any prior serious felony conviction in connection with imposition of the 5-year enhancement.

This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of the 5-year enhancement described above and would make conforming changes. The bill would make additional technical nonsubstantive changes.

Existing law requires the court, when imposing a sentence for a serious felony, in addition and consecutive to the term imposed for that serious felony, to impose a 5-year enhancement for each prior conviction of a serious felony. Existing law generally authorizes a judge, in the interests of justice, to order an action dismissed, but precludes a judge from striking any prior serious felony conviction in connection with imposition of the 5-year enhancement.

This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of the 5-year enhancement described above and would make conforming changes.

SENATE THIRD READING

STR Bill Id:SB 1393

Author:(Mitchell and Lara)

As Amended Ver:May 9, 2018

Majority vote

SENATE VOTE: 23-14

SUMMARY: Allows a judge discretion to strike a prior serious felony conviction, in furtherance of justice, to avoid the imposition of the five-year prison enhancement when the defendant has been convicted of a serious felony.

EXISTING LAW:

1. States that any person convicted of a serious felony who previously has been convicted of a serious felony, as defined, shall receive, in addition to the sentence imposed by the court for the present office, a five-year enhancement for each such prior conviction. The terms of the present offense and each enhancement shall run consecutively.
2. Provides that if a defendant has one prior serious and/or violent felony conviction, as defined, that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.
3. Provides that if a defendant has two or more prior serious and/or violent felony convictions, as defined, that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment as specified.
4. Authorizes a judge or magistrate, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, to order an action to be dismissed, as specified
5. Specifies that a judge may, in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record.
6. Prohibits a judge from striking any prior conviction of a serious felony for purposes of enhancement of a sentence.

FISCAL EFFECT: According to the Assembly Appropriations Committee, potentially significant GF savings for the California Department of Corrections and Rehabilitation (CDCR) to the extent judges strike the five-year sentence enhancement for some defendants. For example, in recent years, CDCR has recorded roughly 1,700 sentence enhancements for inmates admitted (some inmates have multiple enhancements). Even if only 100 defendants annually have the five-year enhancement struck, after five years when the full effect of this change is seen, this would equate to 500 fewer inmates in CDCR. Assuming the out-of-state contract bed rate of $30,000, such a reduction in the CDCR average daily population would result in savings of $15 million.

COMMENTS: According to the author, "Nearly every sentence enhancement in California can be dismissed at the time of sentencing if the judge finds that doing so would serve the interest of justice. However, under existing law people with current and prior serious felony convictions receive a mandatory five-year enhancement. As a result, judges lack the discretion to tailor these sentences based on the facts of the case, the defendant's history and culpability or other potential mitigating factors. This has resulted in mandatory additional terms for thousands of individuals incarcerated throughout California's prisons. This rigid and arbitrary system has meted out punishments that are disproportionate to the offense, which does not serve the interests of justice, public safety, or communities.

''SB1393 amends Penal Code Sections 667 and 1385 to restore the court's discretion, in the interest of justice, to strike a five-year sentence enhancement for each prior serious felony conviction on a person's record, when a person is currently convicted of a serious felony. Allowing judicial discretion is consistent with other sentence enhancement laws and retains existing penalties for serious crimes.''

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0004026

Date of Hearing: August 15, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 1393

Author:(Mitchell) – As Amended Ver:May 9, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill allows a judge the discretion to strike a prior serious felony conviction to avoid the imposition of the five-year prison enhancement when the defendant has been convicted of a serious felony.

FISCAL EFFECT:

Potentially significant GF savings for the California Department of Corrections and Rehabilitation (CDCR) to the extent judges strike the five-year sentence enhancement for some defendants. For example, in recent years, CDCR has recorded roughly 1,700 sentence enhancements for inmates admitted (some inmates have multiple enhancements). Even if only 100 defendants annually have the five-year enhancement struck, after five years when the full effect of this change is seen, this would equate to 500 fewer inmates in CDCR. Assuming the out-of-state contract bed rate of $30,000, such a reduction in the CDCR average daily population would result in savings of $15 million.

COMMENTS:

1. Background. State law provides for various sentence enhancements that require defendants to serve additional time in prison, such as if they have certain prior convictions or the crime they committed has certain particularly egregious factors. Judges generally have broad authority to strike sentence enhancements to provide a sentence that fits the defendant and the facts of the crime. However, judges do not have the discretion to strike the five-year enhancement that all defendants face if they are convicted of a serious felony and have a prior serious felony conviction.
2. Purpose. This bill will give judges the discretion to allow or strike the five-year serious felony sentence enhancement. According to the author:

SB1393 amends Penal Code Sections 667 and 1385 to restore the court’s discretion, in the interest of justice, to strike a five-year sentence enhancement for each prior serious felony conviction on a person’s record, when a person is currently convicted of a serious felony. Allowing judicial discretion is consistent with other sentence enhancement laws and retains existing penalties for serious crimes.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing: June 27, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 1393

Author:(Mitchell) – As Amended Ver:May 9, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill allows a judge the discretion to strike a prior serious felony conviction to avoid the imposition of the five-year prison enhancement when the defendant has been convicted of a serious felony.

FISCAL EFFECT:

Potentially significant GF savings for the California Department of Corrections and Rehabilitation (CDCR) to the extent judges strike the five-year sentence enhancement for some defendants. For example, in recent years, CDCR has recorded roughly 1,700 sentence enhancements for inmates admitted (some inmates have multiple enhancements). Even if only 100 defendants annually have the five-year enhancement struck, after five years when the full effect of this change is seen, this would equate to 500 fewer inmates in CDCR. Assuming the out-of-state contract bed rate of $30,000, such a reduction in the CDCR average daily population would result in savings of $15 million.

COMMENTS:

1. Background. State law provides for various sentence enhancements that require defendants to serve additional time in prison, such as if they have certain prior convictions or the crime they committed has certain particularly egregious factors. Judges generally have broad authority to strike sentence enhancements to provide a sentence that fits the defendant and the facts of the crime. However, judges do not have the discretion to strike the five-year enhancement that all defendants face if they are convicted of a serious felony and have a prior serious felony conviction.
2. Purpose. This bill will give judges the discretion to allow or strike the five-year serious felony sentence enhancement. According to the author:

SB1393 amends Penal Code Sections 667 and 1385 to restore the court’s discretion, in the interest of justice, to strike a five-year sentence enhancement for each prior serious felony conviction on a person’s record, when a person is currently convicted of a serious felony. Allowing judicial discretion is consistent with other sentence enhancement laws and retains existing penalties for serious crimes.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing: June 12, 2018

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1393

Author:(Mitchell) – As Amended Ver:May 9, 2018

SUMMARY: Allows a judge discretion to strike a prior serious felony conviction, in furtherance of justice, to avoid the imposition of the five-year prison enhancement when the defendant has been convicted on a serious felony.

EXISTING LAW:

1. States that any person convicted of a serious felony who previously has been convicted of a serious felony, as defined, shall receive, in addition to the sentence imposed by the court for the present office, a five-year enhancement for each such prior conviction. The terms of the present offense and each enhancement shall run consecutively. (Pen. Code § 667, subd. (a)(1).)
   
2. Provides that if a defendant has one prior serious and/or violent felony conviction, as defined, that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (Pen. Code, § 667, subd. (e)(1).)
   
3. Provides that if a defendant has two or more prior serious and/or violent felony convictions, as defined, that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment as specified. (Pen. Code, § 667, subd. (e)(2).)
   
4. Authorizes a judge or magistrate, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, to order an action to be dismissed, as specified. (Pen. Code, § 1385, subd. (a).)
   
5. Specifies that a judge may, in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. (Pen. Code, § 1385, subd. (a).)
   
6. Prohibits a judge from striking any prior conviction of a serious felony for purposes of enhancement of a sentence. (Pen. Code, § 1385, subd. (b).)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Nearly every sentence enhancement in California can be dismissed at the time of sentencing if the judge finds that doing so would serve the interest of justice. However, under existing law people with current and prior serious felony convictions receive a mandatory five-year enhancement. As a result, judges lack the discretion to tailor these sentences based on the facts of the case, the defendant’s history and culpability or other potential mitigating factors. This has resulted in mandatory additional terms for thousands of individuals incarcerated throughout California’s prisons. This rigid and arbitrary system has meted out punishments that are disproportionate to the offense, which does not serve the interests of justice, public safety, or communities.
   
   “SB1393 amends Penal Code Sections 667 and 1385 to restore the court’s discretion, in the interest of justice, to strike a five-year sentence enhancement for each prior serious felony conviction on a person’s record, when a person is currently convicted of a serious felony. Allowing judicial discretion is consistent with other sentence enhancement laws and retains existing penalties for serious crimes.”
   
2. Courts Have Broad Discretion to Strike Enhancements: Penal Code section 1385 specifies that a judge may, in furtherance of justice, order an action to be dismissed. That provision has been interpreted to allow courts broad discretion to strike prior convictions and enhancements in order to provide individualized sentencing to a defendant.
   
   "Section 1385 has long been recognized as an essential tool to enable a trial court 'to properly individualize the treatment of the offender.'" (People v. Tanner (1979), 24 Cal. 3d 514,530.)  “It was designed to alleviate ‘mandatory, arbitrary or rigid sentencing procedures [which] invariably lead to unjust results.’" ( People v. Dorsey (1972), 28 Cal. App. 3d 15,18.)  "Society receives maximum protection when the penalty, treatment or disposition of the offender is tailored to the individual case. Only the trial judge has the knowledge, ability and tools at hand to properly individualize the treatment of the offender. " (People v. Williams (1970) 30 Cal. 3d 470,482, citation and internal quotation marks omitted.)
   
   One of the purposes of Section 1385 is to ensure that sentences are proportional to a defendant’s conduct. Striking a prior conviction pursuant to Penal Code section 1385 does not wipe out the prior conviction, or prevent that conviction from being considered in connection with later convictions; it simply means that the judge made a determination that, in the interest of justice, the defendant should not be required to be sentenced to a statutorily increased penalty. (People v. Ortega (2000) 84 Cal.App.4th 659, 666.)
   
   Current law provides that when a defendant is sentenced on an offense which qualifies as a serious felony and the defendant has a prior conviction for a serious felony, the defendant must receive an additional five year prison term for each prior conviction for a serious felony. Current law specifically prohibits a judge from using his or her authority under Section 1385 to strike a serious prior conviction and the additional five year prison term.
   
   This bill would provide judges the discretion to strike the five year prison enhancement if the judge found that it was in the furtherance of justice to do so.
   
3. Prison Overcrowding: On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
   
   1. 143% of design bed capacity by June 30, 2014;
      
   2. 141.5% of design bed capacity by February 28, 2015; and,
      
   3. 137.5% of design bed capacity by February 28, 2016.
      

California has enacted a series of policy changes intended to reduce the number of adults incarcerated in state prisons and boost investment in rehabilitation. These changes include Realignment, Proposition 47, and Proposition 57.

The California Budget and Policy Center published a report on California’s criminal sentencing scheme in December, 2015, entitled “Sentencing in California: Moving Toward a Smarter, More Cost-Effective Approach.” That report noted that sentencing changes enacted by California had helped the state comply with the federal court orders to reduce prison overcrowding. But the report pointed out that it was not clear that the changes would be enough to maintain the requisite reductions over the long term and that even at the levels ordered by the federal court, the state prisons are still extremely overcrowded. (http://calbudgetcenter.org/resources/sentencing-in-california-moving-toward-a-smarter-more-cost-effective-approach/)

The report stated that an important question for policymakers is whether sentence lengths are appropriate and reflect an efficient use of public resources. The report raised that question in light of the fact that longer prison terms have been a key driver of prison populations and costs and ultimately recommended cutting the length of prison terms as one way to tackle prison costs.

This bill would provide discretion for courts to avoid imposing a five year prison enhancement (which is currently mandatory), if the circumstances of the case establish that to do so would be in furtherance of justice.

State corrections spending remains stubbornly high in California despite recent criminal justice reforms and the substantial drop in the number of people involved with the state correctional system. Cutting the length of prison terms would further reduce the number of incarcerated adults and thereby allow the state to close prisons and other correctional facilities, generating substantial ongoing savings that could be redirected to other public services and systems. To achieve this outcome – a smaller state prison system – policymakers would have to reduce the length of imprisonment for a broad range of crimes, not simply for nonviolent offenses. Experts note that reducing prison lengths of stay has little to no impact on either crime rates or recidivism. (http://calbudgetcenter.org/resources/sentencing-in-california-moving-toward-a-smarter-more-cost-effective-approach/)

1. Sentencing Enhancements and Prison Overcrowding: Existing law contains a variety of enhancements that can be used to increase the term of imprisonment a defendant will serve. Multiple enhancements can be imposed in a single case. Enhancements can range from adding a specified number of years to a person’s sentence, or doubling a person’s sentence or even converting a determinate sentence into a life sentence.
   
   According to a recent Public Policy Institute of California (PPIC) publication on enhancements, as of September 2016, 79.9% of prisoners in institutions operated by the California Department of Corrections and Rehabilitation (CDCR) had some kind of sentence enhancement; 25.5% had three or more. (Sentence Enhancements: Next Target of Corrections Reform? PPIC (Sept. 2017)
   
   Among the most common enhancements are a one-year enhancement applied for each prior prison term or felony county jail term and a five-year enhancement applied to individuals convicted of a serious felony for each prior conviction for a serious felony. According to the California Department of Corrections and Rehabilitation, the five-year enhancements, respectively, impacted 19,677 sentences as of Dec. 1, 2017. (www.ocregister.com/2018/04/24/sb1392-and-sb1393-are-needed-fixes-to-californias-overuse-of-sentence-enhancements/) Those five-year enhancements are the subject of this bill.
   
2. Argument in Support: According to the California Public Defenders Association, “SB 1393 (Mitchell) amends Penal Code Sections 667 and 1385 to restore the court’s discretion to strike a five-year sentence enhancement for prior serious felony convictions. Allowing judicial discretion is consistent with other sentence enhancement laws and retains existing penalties for serious crimes. This bill does not affect ‘Three Strikes’ or any other enhancements or sentences.
   
   “SB 1393 will provide courts and judges with the ability to impose harsh sentences when the situation calls for it. Indiscriminate sentence enhancements regardless of the circumstances related to the commission of a crime does not make our communities safer.
   
   “Persons convicted of felonies are already sentenced to lengthy prison terms. Sentence enhancements are in addition to those. Studies of sentence enhancements show that adding a longer sentence to an already lengthy sentence has no deterrence on crime. Instead it greatly increases prison populations and disproportionately increases racial disparities in imprisonment.
   
   “Consistent with other enhancement sentence laws, SB 1393 would allow a court use judicial discretion when applying a sentence enhancement for a person convicted of committing a serious felony. SB 1393 does not alter and retains existing sanctions for serious crimes.
   
   “CPDA members have seen individual cases in which imposition of sentence enhancements were not warranted or were manifestly unjust. In one case, a mentally ill defendant was charged with burglary with a burglary prior after literally stealing the shirt he was wearing and food from a home. The defendant was facing at least 7 years in state prison. The judge opined that he would have stricken the priors but his hands were tied under Penal Code section 1385. Under such circumstances sentencing a mentally ill defendant to 7 years in prison is not a deterrent and wastes scarce public resources.”
   
3. Argument in Opposition: According to the California District Attorneys Association, “As you know, ‘serious felonies’ are defined in Penal Code section 1192.7(c) and include things like murder, forcible rape, lewd acts on a child under 14 years old, kidnapping, exploding a destructive device with intent to injure, carjacking, and continuous sexual abuse of a child – among many others. It is unclear under what sort of scenario a person convicted of one of these serious offenses, after previously being convicted of a serious offense, should not be subject to the enhancement in PC 667. Yet this bill contemplates exactly that – some situation where a judge is able to dismiss an enhancement that the defendant earned by his or her prior serious criminal conduct.
   

“Already, under Proposition 57, a non-violent state prison inmate will have an opportunity to go before the Board of Parole Hearings after serving his or her base term, regardless of any enhancements or consecutive sentences. Under that scheme, those who demonstrate their rehabilitation can be paroled without serving the enhancement. SB 1393 would allow the enhancement to be eliminated altogether, before the convicted defendant had even served a day of his or her sentence.

“We believe this is bad public policy that makes our communities less safe.”

1. Related Legislation:
   
   1. SB 1279 (Bradford), would, with exceptions, as specified, limit the maximum term of imprisonment to twice the number of years imposed by the trial court as the base term. SB 1279 is awaiting referral by the Assembly Rules Committee.
      
   2. SB 1392 (Mitchell), would eliminate the sentencing enhancement which imposes an additional one-year of imprisonment term for each prior separate prison term or county jail felony term. SB 1392 failed passage on the Senate Floor.
      
   3. SB 1025 (Skinner), would permit a court to grant probation for specified drug offenses. SB 1025 is awaiting referral by the Assembly Rules Committee.
      
2. Prior Legislation:
   
   1. SB 180 (Mitchell), Chapter 677, Statutes of 2017, limits the three year enhancement for a prior conviction related to the sale or possession for sale of specified controlled substance to convictions for a controlled substance offense where a minor was used or employed in the commission of the offense.
      
   2. SB 620 (Bradford), Chapter 682, Statutes of 2017, allows a court, in the interest of justice, to strike or dismiss a firearm enhancement which otherwise adds a state prison term of three, four, or 10 years, or five, six, or 10 years, depending on the firearm, or a state prison term of 10 years, 20 years, or 25-years-to-life depending on the underlying offense and manner of use.
      
   3. SB 966 (Mitchell), of the 2015-2016 Legislative Session, would have limited the three year enhancement for prior conviction of specified controlled substance offenses to convictions for the manufacture of a controlled substance, or using or employing a minor in the commission of specified controlled substance offenses. SB 966 failed in the Assembly Public Safety Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union of California (Co-sponsor)

California Coalition for Women Prisoners (Co-sponsor)

Californians United for a Responsible Budget (Co-sponsor)
Coalition for Humane Immigrant Rights (Co-sponsor)

Drug Policy Alliance (Co-sponsor)

Ella Baker Center for Human Rights (Co-sponsor)

Friends Committee on Legislation of California (Co-sponsor)

Pillars of the Community (Co-sponsor)
The Advocacy Fund (Co-sponsor)

The Women’s Foundation of California, Women ‘s Policy Institute (Co-sponsor)
American Friends Service Committee
Alliance San Diego
A New Path
A New Way of Life Reentry Project
Asian Americans Advancing Justice – California
Bay Area Chapter of Resource Generation
Bay Area Equal Voice Coalition
Black Caucus of the California Community Colleges
Bend the Arc Jewish Action

Berkeley Underground Scholars

BOLD Women’s Leadership Network
California Association of Alcohol and Drug Program Executives
California Calls
California Catholic Conference
California Immigrant Policy Center
California Public Defenders Association
California School-Based Health Alliance
Californians for Safety and Justice
Center for Employment Opportunities
Center for Living and Learning
Center for the Study of Racism, Social Justice & Health
Center on Juvenile and Criminal Justice
Coleman Advocates for Children & Youth
Community Works West
Contra Costa County Racial Justice Coalition
Courage Campaign
Crossroads, Inc.
Daily Kos
East Bay Community Law Center
Equal Justice Society

Essie Justice Group
Fair Chance Project
Fathers and Families of San Joaquin
Felony Murder Elimination Project
Harm Reduction Coalition
Harm Reduction Services
Human Impact Partners
Immigrant Legal Resource Center
Justice Now
Law Enforcement Action Partnership
Lawyers’ Committee for Civil Rights
Los Angeles Regional Reentry Partnership
Mayor of Los Angeles, Eric Garcetti
MILPA
National Association of Social Workers, California Chapter
Oakland Law Collaborative
Our Family Coalition
Partnership for the Advancement of New Americans
PICO California
Prison Law Office
Prisoner Advocacy Network
Project Rebound
Rainwater & Associates
Riverside’s All of Us or None
Root & Rebound
San Francisco Public Defenders Office
Showing up for Racial Justice - Bay Area
Showing Up for Racial Justice - Long Beach
Sin Barras
Starting Over, Inc.
Students Against Mass Incarceration at University of California, San Diego
Successful Reentry
Survived & Punished
The Greenlining Institute
Time for Change Foundation
Transitions Clinic Network
UnCommon Law

Venice Community Housing
W. Hayward Burns Institute
Western Center on Law and Poverty
Western Regional Advocacy Project
White People for Black Lives/Showing Up for Racial Justice – Los Angeles

Opposition

California District Attorneys Association
California State Sheriffs’ Association
Los Angeles Police Protective League
Peace Officers Research Association of California
Riverside Sheriffs’ Association

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 1393

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-1, 4/3/18

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Stone

NO VOTE RECORDED: Anderson

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT:

SOURCE: American Civil Liberties Union of California

The Advocacy Fund

California Coalition for Women Prisoners

Californians United for a Responsible Budget

Drug Policy Alliance

Ella Baker Center

Friends Committee on Legislation of California

Pillars of the Community

Women’s Foundation of California

DIGEST:

This bill authorizes a court, in the interest of justice, to strike or dismiss a prior serious felony conviction which otherwise adds an enhancement of 5 years for each prior conviction of a serious felony.

Senate Floor Amendments of 5/9/18 add coauthors.

ANALYSIS:

Existing law:

1. States that any person convicted of a serious felony who previously has been convicted of a serious felony, as defined, shall receive, in addition to the sentence imposed by the court for the present office, a five-year enhancement for each such prior conviction. The terms of the present offense and each enhancement shall run consecutively. (Pen. Code § 667, subd. (a)(1).)
2. Provides that if a defendant has one prior serious and/or violent felony conviction, as defined, that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (Pen. Code, § 667, subd. (e)(1).)
3. Provides that if a defendant has two or more prior serious and/or violent felony convictions, as defined, that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment as specified. (Pen. Code, § 667, subd. (e)(2).)
4. Specifies that the total amount of credits that may be awarded to a person convicted of a serious felony shall not exceed 20% of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison. (Pen. Code, § 667, subd. (c)(5).)
5. Authorizes a judge or magistrate, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, to order an action to be dismissed, as specified. (Pen. Code, § 1385, subd. (a).)
6. Prohibits a judge from striking any prior conviction of a serious felony for purposes of enhancement of a sentence. (Pen. Code, § 1385, subd. (b).)

This bill deletes the prohibition against striking any prior serious felony convictions for purposes of enhancing a sentence.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 5/9/18)

American Civil Liberties Union of California (co-source)

The Advocacy Fund (co-source)

California Coalition for Women Prisoners (co-source)

Californians United for a Responsible Budget (co-source)

Drug Policy Alliance (co-source)

Ella Baker Center for Human Rights (co-source)

Friends Committee on Legislation of California (co-source)

Legal Services for Prisoners with Children (co-source)

Pillars of the Community (co-source)

Women’s Foundation of California (co-source)

Access Support Network

Alameda County Public Defender’s Office

Alliance San Diego

American Friends Service Committee

Asian Americans Advancing Justice – California

Bend the Arc Jewish Action

The Black Caucus of the California Community Colleges

BOLD Women’s Leadership Network

California Association of Alcohol and Drug Program Executives

California Catholic Conference

California Immigrant Policy Center

California Public Defenders Association

Center on Juvenile and Criminal Justice

City of Los Angeles, Mayor Eric Garcetti

Coleman Advocates for Children & Youth

Contra Costa County Racial Justice Coalition

Courage Campaign

Crossroads, Inc.

Daily Kos

Dr. Martin Luther King, Jr. Academic Middle School

East Bay Community Law Center

Fair Chance Project

Felony Murder Elimination Project

Harm Reduction Coalition

Harm Reduction Services

HealthRIGHT 360

Human Impact Partners

Immigrant Legal Resource Center

Justice Now

Lawyers’ Committee for Civil Rights

Los Angeles Regional Reentry Partnership

A New Way of Life Reentry Project

Oakland Law Collaborative

Oakland Rising

Our Family Coalition

Partnership for the Advancement of New Americans

PICO California

Prison Renaissance

Project Rebound

Public Health Justice Collective

Rainwater & Associates, LLC.

Resource Development Associates

Restaurant Opportunities Centers of California

Restore Oakland

Riverside Temple Beth El

Root & Rebound

Rubicon Programs

San Diego Immigrant Rights Consortium

San Francisco Public Defenders Office, Jeff Adachi

Showing up for Racial Justice

St. James Infirmary

Students Against Mass Incarceration at UCSD

Successful Reentry

Survived & Punished

Tarzana Treatment Centers, Inc.

Time for Change Foundation

Underground Scholars, University of California Berkeley

W. Hayward Burns Institute

Western Center on Law and Poverty

White People for Black Lives/Showing Up for Racial Justice – Los Angeles

Several individuals

OPPOSITION: (Verified 5/9/18)

Association for Los Angeles Deputy Sheriffs

California District Attorneys Association

California Police Chiefs Association

California State Sheriffs’ Association

Los Angeles Police Protective League

Peace Officers Research Association of California

ARGUMENT IN SUPPORT: According to Drug Policy Alliance, a co-sponsor of this bill, “SB 1393 is a modest, incremental reform that corrects a costly inconsistency in state law. The bill will provide for judicial discretion in sentencing a person convicted for a second or subsequent serious offense. Current law inappropriately ties a judge’s hands, requiring that the court, when imposing a sentence for a serious felony, in addition and consecutive to the term imposed for that serious felony, to impose an additional 5-year enhancement for each prior conviction of a serious felony. This is above and in addition to “strike enhancements” that may also be applied to persons who have been previously convicted of a serious offense.

“California law generally authorizes a judge, in the interests of justice, to order an action dismissed. SB 1393 will return to the court, appropriate authority to sentence according to the facts of the case, in the interests of justice. It does not affect the base sentence, or [any] another enhancements. It allows the judge to impose the five-year enhancement if they believe it to be just and necessary.”

ARGUMENT IN OPPOSITION: According to Peace Officers Research Association of California, “Current law requires the court, when imposing a sentence for a serious felony, in addition and consecutive to the term imposed for that serious felony, to impose a 5-year enhancement for each prior conviction of a serious felony. Existing law generally authorizes a judge, in the interests of justice, to order an action dismissed, but precludes a judge from striking any prior serious felony conviction in connection with imposition of the 5-year enhancement. This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of the 5-year enhancement described above and would make conforming changes.”

Prepared by:

5/11/18 12:41:49

**** END ****

 THIRD READING  

Bill No: SB 1393

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-1, 4/3/18

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Stone

NO VOTE RECORDED: Anderson

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT:

SOURCE: American Civil Liberties Union of California

The Advocacy Fund

California Coalition for Women Prisoners

Californians United for a Responsible Budget

Drug Policy Alliance

Ella Baker Center

Friends Committee on Legislation of California

Legal Services for Prisoners with Children

Pillars of the Community

Women’s Foundation of California

DIGEST: This bill authorizes a court, in the interest of justice, to strike or dismiss a prior serious felony conviction which otherwise adds an enhancement of 5 years for each prior conviction of a serious felony.

ANALYSIS:

Existing law:

1. States that any person convicted of a serious felony who previously has been convicted of a serious felony, as defined, shall receive, in addition to the sentence imposed by the court for the present office, a five-year enhancement for each such prior conviction. The terms of the present offense and each enhancement shall run consecutively. (Pen. Code § 667, subd. (a)(1).)
2. Provides that if a defendant has one prior serious and/or violent felony conviction, as defined, that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (Pen. Code, § 667, subd. (e)(1).)
3. Provides that if a defendant has two or more prior serious and/or violent felony convictions, as defined, that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment as specified. (Pen. Code, § 667, subd. (e)(2).)
4. Specifies that the total amount of credits that may be awarded to a person convicted of a serious felony shall not exceed 20% of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison. (Pen. Code, § 667, subd. (c)(5).)
5. Authorizes a judge or magistrate, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, to order an action to be dismissed, as specified. (Pen. Code, § 1385, subd. (a).)
6. Prohibits a judge from striking any prior conviction of a serious felony for purposes of enhancement of a sentence. (Pen. Code, § 1385, subd. (b).)

This bill deletes the prohibition against striking any prior serious felony convictions for purposes of enhancing a sentence.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 4/17/18)

American Civil Liberties Union of California (co-source)

The Advocacy Fund (co-source)

California Coalition for Women Prisoners (co-source)

Californians United for a Responsible Budget (co-source)

Drug Policy Alliance (co-source)

Ella Baker Center for Human Rights (co-source)

Friends Committee on Legislation of California (co-source)

Legal Services for Prisoners with Children (co-source)

Pillars of the Community (co-source)

Women’s Foundation of California (co-source)

Access Support Network

Alameda County Public Defender’s Office

Alliance San Diego

American Friends Service Committee

Asian Americans Advancing Justice – California

Bend the Arc Jewish Action

The Black Caucus of the California Community Colleges

BOLD Women’s Leadership Network

California Association of Alcohol and Drug Program Executives

California Catholic Conference

California Immigrant Policy Center

California Public Defenders Association

Center on Juvenile and Criminal Justice

City of Los Angeles, Mayor Eric Garcetti

Coleman Advocates for Children & Youth

Contra Costa County Racial Justice Coalition

Courage Campaign

Crossroads, Inc.

Daily Kos

Dr. Martin Luther King, Jr. Academic Middle School

East Bay Community Law Center

Fair Chance Project

Felony Murder Elimination Project

Harm Reduction Coalition

Harm Reduction Services

HealthRIGHT 360

Human Impact Partners

Immigrant Legal Resource Center

Justice Now

Lawyers’ Committee for Civil Rights

Los Angeles Regional Reentry Partnership

A New Way of Life Reentry Project

Oakland Law Collaborative

Oakland Rising

Our Family Coalition

Partnership for the Advancement of New Americans

PICO California

Prison Renaissance

Project Rebound

Public Health Justice Collective

Rainwater & Associates, LLC

Resource Development Associates

Restaurant Opportunities Centers of California

Restore Oakland

Riverside Temple Beth El

Root & Rebound

Rubicon Programs

San Diego Immigrant Rights Consortium

San Francisco Public Defenders Office, Jeff Adachi

Showing up for Racial Justice

St. James Infirmary

Students Against Mass Incarceration at UCSD

Successful Reentry

Survived & Punished

Tarzana Treatment Centers, Inc.

Time for Change Foundation

Underground Scholars, University of California Berkeley

W. Hayward Burns Institute

Western Center on Law and Poverty

White People for Black Lives/Showing Up for Racial Justice – Los Angeles

Several individuals

OPPOSITION: (Verified 4/17/18)

Association for Los Angeles Deputy Sheriffs

California District Attorneys Association

California Police Chiefs Association

California State Sheriffs’ Association

Los Angeles Police Protective League

Peace Officers Research Association of California

ARGUMENT IN SUPPORT: According to Drug Policy Alliance, a co-sponsor of this bill, “SB 1393 is a modest, incremental reform that corrects a costly inconsistency in state law. The bill will provide for judicial discretion in sentencing a person convicted for a second or subsequent serious offense. Current law inappropriately ties a judge’s hands, requiring that the court, when imposing a sentence for a serious felony, in addition and consecutive to the term imposed for that serious felony, to impose an additional 5-year enhancement for each prior conviction of a serious felony. This is above and in addition to “strike enhancements” that may also be applied to persons who have been previously convicted of a serious offense.

“California law generally authorizes a judge, in the interests of justice, to order an action dismissed. SB 1393 will return to the court, appropriate authority to sentence according to the facts of the case, in the interests of justice. It does not affect the base sentence, or [any] another enhancements. It allows the judge to impose the five-year enhancement if they believe it to be just and necessary.”

ARGUMENT IN OPPOSITION: According to Peace Officers Research Association of California, “Current law requires the court, when imposing a sentence for a serious felony, in addition and consecutive to the term imposed for that serious felony, to impose a 5-year enhancement for each prior conviction of a serious felony. Existing law generally authorizes a judge, in the interests of justice, to order an action dismissed, but precludes a judge from striking any prior serious felony conviction in connection with imposition of the 5-year enhancement. This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of the 5-year enhancement described above and would make conforming changes.”

Prepared by:

4/18/18 14:29:42

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 1393 Hearing Date: April 3, 2018

Subject: Sentencing

HISTORY

Source: American Civil Liberties Union (ACLU) of California

The Advocacy Fund

California Coalition for Women Prisoners

Californians United for a Responsible Budget

Drug Policy Alliance

Ella Baker Center

Friends Committee on Legislation of California

Pillars of the Community

Women’s Foundation of California

Prior Legislation: SB 180 (Mitchell), Ch. 677, Stats. 2017

SB 620 (Bradford), Ch. 682, Stats. 2017

SB 966 (Mitchell), 2015-2016, failed Assembly Public Safety Committee

Support: Access Support Network; Alameda County Public Defender’s Office; Alliance San Diego; American Friends Service Committee; California Association of Alcohol and Drug Program Executives; California Catholic Conference; California Immigrant Policy Center; California Public Defenders Association; Center on Juvenile and Criminal Justice; Coleman Advocates for Children & Youth; Contra Costa County Racial Justice Coalition; Courage Campaign; Crossroads, Inc.; Daily Kos; Dr. Martin Luther King, Jr. Academic Middle School; Felony Murder Elimination Project; Harm Reduction Coalition; Harm Reduction Services; HealthRIGHT 360; Immigrant Legal Resource Center; Justice Now; Lawyers’ Committee for Civil Rights; Legal Services for Prisoners with Children; Los Angeles Regional Reentry Partnership; A New Way of Life Reentry Project; Oakland Rising; Prison Renaissance; Public Health Justice Collective; Restaurant Opportunities Centers of California; Riverside Temple Beth El; Root & Rebound; Rubicon Programs; San Diego Immigrant Rights Consortium; San Francisco Public Defenders Office; Showing up for Racial Justice; St. James Infirmary; Successful Reentry; Tarzana Treatment Centers, Inc.; W. Hayward Burns Institute; Western Center on Law and Poverty; White People for Black Lives/Showing Up for Racial Justice – Los Angeles; several individuals

Opposition: Association for Los Angeles Deputy Sheriffs; California District Attorneys Association; California State Sheriffs’ Association; Los Angeles Police Protective League; Peace Officers Research Association of California

PURPOSE

The purpose of this bill is to allow a court, in the interest of justice, to strike or dismiss a prior serious felony conviction which otherwise adds an enhancement of 5 years for each prior conviction of a serious felony.

Existing law states that any person convicted of a serious felony who previously has been convicted of a serious felony, as defined, shall receive, in addition to the sentence imposed by the court for the present office, a five-year enhancement for each such prior conviction. The terms of the present offense and each enhancement shall run consecutively. (Pen. Code § 667, subd. (a)(1).)

Existing law provides that if a defendant has one prior serious and/or violent felony conviction, as defined, that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (Pen. Code, § 667, subd. (e)(1).)

Existing law provides that if a defendant has two or more prior serious and/or violent felony convictions, as defined, that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment as specified. (Pen. Code, § 667, subd. (e)(2).)

Existing law specifies that the total amount of credits that may be awarded to a person convicted of a serious felony shall not exceed 20% of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison. (Pen. Code, § 667, subd. (c)(5).)

Existing law authorizes a judge or magistrate, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, to order an action to be dismissed, as specified. (Pen. Code, § 1385, subd. (a).)

Existing law prohibits a judge from striking any prior conviction of a serious felony for purposes of enhancement of a sentence. (Pen. Code, § 1385, subd. (b).)

This bill deletes the prohibition against striking any prior serious felony convictions for purposes of enhancing a sentence.

COMMENTS

1. Need for This Bill

According to the author:

Nearly every sentence enhancement in California can be dismissed at the time of sentencing if the judge finds that doing so would serve the interest of justice. However, under existing law people with current and prior serious felony convictions receive a mandatory five-year enhancement. As a result, judges lack the discretion to tailor these sentences based on the facts of the case, the defendant’s history and culpability or other potential mitigating factors. This has resulted in mandatory additional terms for thousands of individuals incarcerated throughout California’s prisons. This rigid and arbitrary system has meted out punishments that are disproportionate to the offense, which does not serve the interests of justice, public safety, or communities.

SB1393 amends Penal Code Sections 667 and 1385 by restoring the court’s discretion, in the interest of justice, to strike a five-year sentence enhancement for each prior serious felony conviction on a person’s record, when a person is currently convicted of a serious felony. Allowing judicial discretion is consistent with other sentence enhancement laws and retains existing penalties for serious crimes.

1. Sentencing Enhancements

Existing law contains a variety of enhancements that can be used to increase the term of imprisonment a defendant will serve. Multiple enhancements can be imposed in a single case. Enhancements can range from adding a specified number of years to a person’s sentence, or doubling a person’s sentence or even converting a determinate sentence into a life sentence.

According to a recent Public Policy Institute of California (PPIC) publication on enhancements,

Overall, California has more than 100 separate code sections that enhance sentences based on the current offense or the offender’s record. For example, using a firearm while committing a violent and/or sexual felony adds anywhere from 10 to 25 years. A gang-related felony results in 2 to 10 additional years, depending upon the seriousness of the offense.

As of September 2016, 79.9% of prisoners in institutions operated by the California Department of Corrections and Rehabilitation (CDCR) had some kind of sentence enhancement; 25.5% had three or more.

(Sentence Enhancements: Next Target of Corrections Reform? PPIC (Sept. 2017) <http://www.ppic.org/blog/sentence-enhancements-next-target-corrections-reform/> [as of Mar. 21, 2018].) CDCR data indicates that, as of December 1, 2017, there were 19,677 sentences that included the 5-year enhancement.

This bill provides the judge with discretion to strike a prior serious felony conviction in appropriate circumstances in the interests of justice. The judge retains the ability to continue imposing the enhancement where the additional punishment is warranted. The reasons for the dismissal must be stated orally on the record. If requested by either party, the reasons must also be set forth in a written minute order. (Pen. Code, § 1385, subd. (a).) Where the trial court’s action lacks reason, it may be invalidated as an abuse of discretion. (See People v. Williams, (1998) 17 Cal.4th 148, 159.) For example, in Williams, the Court found that the trial court improperly struck the prior felony because the defendant could not be deemed “outside the spirit” of the three strikes law – i.e., the trial court’s order fell outside the bounds of reason under the applicable law and the relevant facts. (Id. at pp. 161, 162-165.)

Striking a prior conviction pursuant to Penal Code section 1385 does not wipe out the prior conviction, or prevent that conviction from being considered in connection with later convictions; it simply means that the judge made a determination that, in the interest of justice, the defendant should not be required to be sentenced to a statutorily increased penalty. (People v. Ortega (2000) 84 Cal.App.4th 659, 666.)

1. Legislative History

Penal Code section 1385 gives discretion to judges to strike or dismiss a prior conviction or added punishment. The California Supreme Court has ruled that even if a statute prescribing a particular sentence uses the term “shall,” this is insufficient to evidence an intent that the trial court was precluded from exercising such discretionary powers. (See People v. Williams (1981) 30 Cal.3d 470.) In Williams, the Court reviewed the history and purpose of Penal Code section 1385:

The trial court's power to dismiss an action has been recognized by statute since the first session of the Legislature in 1850. The rules of criminal procedure enacted in that session included the provision that "[the] Court may, either of its own motion, or upon the application of the District Attorney, and in furtherance of justice, order any action, after indictment, to be dismissed; but in such case the reasons of the dismissal shall be set forth in the order, which must be entered on the minutes." (Stats. 1850, ch. 119, § 629, p. 323.) With slight changes, this provision became section 1385 when the Penal Code was enacted in 1872.

. . . .

"A determination whether to dismiss in the interests of justice after a verdict involves a balancing of many factors, including the weighing of the evidence indicative of guilt or innocence, the nature of the crime involved, the fact that the defendant has or has not been incarcerated in prison awaiting trial and the length of such incarceration, the possible harassment and burdens imposed upon the defendant by a retrial, and the likelihood, if any, that additional evidence will be presented upon a retrial. When the balance falls clearly in favor of the defendant, a trial court not only may but should exercise the powers granted to him by the Legislature and grant a dismissal in the interests of justice." (People v. Superior Court of Marin County (Howard) (1968) 69 Cal. 2d 491, 505.)

The court also discussed the policy served by [the section at issue in the case]. "Mandatory, arbitrary or rigid sentencing procedures invariably lead to unjust results. Society receives maximum protection when the penalty, treatment or disposition of the offender is tailored to the individual case. Only the trial judge has the knowledge, ability and tools at hand to properly individualize the treatment of the offender. Subject always to legislative control and appellate review, trial courts should be afforded maximum leeway in fitting the punishment to the offender." (People v. Dorsey (1972) 28 Cal.App3d 15, 18.)

(People v. Williams, supra, 30 Cal.3d at 479-482.) The Court then looked to the legislative intent and found that there was no indication of contrary legislative intent and thus held that absent a clear expression of legislative intent in this regard, a sentencing statute will not be construed to abrogate a trial court's general section 1385 power to strike. (Id. at p. 482.)

Similarly, in People v. Fritz (1985) 40 Cal.3d 227, the California Supreme Court held that although the language of Penal Code section 667, subdivision (a)(1) is mandatory – "[any] person convicted of a serious felony . . . shall receive . . . a five-year enhancement for each such

prior conviction" – such language did not eliminate the court’s ability under Penal Code section 1385 to strike or dismiss a conviction in the interests of justice. The Court found that neither Penal Code section 667 or article I, section 28, both enacted by the voters as part of Proposition 8 in the June 1982 election, contained express language eliminating this discretion nor was there anything in the ballot analysis or arguments which were before the voters that suggests such a purpose. (Id. at pp. 230-231.)

In 1986, the California Legislature passed, and the governor signed into law, a bill to abrogate Fritz by specifically restricting the authority of the trial court to strike prior convictions of serious felonies when imposing an enhancement under Section 667 of the Penal Code. (Chapter 85, Statutes of 1986.) This bill deletes this restriction and returns the court’s discretion to strike prior serious felony convictions for purposes of the 5-year enhancement.

1. Argument in Support

Drug Policy Alliance, a sponsor of this bill, writes:

SB 1393 is a modest, incremental reform that corrects a costly inconsistency in state law. The bill will provide for judicial discretion in sentencing a person convicted for a second or subsequent serious offense. Current law inappropriately ties a judge’s hands, requiring that the court, when imposing a sentence for a serious felony, in addition and consecutive to the term imposed for that serious felony, to impose an additional 5-year enhancement for each prior conviction of a serious felony. This is above and in addition to “strike enhancements” that may also be applied to persons who have been previously convicted of a serious offense.

California law generally authorizes a judge, in the interests of justice, to order an action dismissed. SB 1393 will return to the court, appropriate authority to sentence according to the facts of the case, in the interests of justice. It does not affect the base sentence, or [any] another enhancements. It allows the judge to impose the five-year enhancement if they believe it to be just and necessary.

1. Argument in Opposition

The Peace Officers Research Association of California opposes this bill:

Current law requires the court, when imposing a sentence for a serious felony, in addition and consecutive to the term imposed for that serious felony, to impose a 5-year enhancement for each prior conviction of a serious felony. Existing law generally authorizes a judge, in the interests of justice, to order an action dismissed, but precludes a judge from striking any prior serious felony conviction in connection with imposition of the 5-year enhancement. This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of the 5-year enhancement described above and would make conforming changes.

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