AB 1310: Sentencing: recall and resentencing.
- Session Year: 2023-2024
- House: Assembly
- Latest Version Date: 2023-07-13
Current Status:
Failed
(2023-09-01: In committee: Held under submission.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
What does this bill do?
This bill lets people who were convicted on or before January 1, 2018 of extra prison time for personally using or firing a gun seek recall and resentencing, and it allows courts at resentencing to strike or dismiss those gun-related enhancements. The court must appoint a lawyer for the review, and anyone resentenced gets credit for time served and is normally subject to one year of parole unless the court orders otherwise. People who already finished their sentences can apply for reconsideration, and people found not guilty by reason of insanity may petition to reduce their maximum commitment under the same process.
The summary is provided by generative AI which can make mistakes. For original language, please view the details in the table below.
Existing law generally authorizes a court to, in the furtherance of justice, dismiss an enhancement. Existing law makes a person who personally uses a firearm in the commission of a felony punishable by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years. Existing law makes a person who personally uses a firearm in the commission of specified felonies punishable by imprisonment in the state prison for an additional and consecutive term of 10 years, and makes them punishable by an additional and consecutive term of imprisonment of 20 years if they discharge the firearm. Existing law makes a person who discharges a firearm and causes great bodily injury in the commission of specified felonies punishable by an additional and consecutive term of imprisonment of 25 years to life. Existing law, until January 1, 2018, prohibited courts from striking those firearm enhancements. Existing law on and after January 1, 2022, requires a court to dismiss an enhancement if it is in furtherance of justice to do so, except as specified.
This bill would require the Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator to identify persons in custody, who, on or before January 1, 2018, suffered a conviction of those firearm enhancements. By requiring county correctional administrators to identify qualifying persons in custody, this bill would impose a state-mandated local program. Upon determining the person qualifies for resentencing, the bill would require the trial court to appoint counsel, counsel and impose a lesser sentence than the one originally imposed, unless the court finds by clear and convincing evidence that a lesser sentence would present an unreasonable risk of danger to public safety. authorize the court to strike or dismiss an enhancement, as specified. By imposing additional duties on county public defenders, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law generally authorizes a court to, in the furtherance of justice, dismiss an enhancement. Existing law makes a person who personally uses a firearm in the commission of a felony punishable by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years. Existing law makes a person who personally uses a firearm in the commission of specified felonies punishable by imprisonment in the state prison for an additional and consecutive term of 10 years, and makes them punishable by an additional and consecutive term of imprisonment of 20 years if they discharge the firearm. Existing law makes a person who discharges a firearm and causes great bodily injury in the commission of specified felonies punishable by an additional and consecutive term of imprisonment of 25 years to life. Existing law, until January 1, 2018, prohibited courts from striking those firearm enhancements. Existing law on and after January 1, 2022, requires a court to dismiss an enhancement if it is in furtherance of justice to do so, except as specified.
This bill would authorize a person who, on or before January 1, 2018, suffered a conviction of those firearm enhancements to petition the court for resentencing. The bill would require the court during that resentencing to have a presumption for resentencing, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, and would require the court to dismiss those enhancements if it is in the furtherance of justice to do so, except as specified. The bill would require the court to appoint counsel for a hearing under these provisions. require the Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator to identify persons in custody, who, on or before January 1, 2018, suffered a conviction of those firearm enhancements. By requiring county correctional administrators to identify qualifying persons in custody, this bill would impose a state-mandated local program. Upon determining the person qualifies for resentencing, the bill would require the trial court to appoint counsel, and impose a lesser sentence than the one originally imposed, unless the court finds by clear and convincing evidence that a lesser sentence would present an unreasonable risk of danger to public safety. By imposing additional duties on county public defenders, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law generally authorizes a court to, in the furtherance of justice, dismiss an enhancement. Existing law makes a person who personally uses a firearm in the commission of a felony punishable by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years. Existing law makes a person who personally uses a firearm in the commission of specified felonies punishable by imprisonment in the state prison for an additional and consecutive term of 10 years, and makes them punishable by an additional and consecutive term of imprisonment of 20 years if they discharge the firearm. Existing law makes a person who discharges a firearm and causes great bodily injury in the commission of specified felonies punishable by an additional and consecutive term of imprisonment of 25 years to life. Existing law, until January 1, 2018, prohibited courts from striking those firearm enhancements. Existing law on and after January 1, 2022, requires a court to dismiss an enhancement if it is in furtherance of justice to do so, except as specified.
This bill would authorize a person who, on or before January 1, 2022, 2018, suffered a conviction of those firearm enhancements to petition the court for resentencing. The bill would require the court during that resentencing to have a presumption for resentencing, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, and would require the court to dismiss those enhancements if it is in the furtherance of justice to do so, except as specified. The bill would require the court to appoint counsel for a hearing under these provisions. By imposing additional duties on county public defenders, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law generally authorizes a court to, in the furtherance of justice, dismiss an enhancement. Existing law makes a person who personally uses a firearm in the commission of a felony punishable by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years. Existing law makes a person who personally uses a firearm in the commission of specified felonies punishable by imprisonment in the state prison for an additional and consecutive term of 10 years, and makes them punishable by an additional and consecutive term of imprisonment of 20 years if they discharge the firearm. Existing law makes a person who discharges a firearm and causes great bodily injury in the commission of specified felonies punishable by an additional and consecutive term of imprisonment of 25 years to life. Existing law, until January 1, 2018, prohibited courts from striking those firearm enhancements. Existing law on and after January 1, 2022, requires a court to dismiss an enhancement if it is in furtherance of justice to do so, except as specified.
This bill would authorize a person who, on or before January 1, 2022, suffered a conviction of those firearm enhancements to petition the court for resentencing. The bill would require the court during that resentencing to have a presumption for resentencing, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, and would require the court to dismiss those enhancements if it is in the furtherance of justice to do so, except as specified. The bill would require the court to appoint counsel for a hearing under these provisions. By imposing additional duties on county public defenders, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law generally authorizes a court to, in the furtherance of justice, dismiss an enhancement. Existing law makes a person who personally uses a firearm in the commission of a felony punishable by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years. Existing law makes a person who personally uses a firearm in the commission of specified felonies punishable by imprisonment in the state prison for an additional and consecutive term of 10 years, and makes them punishable by an additional and consecutive term of imprisonment of 20 years if they discharge the firearm. Existing law makes a person who discharges a firearm and causes great bodily injury in the commission of specified felonies punishable by an additional and consecutive term of imprisonment of 25 years to life. Existing law, until January 1, 2018, prohibited courts from striking those firearm enhancements. Existing law on and after January 1, 2022, requires a court to dismiss an enhancement if it is in furtherance of justice to do so, except as specified.
This bill would authorize a person who, on or before January 1, 2022, suffered a conviction of those firearm enhancements to petition the court for resentencing. The bill would require the court during that resentencing to have a presumption for resentencing, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, and would require the court to dismiss those enhancements if it is in the furtherance of justice to do so, except as specified. The bill would require the court to appoint counsel for a hearing under these provisions. By imposing additional duties on county public defenders, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law generally authorizes a court to, in the furtherance of justice, dismiss an enhancement. Existing law makes a person who personally uses a firearm in the commission of a felony punishable by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years. Existing law makes a person who personally uses a firearm in the commission of specified felonies punishable by imprisonment in the state prison for an additional and consecutive term of 10 years, and makes them punishable by an additional and consecutive term of imprisonment of 20 years if they discharge the firearm. Existing law makes a person who discharges a firearm and causes great bodily injury in the commission of specified felonies punishable by an additional and consecutive term of imprisonment of 25 years to life. Existing law, until January 1, 2018, prohibited courts from striking those firearm enhancements. Existing law on and after January 1, 2022, requires a court to dismiss an enhancement if it is in furtherance of justice to do so, except as specified.
This bill would authorize a person who, on or before January 1, 2022, suffered a conviction of those firearm enhancements to petition the court for resentencing. The bill would require the court during that resentencing to have a presumption for resentencing, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, and would require the court to dismiss those enhancements if it is in the furtherance of justice to do so, except as specified. The bill would require the court to appoint counsel for a hearing under these provisions. By imposing additional duties on county public defenders, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
(a)A person who, on or before January 1, 2018, suffered a conviction, whether by trial or plea, of an enhancement under Section 12022.5 or 12022.53 is eligible for recall and resentencing. The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county shall identify those persons in their custody currently serving a term for a judgment that includes an enhancement under Section 12022.5 or 12022.53 and shall provide the name of each person, along with the persons date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement. This information shall be provided as follows:
(1)A person who has completed their sentence, after trial or plea and following a judgment that includes a Section 12022.5 or 12022.53 enhancement, may file an application before the trial court that entered the judgment of conviction in their case to have the enhancement conviction or convictions recalled and vacated pursuant to this section.
(2)For persons currently serving a term for a judgment that includes an enhancement under Section 12022.5 or 12022.53, the Secretary of the Department of Corrections and Rehabilitation shall identify those persons in their custody currently serving a term for a judgment that includes an enhancement under Section 12022.5 or 12022.53 and provide the name of each person, along with the persons date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement. This information shall be provided as follows:
(1)(A)By March 1, 2024, for individuals who have served their base term and any other enhancements and are currently serving a sentence based on a Section 12022.5 or 12022.53 enhancement. For purposes of this paragraph, all other enhancements shall be considered to have been served first.
(2)(B)By July 1, 2024, for all other individuals.
(b)Upon receiving the information described in subdivision (a), the court shall review the judgment and verify that the current judgment includes a sentence enhancement under Section 12022.5 or 12022.53. If the court determines that the current judgment includes a Section 12022.5 or 12022.53 enhancement, the court shall appoint counsel for the defendant, recall the sentence, and resentence the defendant. defendant and recall the sentence of the defendant. The review and resentencing shall be completed as follows:
(1)By October 1, 2024, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the enhancement.
(2)By December 1, 2025, for all other individuals.
(c)In exercising its discretion under this section, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in paragraphs (1) to (10) are present. Resentencing pursuant to this section shall result in a lesser sentence, unless the original enhancement was imposed concurrently or stayed and no other provision requires further reduction, or the court finds by clear and convincing evidence that imposing a lesser sentence would present an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.(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.(9)Though a firearm was used in the current offense, it was inoperable or unloaded.(10)The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendants risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.(d)The circumstances listed in subdivision (c) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (c).(e)For the purposes of paragraph (4) of subdivision (c), a mental illness is 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 court may conclude that a defendants 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 defendants 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, the court concludes that the defendants mental illness substantially contributed to the defendants involvement in the commission of the offense.(f)For the purposes of this subdivision, the following terms have the following meanings:(1)Childhood trauma means that as a minor the person experienced physical, emotional, or sexual abuse, physical or emotional neglect. A court may conclude that a defendants childhood trauma 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendants childhood trauma substantially contributed to the defendants involvement in the commission of the offense.(2)Prior victimization means the person was a victim of intimate partner violence, sexual violence, or human trafficking, or the person has experienced psychological or physical trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. A court may conclude that a defendants prior victimization 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendants prior victimization substantially contributed to the defendants involvement in the commission of the offense.(c)The court may, in the interest of justice pursuant to Section 1385 and at the time of resentencing, strike or dismiss an enhancement that was imposed by Section 12022.5 or 12022.53.
(g)(d)A person who is resentenced pursuant to subdivision (c) shall be given credit for time served and shall be subject to parole for one year following completion of their sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole. The person shall be subject to parole supervision by the Department of Corrections and Rehabilitation pursuant to Section 3000.08 and the jurisdiction of the court in the county in which the parolee is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke parole and impose a term of custody.
(h)A person who has completed their sentence for a conviction, whether by trial or plea, of an enhancement described in subdivision (a) may file an application before the trial court that entered the judgment of conviction in their case to have the enhancement conviction or convictions reconsidered pursuant to this section.(i)If the application satisfies the criteria in subdivision (h), the court may vacate the enhancement convictions.(j)(e)If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
(k)(f)This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
(l)(g)Resentencing pursuant to this section does not diminish or abrogate the finality of judgments in any case that does not come within the purview of this section.
(m)(h)A resentencing hearing ordered under this section shall constitute a postconviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsys Law).
(n)(i)(1)A person who is committed to a state hospital after being found not guilty by reason of insanity pursuant to Section 1026 may petition the court to have their maximum term of commitment, as established by Section 1026.5, reconsidered in accordance with this section. Upon receiving a petition under this subdivision, the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the court shall proceed in accordance with this section. In order for the maximum term of commitment to be reduced, the person shall have met all of the criteria for a modification of sentence pursuant to this section, had the person been found guilty.
(2)If a petitioners maximum term of confinement is ordered reduced under this subdivision, the new term of confinement shall provide opportunity to meet requirements provided in subdivision (b) of Section 1026.5. If a petitioners new maximum term of confinement ordered under this section does not provide sufficient time to meet requirements provided in subdivision (b) of Section 1026.5, the new maximum term of confinement may be extended, not more than 240 days from the date the petition is granted, in order to meet requirements provided in subdivision (b) of Section 1026.5.
(o)(j)Resentencing may be granted without a hearing upon stipulation by the parties. Resentencing shall not be denied, nor a stipulation rejected, without a hearing where the parties have an opportunity to address the basis for the intended denial or rejection. If a hearing is held, the defendant may appear remotely and the court may conduct the hearing through the use of remote technology, unless counsel requests their physical presence in court.
SEC. 2.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)A person who, on or before January 1, 2018, suffered a conviction, whether by trial or plea, of an enhancement under Section 12022.5 or 12022.53 may petition for a recall of sentence before the trial court that entered the judgment of conviction in their case to request resentencing. Eligibility for relief pursuant to this section is not dependent on the petitioner currently serving a sentence or having ever served a sentence due to the conviction for the enhancement. is eligible for recall and resentencing. The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county shall identify those persons in their custody currently serving a term for a judgment that includes an enhancement under Section 12022.5 or 12022.53 and shall provide the name of each person, along with the persons date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement. This information shall be provided as follows:
(1)By March 1, 2024, for individuals who have served their base term and any other enhancements and are currently serving a sentence based on a Section 12022.5 or 12022.53 enhancement. For purposes of this paragraph, all other enhancements shall be considered to have been served first.
(2)By July 1, 2024, for all other individuals.
(b)Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the court may strike or dismiss the enhancement and resentence in accordance with those sections as they read on January 1, 2018.(c)If the application satisfies the criteria in subdivision (a), there shall be a presumption favoring resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18. Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.(b)Upon receiving the information described in subdivision (a), the court shall review the judgment and verify that the current judgment includes a sentence enhancement under Section 12022.5 or 12022.53. If the court determines that the current judgment includes a Section 12022.5 or 12022.53 enhancement, the court shall appoint counsel for the defendant, recall the sentence, and resentence the defendant. The review and resentencing shall be completed as follows:
(1)By October 1, 2024, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the enhancement.
(2)By December 1, 2025, for all other individuals.
(d)(c)In exercising its discretion under this section, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in paragraphs (1) to (10) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. Endanger public safety means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. Resentencing pursuant to this section shall result in a lesser sentence, unless the original enhancement was imposed concurrently or stayed and no other provision requires further reduction, or the court finds by clear and convincing evidence that imposing a lesser sentence would present an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.
(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.
(9)Though a firearm was used in the current offense, it was inoperable or unloaded.
(10)The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendants risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.
(e)(d)The circumstances listed in subdivision (d) (c) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (c).
(f)(e)For the purposes of paragraph (4) of subdivision (d), (c), a mental illness is 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 court may conclude that a defendants 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 defendants 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, the court concludes that the defendants mental illness substantially contributed to the defendants involvement in the commission of the offense.
(g)(f)For the purposes of this subdivision, the following terms have the following meanings:
(1)Childhood trauma means that as a minor the person experienced physical, emotional, or sexual abuse, physical or emotional neglect. A court may conclude that a defendants childhood trauma 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendants childhood trauma substantially contributed to the defendants involvement in the commission of the offense.
(2)Prior victimization means the person was a victim of intimate partner violence, sexual violence, or human trafficking, or the person has experienced psychological or physical trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. A court may conclude that a defendants prior victimization 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendants prior victimization substantially contributed to the defendants involvement in the commission of the offense.
(h)(g)A person who is resentenced pursuant to subdivision (b) (c) shall be given credit for time served and shall be subject to parole for one year following completion of their sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole. The person shall be subject to parole supervision by the Department of Corrections and Rehabilitation pursuant to Section 3000.08 and the jurisdiction of the court in the county in which the parolee is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke parole and impose a term of custody.
(i)Resentencing pursuant to this section shall result in a lesser sentence, unless the original enhancement was imposed concurrently or stayed and no other provision requires further reduction. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.(j)(h)A person who has completed their sentence for a conviction, whether by trial or plea, of an enhancement described in subdivision (a) may file an application before the trial court that entered the judgment of conviction in their case to have the enhancement conviction or convictions reconsidered pursuant to this section.
(k)(i)If the application satisfies the criteria in subdivision (j), (h), the court may vacate the enhancement convictions.
(l)(j)If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
(m)(k)This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
(n)(l)Resentencing pursuant to this section does not diminish or abrogate the finality of judgments in any case that does not come within the purview of this section.
(o)(m)A resentencing hearing ordered under this section shall constitute a postconviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsys Law).
(p)(n)(1)A person who is committed to a state hospital after being found not guilty by reason of insanity pursuant to Section 1026 may petition the court to have their maximum term of commitment, as established by Section 1026.5, reconsidered pursuant to a petition filed in accordance with this section. Upon receiving a petition under this subdivision, the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the court shall proceed in accordance with this section. In order for the maximum term of commitment to be reduced, the person shall have met all of the criteria for a modification of sentence pursuant to this section, had the person been found guilty.
(2)If a petitioners maximum term of confinement is ordered reduced under this subdivision, the new term of confinement shall provide opportunity to meet requirements provided in subdivision (b) of Section 1026.5. If a petitioners new maximum term of confinement ordered under this section does not provide sufficient time to meet requirements provided in subdivision (b) of Section 1026.5, the new maximum term of confinement may be extended, not more than 240 days from the date the petition is granted, in order to meet requirements provided in subdivision (b) of Section 1026.5.
(q)The court shall appoint counsel for a hearing pursuant to this section.(r)The parties may waive a resentencing hearing. If the hearing is not waived, the resentencing hearing may be conducted remotely through the use of remote technology, if the defendant agrees.(o)Resentencing may be granted without a hearing upon stipulation by the parties. Resentencing shall not be denied, nor a stipulation rejected, without a hearing where the parties have an opportunity to address the basis for the intended denial or rejection. If a hearing is held, the defendant may appear remotely and the court may conduct the hearing through the use of remote technology, unless counsel requests their physical presence in court.
SEC. 2.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)A person who, on or before January 1, 2022, 2018, suffered a conviction, whether by trial or plea, of an enhancement under Section 12022.5 or 12022.53 may petition for a recall of sentence before the trial court that entered the judgment of conviction in their case to request resentencing. Eligibility for relief pursuant to this section is not dependent on the petitioner currently serving a sentence or having ever served a sentence due to the conviction for the enhancement.
(b)Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the court may strike or dismiss the enhancement and resentence in accordance with those sections as they read on January 1, 2022. 2018.
(c)If the application satisfies the criteria in subdivision (a), there shall be a presumption favoring resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18. Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
(d)In exercising its discretion under this section, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in paragraphs (1) to (10) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. Endanger public safety means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.
(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.
(9)Though a firearm was used in the current offense, it was inoperable or unloaded.
(10)The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendants risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.
(e)The circumstances listed in subdivision (d) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (c).
(f)For the purposes of paragraph (4) of subdivision (d), a mental illness is 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 court may conclude that a defendants 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 defendants 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, the court concludes that the defendants mental illness substantially contributed to the defendants involvement in the commission of the offense.
(g)For the purposes of this subdivision, the following terms have the following meanings:
(1)Childhood trauma means that as a minor the person experienced physical, emotional, or sexual abuse, physical or emotional neglect. A court may conclude that a defendants childhood trauma 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendants childhood trauma substantially contributed to the defendants involvement in the commission of the offense.
(2)Prior victimization means the person was a victim of intimate partner violence, sexual violence, or human trafficking, or the person has experienced psychological or physical trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. A court may conclude that a defendants prior victimization 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendants prior victimization substantially contributed to the defendants involvement in the commission of the offense.
(h)A person who is resentenced pursuant to subdivision (b) shall be given credit for time served and shall be subject to parole for one year following completion of their sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole. The person shall be subject to parole supervision by the Department of Corrections and Rehabilitation pursuant to Section 3000.08 and the jurisdiction of the court in the county in which the parolee is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke parole and impose a term of custody.
(i)Resentencing pursuant to this section shall result in a lesser sentence, unless the original enhancement was imposed concurrently or stayed and no other provision requires further reduction. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.
(j)A person who has completed their sentence for a conviction, whether by trial or plea, of an enhancement described in subdivision (a) may file an application before the trial court that entered the judgment of conviction in their case to have the enhancement conviction or convictions reconsidered pursuant to this section.
(k)If the application satisfies the criteria in subdivision (j), the court may vacate the enhancement convictions.
(l)If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
(m)This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
(n)Resentencing pursuant to this section does not diminish or abrogate the finality of judgments in any case that does not come within the purview of this section.
(o)A resentencing hearing ordered under this section shall constitute a postconviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsys Law).
(p)(1)A person who is committed to a state hospital after being found not guilty by reason of insanity pursuant to Section 1026 may petition the court to have their maximum term of commitment, as established by Section 1026.5, reconsidered pursuant to a petition filed in accordance with this section. In order for the maximum term of commitment to be reduced, the person shall have met all of the criteria for a modification of sentence pursuant to this section, had the person been found guilty.
(2)If a petitioners maximum term of confinement is ordered reduced under this subdivision, the new term of confinement shall provide opportunity to meet requirements provided in subdivision (b) of Section 1026.5. If a petitioners new maximum term of confinement ordered under this section does not provide sufficient time to meet requirements provided in subdivision (b) of Section 1026.5, the new maximum term of confinement may be extended, not more than 240 days from the date the petition is granted, in order to meet requirements provided in subdivision (b) of Section 1026.5.
(q)The court shall appoint counsel for a hearing pursuant to this section.
(r)The parties may waive a resentencing hearing. If the hearing is not waived, the resentencing hearing may be conducted remotely through the use of remote technology, if the defendant agrees.
SEC. 2.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)A person who, on or before January 1, 2022, suffered a conviction, whether by trial or plea, of an enhancement under Section 12022.5 or 12022.53 may petition for a recall of sentence before the trial court that entered the judgment of conviction in their case to request resentencing. Eligibility for relief pursuant to this section is not dependent on the petitioner currently serving a sentence or having ever served a sentence due to the conviction for the enhancement.
(b)Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the court may strike or dismiss the enhancement and resentence in accordance with those sections as they read on January 1, 2022.
(c)If the application satisfies the criteria in subdivision (a), there shall be a presumption favoring resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18. Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
(d)In exercising its discretion under this section, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in paragraphs (1) to (10) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. Endanger public safety means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.
(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.
(9)Though a firearm was used in the current offense, it was inoperable or unloaded.
(10)The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendants risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.
(e)The circumstances listed in subdivision (d) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (c).
(f)For the purposes of paragraph (4) of subdivision (d), a mental illness is 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 court may conclude that a defendants 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 defendants 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, the court concludes that the defendants mental illness substantially contributed to the defendants involvement in the commission of the offense.
(g)For the purposes of this subdivision, the following terms have the following meanings:
(1)Childhood trauma means that as a minor the person experienced physical, emotional, or sexual abuse, physical or emotional neglect. A court may conclude that a defendants childhood trauma 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendants childhood trauma substantially contributed to the defendants involvement in the commission of the offense.
(2)Prior victimization means the person was a victim of intimate partner violence, sexual violence, or human trafficking, or the person has experienced psychological or physical trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. A court may conclude that a defendants prior victimization 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendants prior victimization substantially contributed to the defendants involvement in the commission of the offense.
(h)A person who is resentenced pursuant to subdivision (b) shall be given credit for time served and shall be subject to parole for one year following completion of their sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole. The person shall be subject to parole supervision by the Department of Corrections and Rehabilitation pursuant to Section 3000.08 and the jurisdiction of the court in the county in which the parolee is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke parole and impose a term of custody.
(i)Resentencing pursuant to this section shall result in a lesser sentence, unless the original enhancement was imposed concurrently or stayed and no other provision requires further reduction. If there was a term associated with an enhancement stricken or dismissed pursuant to this section, no additional or substitute term shall be added in its place during resentencing. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.
(j)A person who has completed their sentence for a conviction, whether by trial or plea, of an enhancement described in subdivision (a) may file an application before the trial court that entered the judgment of conviction in their case to have the enhancement conviction or convictions reconsidered pursuant to this section.
(k)If the application satisfies the criteria in subdivision (j), the court may vacate the enhancement convictions.
(l)If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
(m)This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
(n)Resentencing pursuant to this section does not diminish or abrogate the finality of judgments in any case that does not come within the purview of this section.
(o)A resentencing hearing ordered under this section shall constitute a postconviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsys Law).
(p)(1)A person who is committed to a state hospital after being found not guilty by reason of insanity pursuant to Section 1026 may petition the court to have their maximum term of commitment, as established by Section 1026.5, reconsidered pursuant to a petition filed in accordance with this section. In order for the maximum term of commitment to be reduced, the person shall have met all of the criteria for a modification of sentence pursuant to this section, had the person been found guilty.
(2)If a petitioners maximum term of confinement is ordered reduced under this subdivision, the new term of confinement shall provide opportunity to meet requirements provided in subdivision (b) of Section 1026.5. If a petitioners new maximum term of confinement ordered under this section does not provide sufficient time to meet requirements provided in subdivision (b) of Section 1026.5, the new maximum term of confinement may be extended, not more than 240 days from the date the petition is granted, in order to meet requirements provided in subdivision (b) of Section 1026.5.
(q)The court shall appoint counsel for a hearing pursuant to this section.
(r)The parties may waive a resentencing hearing. If the hearing is not waived, the resentencing hearing may be conducted remotely through the use of remote technology, if the defendant agrees.
SEC. 2.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)A person who, on or before January 1, 2022, suffered a conviction, whether by trial or plea, of an enhancement under Section 12022.5 or 12022.53 may petition for a recall of sentence before the trial court that entered the judgment of conviction in their case to request resentencing. Eligibility for relief pursuant to this section is not dependent on the petitioner currently serving a sentence or having ever served a sentence due to the conviction for the enhancement.
(b)Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the court may strike or dismiss the enhancement and resentence in accordance with those sections as they read on January 1, 2022. If the court does exercise its discretion, no additional or substitute term of imprisonment shall be added in its place.
(c)If the application satisfies the criteria in subdivision (a), there shall be a presumption favoring resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18. Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
(d)In exercising its discretion under this section, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in paragraphs (1) to (10) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. Endanger public safety means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.
(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.
(9)Though a firearm was used in the current offense, it was inoperable or unloaded.
(10)The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendants risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.
(e)The circumstances listed in subdivision (d) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (c).
(f)For the purposes of paragraph (4) of subdivision (d), a mental illness is 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 court may conclude that a defendants 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 defendants 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, the court concludes that the defendants mental illness substantially contributed to the defendants involvement in the commission of the offense.
(g)For the purposes of this subdivision, the following terms have the following meanings:
(1)Childhood trauma means that as a minor the person experienced physical, emotional, or sexual abuse, physical or emotional neglect. A court may conclude that a defendants childhood trauma 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendants childhood trauma substantially contributed to the defendants involvement in the commission of the offense.
(2)Prior victimization means the person was a victim of intimate partner violence, sexual violence, or human trafficking, or the person has experienced psychological or physical trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. A court may conclude that a defendants prior victimization 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendants prior victimization substantially contributed to the defendants involvement in the commission of the offense.
(h)A person who is resentenced pursuant to subdivision (b) shall be given credit for time served and shall be subject to parole for one year following completion of their sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole. The person shall be subject to parole supervision by the Department of Corrections and Rehabilitation pursuant to Section 3000.08 and the jurisdiction of the court in the county in which the parolee is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke parole and impose a term of custody.
(i)Resentencing pursuant to this section shall result in a lesser sentence, unless the original enhancement was imposed concurrently or stayed and no other provision requires further reduction. If there was a term associated with an enhancement stricken or dismissed pursuant to this section, no additional or substitute term shall be added in its place during resentencing. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.
(j)A person who has completed their sentence for a conviction, whether by trial or plea, of an enhancement described in subdivision (a) may file an application before the trial court that entered the judgment of conviction in their case to have the enhancement conviction or convictions reconsidered pursuant to this section.
(k)If the application satisfies the criteria in subdivision (j), the court may vacate the enhancement convictions.
(l)If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
(m)This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
(n)Resentencing pursuant to this section does not diminish or abrogate the finality of judgments in any case that does not come within the purview of this section.
(o)A resentencing hearing ordered under this section shall constitute a postconviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsys Law).
(p)(1)A person who is committed to a state hospital after being found not guilty by reason of insanity pursuant to Section 1026 may petition the court to have their maximum term of commitment, as established by Section 1026.5, reconsidered pursuant to a petition filed in accordance with this section. In order for the maximum term of commitment to be reduced, the person shall have met all of the criteria for a modification of sentence pursuant to this section, had the person been found guilty.
(2)If a petitioners maximum term of confinement is ordered reduced under this subdivision, the new term of confinement shall provide opportunity to meet requirements provided in subdivision (b) of Section 1026.5. If a petitioners new maximum term of confinement ordered under this section does not provide sufficient time to meet requirements provided in subdivision (b) of Section 1026.5, the new maximum term of confinement may be extended, not more than 240 days from the date the petition is granted, in order to meet requirements provided in subdivision (b) of Section 1026.5.
(q)The court shall appoint counsel for a hearing pursuant to this section.
(r)The parties may waive a resentencing hearing. If the hearing is not waived, the resentencing hearing may be conducted remotely through the use of remote technology, if the defendant agrees.
SEC. 2.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)A person who, on or before January 1, 2022, suffered a conviction, whether by trial or plea, of an enhancement under Section 12022.5 or 12022.53 may petition for a recall of sentence before the trial court that entered the judgment of conviction in their case to request resentencing. Eligibility for relief pursuant to this section is not dependent on the petitioner currently serving a sentence or having ever served a sentence due to the conviction for the enhancement.
(b)Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the court may strike or dismiss the enhancement and resentence in accordance with those sections as they read on January 1, 2022. If the court does exercise its discretion, no additional or substitute term of imprisonment shall be added in its place.
(c)If the application satisfies the criteria in subdivision (a), there shall be a presumption favoring resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18. Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
(d)In exercising its discretion under this section, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in paragraphs (1) to (10) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. Endanger public safety means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.
(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.
(9)Though a firearm was used in the current offense, it was inoperable or unloaded.
(10)The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendants risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.
(e)The circumstances listed in subdivision (d) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (c).
(f)For the purposes of paragraph (4) of subdivision (d), a mental illness is 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 court may conclude that a defendants 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 defendants 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, the court concludes that the defendants mental illness substantially contributed to the defendants involvement in the commission of the offense.
(g)For the purposes of this subdivision, the following terms have the following meanings:
(1)Childhood trauma means that as a minor the person experienced physical, emotional, or sexual abuse, physical or emotional neglect. A court may conclude that a defendants childhood trauma 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendants childhood trauma substantially contributed to the defendants involvement in the commission of the offense.
(2)Prior victimization means the person was a victim of intimate partner violence, sexual violence, or human trafficking, or the person has experienced psychological or physical trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. A court may conclude that a defendants prior victimization 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendants prior victimization substantially contributed to the defendants involvement in the commission of the offense.
(h)A person who is resentenced pursuant to subdivision (b) shall be given credit for time served and shall be subject to parole for one year following completion of their sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole. The person shall be subject to parole supervision by the Department of Corrections and Rehabilitation pursuant to Section 3000.08 and the jurisdiction of the court in the county in which the parolee is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke parole and impose a term of custody.
(i)Resentencing pursuant to this section shall result in a lesser sentence, unless the original enhancement was imposed concurrently or stayed and no other provision requires further reduction. If there was a term associated with an enhancement stricken or dismissed pursuant to this section, no additional or substitute term shall be added in its place during resentencing. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.
(j)A person who has completed their sentence for a conviction, whether by trial or plea, of an enhancement described in subdivision (a) may file an application before the trial court that entered the judgment of conviction in their case to have the enhancement conviction or convictions reconsidered pursuant to this section.
(k)If the application satisfies the criteria in subdivision (j), the court may vacate the enhancement convictions.
(l)If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
(m)This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
(n)Resentencing pursuant to this section does not diminish or abrogate the finality of judgments in any case that does not come within the purview of this section.
(o)A resentencing hearing ordered under this section shall constitute a postconviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsys Law).
(p)(1)A person who is committed to a state hospital after being found not guilty by reason of insanity pursuant to Section 1026 may petition the court to have their maximum term of commitment, as established by Section 1026.5, reconsidered pursuant to a petition filed in accordance with this section. In order for the maximum term of commitment to be reduced, the person shall have met all of the criteria for a modification of sentence pursuant to this section, had the person been found guilty.
(2)If a petitioners maximum term of confinement is ordered reduced under this subdivision, the new term of confinement shall provide opportunity to meet requirements provided in subdivision (b) of Section 1026.5. If a petitioners new maximum term of confinement ordered under this section does not provide sufficient time to meet requirements provided in subdivision (b) of Section 1026.5, the new maximum term of confinement may be extended, not more than 240 days from the date the petition is granted, in order to meet requirements provided in subdivision (b) of Section 1026.5.
(q)The court shall appoint counsel for a hearing pursuant to this section.
(r)The parties may waive a resentencing hearing. If the hearing is not waived, the resentencing hearing may be conducted remotely through the use of remote technology, if the defendant agrees.
SEC. 2.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
|
Date
|
Status
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|---|---|
| Sep 1, 2023 | In committee: Held under submission. |
| Aug 28, 2023 | In committee: Referred to APPR suspense file. |
| Aug 2, 2023 | In committee: Hearing postponed by committee. |
| Jul 13, 2023 | Read second time and amended. Re-referred to Com. on APPR. |
| Jul 12, 2023 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 3. Noes 1.) (July 11). |
| Jun 26, 2023 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on PUB S. |
| Jun 14, 2023 | Referred to Com. on PUB S. |
| Jun 1, 2023 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 31, 2023 | Read third time. Passed. Ordered to the Senate. (Ayes 41. Noes 19. Page 2073.) |
| May 22, 2023 | Read second time. Ordered to third reading. |
| May 18, 2023 | Read second time and amended. Ordered returned to second reading. |
| May 18, 2023 | From committee: Amend, and do pass as amended. (Ayes 11. Noes 4.) (May 18). |
| Apr 26, 2023 | In committee: Set, first hearing. Referred to APPR. suspense file. |
| Mar 30, 2023 | Re-referred to Com. on APPR. |
| Mar 29, 2023 | Read second time and amended. |
| Mar 28, 2023 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 6. Noes 2.) (March 28). |
| Mar 23, 2023 | Re-referred to Com. on PUB. S. |
| Mar 22, 2023 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Mar 2, 2023 | Referred to Com. on PUB. S. |
| Feb 17, 2023 | From printer. May be heard in committee March 19. |
| Feb 16, 2023 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 28, 2023 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jul 11, 2023 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
|
| May 31, 2023 | AB 1310 McKinnor Assembly Third Reading | Assembly Floor |
Passed |
|
| May 31, 2023 | AB 1310 McKinnor Assembly Third Reading Amend By ESSAYLI Set #1 Motion to Lay on the Table By REYES | Assembly Floor |
Passed |
|
| May 18, 2023 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Mar 28, 2023 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| Aclu California Action | * Support | Jul 11, 2023 |
| All of Us or None | * Support | Mar 28, 2023 |
| California Coalition for Women Prisoners | ** Support | |
| California District Attorneys Association | * Against | Jul 11, 2023 |
| California for Safety and Justice | * Support | Mar 28, 2023 |
| California Public Defender's Association | * Support | Jul 11, 2023 |
| California Resident | * Support | Jul 11, 2023 |
| California State Sheriff's Association | * Against | Jul 11, 2023 |
| Californians United for a Responsible Budget | ** Support | |
| Center for Employment Opportunities | * Support | Mar 28, 2023 |
| Communities United for Restorative Youth Justice | * Support | Jul 11, 2023 |
| Disability Rights California | * Support | Aug 28, 2023 |
| Ella Baker Center | * Support | Jul 11, 2023 |
| Fair Chance Project | ** Support | |
| Friends Committee On Legislation Of California | * Support | Jul 11, 2023 |
| Initiate Justice | * Support | Jul 11, 2023 |
| Legal Services for Prisoners with Children | * Support | Mar 28, 2023 |
| milpa | ** Support | |
| Office of the San Diego District Attorney | * Against | Mar 28, 2023 |
| Riverside Sheriff's Association | * Against | Aug 28, 2023 |
| Root & Rebound | ** Support | |
| San Diegans Against Crime | ** Against | |
| San Diego Deputy District Attorneys Association | ** Against | |
| San Francisco Public Defenders Office | * Support | Mar 28, 2023 |
| Santa Ana Police Officers Association | * Against | Aug 28, 2023 |
| Santa Cruz Barrios Unidos INC. | ** Support | |
| Showing Up For Racial Justice - Bay Area | ** Support | |
| Smart Justice California | * Support | Jul 11, 2023 |
| The W. Haywood Burns Institute | ** Support | |
| Transformative InPrison Workgroup | * Support | Mar 28, 2023 |
| Uncommon Law | ** Support | |
| Underground Grit | ** Support | |
| Young Women's Freedom Center | * Support | Mar 28, 2023 |
SENATE COMMITTEE ON APPROPRIATIONS
Senator Anthony Portantino, Chair
2023 - 2024 Regular Session
AB 1310 (McKinnor) - Sentencing: recall and resentencing
Version: July 13, 2023 | Policy Vote: PUB. S. 3 - 1 |
Urgency: No | Mandate: Yes |
Hearing Date: August 28, 2023 | Consultant: Matthew Fleming |
Bill Summary:
AB 1310 would make persons sentenced under specified firearms enhancements that occurred prior to January 1, 2018 eligible for recall and resentencing. The bill would require the Department of Corrections and Rehabilitation (CDCR) to identify all persons currently serving a term for a judgment that includes such an enhancement and would require the courts to determine whether each person qualifies for resentencing. Upon determining a person qualifies for resentencing, the bill would require the trial court to appoint counsel and authorize the court to strike or dismiss an enhancement, as specified.
Fiscal Impact:
- The Department of Justice (DOJ) reports costs of $3.8 million in 2024-25, $15 million in 2025-26, $14.6 million in 2026-27, and $3.7 million in 2027-28 for additional staffing within the Appeals, Writs and Trials Section (AWT) and the Executive Unit (General Fund).*
- The Judicial Council reports one-time cost pressures ranging from $4 to $9.3 million to the trial courts until 2024-25 in order to determine eligibility for resentencing under AB 1310, appoint counsel as appropriate, and conduct resentencing hearings (Trial Court Trust Fund, General Fund).*
- CDCR reports ongoing costs in the hundreds of thousands for staffing needs to conduct case-by-case reviews to identify incarcerated persons with the CDCR population who may be eligible for resentencing under AB 1310 and process all workload associated with resentencing (General Fund). Potential incarceration savings to the extent people are released early from their prison commitments (General Fund).
* See Staff Comments for additional detail.
Background:
In 1997, the Legislature enacted a sentencing enhancement of 10 years, 20 years, or life for possessing a gun at the time of committing a specified felony, such as robbery, homicide, or certain sex crimes. (AB 4 (Bordonaro), Ch. 503, Stats. 1997.) Under that law, if someone uses a gun while committing one of the identified crimes, their sentence is extended by 10 years, 20 years, or 25 years-to-life, depending on how the gun was used. In addition, AB 4 imposed an additional term of 3, 4, or 10 years for the personal use of a firearm in the commission, or the attempted commission of any felony. If the firearm is an assault weapon or a machine gun, then the additional term is 5, 6, or 10 years. This time period is in addition and consecutive to the punishment that you receive for the underlying felony offense. The firearm need not be operable or loaded.
Existing law 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. SB 81 (Skinner) Chapter 721, Statutes of 2021, provided guidance to courts on when to dismiss enhancements in the interests of justice for sentencings that occur on or after January 1, 2022. The law provided that a court “shall dismiss” an enhancement if it is in the furtherance of justice to do so, unless any initiative statute prohibits such action, and unless dismissal endangers public safety. In exercising its discretion the court must give “great weight” to evidence offered by the defendant to prove any of mitigating circumstances, unless the court finds that dismissal would endanger public safety. Examples of mitigating circumstances include: where the enhancement would result in discriminatory racial impact; where multiple enhancements are alleged in a single case; where the enhancement could result in a sentence exceeding 20 years; and where the enhancement is based on a prior conviction that is over five years old. The statute allows a court to exercise this discretion before, during, or after trial or entry of plea as well as at sentencing.
In 2017, the Legislature passed SB 620 (Bradford), Chapter 682, Statutes of 2017, deleting the prohibitions on striking an allegation or finding under the personal use of a firearm and 10-20-life law. This legislation allowed a court, in the interest of justice, to strike or dismiss a firearm enhancement which otherwise adds a state prison term of 3, 4, or 10 years, or 5, 6, 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.
This bill allows a court to recall and resentence a person who was sentenced prior to the enactment of SB 620 authorizing court discretion in imposing one of these firearm enhancements and requires the court to consider specified mitigating factors subsequently adopted into law by SB 81 when exercising its discretion.
Proposed Law:
- Provides that a person who, on or before January 1, 2018, suffered a conviction, whether by trial or plea, of a specified firearm enhancement is eligible for recall and resentencing.
- Provides that a person who has completed their sentence, after trial or plea and following a judgment that includes a specified firearm enhancement, may file an application to have the enhancement conviction or convictions recalled and vacated.
- Requires CDCR to identify persons in their custody currently serving a term for a judgment that includes a specified firearm enhancement and provide the name of each person, along with the person’s date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement.
- Requires CDCR to identify individuals who have served their base term and any other enhancement and are currently serving a sentence based on the enhancement by October 1, 2024 and by December 1, 2025 for all other individuals.
Related Legislation:
- SB 81 (Skinner), Chapter 721, Statutes of 2021, requires the court to dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal is prohibited by an initiative statute, or unless dismissal endangers public safety.
- 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.
- AB 1509 (Lee), of the 2021-2022 legislative session, would have repealed several firearm enhancements, reduced the penalty for using a firearm in the commission of specified crimes from 10 years, 20 years, or 25-years-to-life to one, two or three years, and authorized recall and resentencing for a person serving a term for these enhancements. AB 1509 was held in the Assembly Appropriations Committee.
- AB 4 (Bordonaro), Chapter 503, Statutes of 1997, 10 year, 20 year, and lifetime enhancements for possession or use of a firearm during the commission of a felony offense, as specified.
Staff Comments:
According to the proponents of AB 1310, there are currently over 37,000 people in CDCR custody with some form of firearm enhancement as part of their sentence. Both the DOJ and the Judicial Council anticipate major fiscal impacts as a result of AB 1310.
The DOJ reports that they anticipate an increase of approximately 5,000 appeals resulting from the passage of AB 1310. In order to accommodate that workload, the DOJ reports that it would need a total of 16.0 Full Time Equivalent (FTE) positions in 2024-25 and 2027-28, and 63.0 FTE in 2025-26 and 2026-27. The AWT anticipates needing up to 28.0 deputy attorneys general and 4.0 supervisors as well 4.0 legal analysts and 23.0 complimenting legal secretaries during 2025-26 through 2026-27. Staffing needs would be lower in 2023-24 as CDCR identifies eligible persons and those persons go through the recall and resentencing process. Similarly, the DOJ expects appeals to taper off by 2027-28. The Executive Unit also anticipates an increase in workload relating to equipment needs for new staff, contracts for experts, tracking probation reports, annual appraisals, assisting with required training, tracking leave balances, and tracking Workday time entry. To address the increase in workload they would require 4.0 FTE in 2026-27 and 2027-28 as well as 1.0 FTE in 2023-24 and 2027-28. Actual costs to the DOJ will depend on the actual number of appeals filed that require litigation by the department.
The Judicial Council reports workload cost pressures resulting from AB 1310, ranging from $4 to $9.3 million. For purposes of their estimate, the JCC assumed 75% of the 37,000+ persons currently serving a term of imprisonment at a CDCR facility would be eligible for resentencing and that 10% – 15% of those would require a hearing. Actual costs to the Judicial Branch will depend on how many people are eligible for recall and resentencing and necessitate a hearing on the issues, as well as how complex and lengthy such hearings are. Although courts are not funded on the basis of workload, increased pressure on the trial courts and staff may create a need for increased funding for courts from the General Fund to perform existing duties. Numerous trial court operations are funded through the imposition and collection of criminal fines and fees. However, the Legislature has reduced and eliminated criminal fines and fees over the past decade. As a result, the 2023-24 budget includes an ongoing annual allocation of $105.1 million backfill from the General Fund in order to address declining revenue to the Trial Court Trust Fund.
-- END --
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Aisha Wahab, Chair
2023 - 2024 Regular
Bill No: AB 1310 Hearing Date: July 11, 2023
Author: | McKinnor | ||
Version: | June 26, 2023 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | SC | ||
Subject: Sentencing: recall and resentencing
HISTORY
Source: Initiate Justice
Prior Legislation: SB 81 (Skinner), Ch. 721, Stats. 2021
SB 620 (Bradford), Ch. 682, Stats. 2017
AB 4 (Bordonaro), Ch. 503, Stats. 1997
Support: ACLU California Action; California Attorneys for Criminal Justice; California Public Defenders Association; Californians United for a Responsible Budget; Ella Baker Center for Human Rights; Families Against Mandatory Minimums Foundation; Initiate Justice Action; Legal Services for Prisoners With Children; MILPA; Showing Up for Racial Justice Bay Area; Smart Justice California
Opposition: Arcadia Police Officers’ Association; Burbank Police Officers’ Association; California District Attorneys Association; California Reserve Peace Officers Association; California State Sheriffs’ Association; Claremont Police Officers Association; Corona Police Officers Association; Culver City Police Officers’ Association; Deputy Sheriffs’ Association of Monterey County; Fullerton Policer Officers’ Association; Murrieta Police Officers’ Association; Newport Beach Police Association; Novato Police Officers Association; Palos Verdes Police Officers Association; Placer County Deputy Sheriffs’ Association; Pomona Police Officers’ Association; Riverside Police Officers Association; Riverside Sheriffs’ Association; San Diegan Against Crime; San Diego County District Attorney’s Office; San Diego Deputy District Attorneys Association; Santa Ana Police Officers Association; Upland Police Officers Association; Ventura County District Attorney’s Office
Assembly Floor Vote: 41 - 19
This Analysis Reflects the Bill as Proposed to be Amended
PURPOSE
The purpose of this bill is to allow a person whose sentence included the imposition of a term for specified firearm enhancements to be considered for recall and resentencing.
Existing law provides that any person who personally uses a firearm in the commission or attempted commission of a felony, in addition and consecutive to the punishment for the underlying felony offense, shall be sentenced to a term of 3, 4, or 10 years in state prison, unless the use of a firearm is an element of the offense for which they are convicted. A person who personally uses an assault weapon or machine gun during the commission of a felony or attempted felony is subject to an additional consecutive term of 5, 6 or 10 years in state prison. (Pen. Code, § 12022.5, subds. (a) & (b).)
Existing law provides for the 10-20-life firearm law. A person who personally uses a firearm, whether or not the firearm was operable or loaded, during the commission of certain enumerated offenses is subject to an additional consecutive term of 10 years in prison. If the firearm is personally and intentionally discharged during the crime, the defendant is subject to an additional consecutive term of 20 years in prison. If discharging the firearm results in great bodily injury (GBI) or death, the defendant is subject to an additional, consecutive term of 25-years-to-life in prison. (Pen. Code, § 12022.53, subds. (b)-(d).)
Existing law states that if the offense is gang-related, the 10-20-life firearm enhancements shall apply to every principal in the commission of the offense. An enhancement for participation in a criminal street gang shall not be imposed in addition to an enhancement under this provision, unless the person personally used or personally discharged a firearm in the commission of the specified offense. (Pen. Code, § 12022.53, subds. (e)(1) & (e)(2).)
Existing law provides that only one additional term of imprisonment under the 10-20-life firearm law shall be imposed per person per crime. An enhancement for use of a firearm shall not be imposed on a person in addition to an enhancement under this provision. (Pen. Code, § 12022.53, subd. (f).)
Existing law states that when two or more enhancements may be imposed for being armed with or using a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. (Pen. Code, § 1170.1, subd, (f).)
Existing law states that, notwithstanding any other law, the sentencing court “shall dismiss” an enhancement “if it is in the furtherance of justice to do so” except if dismissal of that enhancement is prohibited by any initiative statute. (Pen. Code, § 1385, subd. (c)(1).)
Existing law instructs the court to consider the following factors in determining whether it is in the interests of justice to dismiss an enhancement:
- Application of the enhancement would result in a discriminatory racial impact, as specified;
- Multiple enhancements are alleged in a single case, in which case all enhancements but one shall be dismissed;
- Application of the enhancement could result in a sentence of over 20 years, in which case the enhancement shall be dismissed;
- The current offense is connected to mental illness, as specified;
- The current offense is connected to prior victimization or childhood trauma, as specified;
- The current offense is not a violent felony, as specified;
- 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;
- The enhancement is based on a prior conviction that is over five years old;
- Though a firearm was used in the current offense, it was inoperable or unloaded. (Pen. Code, § 1385, subd. (c)(3)(A)-(I).)
Existing law states that proof of the presence of one or more of those mitigating circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would “endanger public safety,” meaning that there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. (Pen. Code, § 1385, subd. (c)(2).)
Existing law provides that no part of the Penal Code is retroactive, unless expressly so declared. (Pen. Code, § 3.)
This bill makes a person who, on or before January 1, 2018, suffered a conviction of an enhancement for personal use of a firearm or the 10-20-life firearm law eligible for recall and resentencing.
This bill requires the Secretary of the Department of Corrections and Rehabilitation (CDCR) to identify persons in their custody currently serving a term for a sentencing that includes an enhancement for personal use of a firearm or the 10-20-life firearm law and provide the following information to the sentencing court that imposed the enhancement:
- The name of each person,
- The person’s date of birth; and,
- The relevant case number or docket number.
This bill provides the following timelines for providing this information to the sentencing court:
- By March 1, 2024, for individuals who have served their base term and any other enhancements and are currently serving a sentence based on a Section 12022.5 or 12022.53 enhancement. For purposes of this paragraph, all other enhancements shall be considered to have been served first; and,
- By July 1, 2024, for all other individuals.
This bill states that upon receiving the information from CDCR, the court shall review the judgement and verify that the current judgment includes a sentence enhancement for personal use of a firearm or the 10-20-life firearm law.
This bill provides that if the court determines that the current judgment includes a sentence enhancement for personal use of a firearm or the 10-20-life firearm law, the court shall appoint counsel for the defendant and recall the sentence.
This bill requires the review and resentencing by the sentencing court to be completed as follows:
- By October 1, 2024, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the enhancement; and,
- By December 1, 2025, for all other individuals.
This law provides that in exercising its discretion under this section, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the following mitigating circumstances:
- Application of the enhancement would result in a discriminatory racial impact as described in in the Racial Justice Act;
- Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed;
- The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed;
- The current offense is connected to mental illness;
- The current offense is connected to prior victimization or childhood trauma;
- The current offense is not a violent felony as defined;
- 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;
- The enhancement is based on a prior conviction that is over five years old;
- Though a firearm was used in the current offense, it was inoperable or unloaded; or,
- The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.
This bill provides that the circumstances listed above are not exclusive.
This bill specifies that for purposes of whether a the offense was connected to mental illness, a mental illness is 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 court 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, the court concludes that the defendant’s mental illness substantially contributed to the defendant’s involvement in the commission of the offense.
This bill defines “childhood trauma” to means “that as a minor the person experienced physical, emotional, or sexual abuse, physical or emotional neglect. A court may conclude that a defendant’s childhood trauma 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendant’s childhood trauma substantially contributed to the defendant’s involvement in the commission of the offense.”
This bill defines “prior victimization” to mean the person was a victim of intimate partner violence, sexual violence, or human trafficking, or the person has experienced psychological or physical trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. A court may conclude that a defendant’s prior victimization 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendant’s prior victimization substantially contributed to the defendant’s involvement in the commission of the offense.
This bill requires a person who is resentenced to be given credit for time served and to be subject to parole for one year following completion of their sentence, unless the court in its discretion, as part of its resentencing order, releases the person from parole.
This bill provides that a person shall be subject to parole supervision by CDCR and the jurisdiction of the court in the county in which the parolee is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke parole and impose a term of custody.
This bill authorizes a person who has completed their sentence that includes an enhancement for personal use of a firearm or the 10-20-life firearm law to file an application before the trial court that entered the judgment of conviction in their case to have the enhancement conviction reconsidered pursuant to the provisions in this bill.
This bill states that if the judge that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
This bill provides that the bill’s provisions do not diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant nor does resentencing diminish or abrogate the finality of judgments in any case that does not come within the purview of this bill’s provisions.
This bill clarifies that a resentencing hearing ordered under the provisions of this bill constitutes a “postconviction proceeding” for purposes of Marsy’s Law.
This bill authorizes a person committed to a state hospital after being found not guilty by reason of insanity to petition the court to have their maximum term of commitment reconsidered, as provided.
This bill provides that resentencing may be granted without a hearing upon stipulation by the parties; however resentencing shall not be denied, nor a stipulation rejected, without a hearing where the parties have an opportunity to address the basis for the intended denial or rejection.
This bill states that if a hearing is held, the defendant may appear remotely and the court may conduct the hearing through the use of remote technology, unless counsel requests their physical presence in court.
COMMENTS
- Need for This Bill
According to the author of this bill:
Firearm enhancements are one of the most commonly used tools to add extra years to a sentence. The latest available data shows that 37,237 people in CDCR custody had some form of gun enhancement as part of their sentence. 89% of these people are people of color. There is no compelling evidence that indicate that gun enhancements improve public safety. In fact, the opposite may be true. While initial incarceration prevents crime through incapacitation, studies show that each additional sentence year causes a 4 to 7 percent increase in recidivism that eventually outweighs the incapacitation benefit.
Enhancements do not increase public safety and there is no data to support that enhancements deter crime. Research has consistently shown that people age out of crime, so by the time the state has sentenced someone to an extremely long sentence, they have reached an age where they no longer pose a threat to public safety.
This bill will ensure that people receive equal treatment under the law by allowing past legislation to be applied retroactively. Public safety will not be jeopardized because judges will retain full discretion and prosecutors will have the opportunity to prove that someone is an unreasonable risk to public safety and unfit to be resentenced.
- The 10-20-life Firearm Enhancement
In 1997, the Legislature enacted Penal Code section 12022.53 which required a sentencing enhancement of 10-20-life for possessing a gun at the time of committing a specified felony, such as robbery, homicide, or certain sex crimes. (AB 4 (Bordonaro), Ch. 503, Stats. 1997.) Under the law, if someone uses a gun while committing one of the identified crimes, their sentence is extended by 10 years, 20 years, or 25 years-to-life, depending on how the gun was used.
“Often the enhancement for gun use is longer than the sentence for the crime itself. For example, in the case of second-degree robbery, a person could serve a maximum of five years for the robbery and an extra 10 years for brandishing a gun during the robbery, even if the gun was unloaded or otherwise inoperable. Someone convicted of first-degree murder would be sentenced to at least 50 years-to-life if a gun was used, whereas if the murder was carried out using another method – such as strangulation – the sentence would be half the length (25 years-to-life). A judge has no discretion in applying this enhancement; if a gun was used, a judge must apply it.” (California Budget and Policy Center (2015) Sentencing in California: Moving Toward a Smarter, More Cost-Effective Approach.)
Deterrence was a driving factor behind this legislation: “The Legislature finds and declares that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and to deter violent crime.” (AB 4 (Bordonaro), Chapter 503, Statutes of 1997.)
This bill would allow recall and resentencing in cases where a section 12022.53 enhancement was imposed at any time prior to January 1, 2018. A person in custody would have their case referred to the sentencing court by CDCR; a person who has completed their sentence would be authorized to file a petition with the trial court.
- Personal Use of a Firearm Enhancement
Penal Code section 12022.5 imposes an additional term of 3, 4, or 10 years for the personal use of a firearm in the commission, or the attempted commission of any felony. (Pen. Code, § 12022.5, subd. (a).) If the firearm is an assault weapon or a machine gun, then the additional term is 5, 6, or 10 years. (Pen. Code, § 12022.5, subd. (b).) This time period is in addition and consecutive to the punishment that you receive for the underlying felony offense. The firearm need not be operable or loaded. (People v. Nelums (1982) 31 Cal.3d 355, 360; see People v. Steele (1991) 235 Cal.App.3d 788, 791–795.) Someone personally uses a firearm if he or she intentionally displays the firearm in a menacing manner, hits someone with the firearm, or fires the firearm. (People v. Bland (1995) 10 Cal.4th 991, 997; People v. Johnson (1995) 38 Cal.App.4th 1315, 1319–1320; see also Pen. Code, § 1203.06, subd. (b)(2).)
This bill would allow recall and resentencing in cases where a section 12022.5 enhancement was imposed at any time prior to January 1, 2018. A person in custody would have their case referred to the sentencing court by CDCR; a person who has completed their sentence would be authorized to file a petition with the trial court.
- Judicial Discretion to Dismiss 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.
SB 81 (Skinner) Chapter 721, Statutes of 2021, added subdivision (c) of Penal Code section 1385 which provided guidance to courts on when to dismiss enhancements in the interests of justice for sentencings that occur on or after January 1, 2022. The law provided that a court “shall dismiss” an enhancement if it is in the furtherance of justice to do so, unless any initiative statute prohibits such action, and unless dismissal endangers public safety. (See People v. Mendoza (2023) 88 Cal.App.5th 427 [section 1385, subdivision (c)(2)(C) does not mandate dismissal of an enhancement that could result in a sentence over 20 years where the trial court finds dismissal would endanger public safety].)
In exercising discretion under subdivision (c) of Penal Code section 1385, the court must give “great weight” to evidence offered by the defendant to prove any of mitigating circumstances, unless the court finds that dismissal would endanger public safety. Examples of mitigating circumstances include: where the enhancement would result in discriminatory racial impact; where multiple enhancements are alleged in a single case; where the enhancement could result in a sentence exceeding 20 years; and where the enhancement is based on a prior conviction that is over five years old. The statute allows a court to exercise this discretion before, during, or after trial or entry of plea as well as at sentencing.
After SB 81 was signed into law, the Judicial Council amended and adopted Rules of Court on the application of the new law. Rule of Court 4.428 governs imposition of enhancements. In providing guidance on the application of SB 81, the courts amended existing Rule 4.428 to include the following language:
(c) Dismissing enhancements under section 1385(c)
(1) The court shall exercise the discretion to dismiss an enhancement if it is in the furtherance of justice to do so, unless the dismissal is prohibited by initiative statute.
(2) In exercising its discretion under section 1385(c), the court must consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in section 1385(c) are present.
(A) In exercising its discretion under section 1385(c), the court must consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in section 1385(c) are present.
(B) The circumstances listed in 1385(c) are not exclusive.
(C) "Endanger public safety" means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.
(3) If the court dismisses the enhancement pursuant to 1385(c), then both the enhancement and its punishment must be dismissed.
(Cal. Rules of Court, rule 4.428(c), adopted effective March 14, 2022.) The Advisory Committee included the following comments on determining “furtherance of justice” and “afford great weight” for purposes of the new law:
Case law suggests that in determining the "furtherance of justice" the court should consider the constitutional rights of the defendant and the interests of society represented by the people; the defendant's background and prospects, including the presence or absence of a record; the nature and circumstances of the crime and the defendant's level of involvement; the factors in aggravation and mitigation including the specific factors in mitigation of section 1385(c); and the factors that would motivate a "reasonable judge" in the exercise of their discretion. (Citing People v. Romero (1996) 13 Cal.4th 947; People v. Dent (1995) 38 Cal.App.4th 1726; People v. Kessel (1976) 61 Cal.App.3d 322; People v. Orin (1975) 13 Cal.3d 937.)
. . . .
The court is not directed to give conclusive weight to the mitigating factors, and must still engage in a weighing of both mitigating and aggravating factors. A review of case law suggests that the court can find great weight when there is an absence of "substantial evidence of countervailing considerations of sufficient weight to overcome" the presumption of dismissal when the mitigating factors are present. (People v. Martin (1996) 42 Cal.3d 437.) In exercising this discretion, the court may rely on aggravating factors that have not been stipulated to by the defendant or proven beyond a reasonable doubt at trial by a jury or a judge in a court trial. (People v. Black (2007) 41 Cal.4th 799.)
(Advisory Com. com, Cal. Rules of Court, rule 4.428(c).) While subdivision (c) of Penal Code section 1385 applies only to sentencings after January 1, 2022 (People v. Flowers (2022) 81 Cal.App.5th 680), when a sentence is vacated or recalled for other reasons and resentencing occurs after January 1, 2022, the court must apply the laws in effect at the time of sentencing which would include subdivision (c) of Penal Code section 1385. (People v. Sek (2022) 74 Cal.App.5th 657, 674 [“Because any resentencing in this case will take place after Senate Bill No. 81 became effective on January 1, 2022, we agree with Sek that the court must apply the new law in any such proceeding.”]; see also People v. Padilla (2022) 13 Cal.5th 152 [new laws apply at resentencing after habeas corpus petition led to original sentence being vacated as unconstitutionally imposed].)
Both Penal Code sections 12022.5 and 12022.53 contained a provision that stated notwithstanding Penal Code section 1385, the court shall not strike an allegation or a true finding under these firearm enhancements. (Former Pen. Code, §§ 12022.5, subd. (c) and 12022.53, subd. (h).)
In 2017, the Legislature passed SB 620 (Bradford), Chapter 682, Statutes of 2017, deleting the prohibitions on striking an allegation or finding under the personal use of a firearm and 10-20-life law. This legislation allowed a court, in the interest of justice, to strike or dismiss a firearm enhancement which otherwise adds a state prison term of 3, 4, or 10 years, or 5, 6, 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.
According to the author’s statement for SB 620:
Right now these sentences are imposed as a mandate, regardless of the circumstances of a crime. If for some valid reason a court wanted to impose a lesser sentence they cannot.
And these mandates are adding to an already long sentence. The individual is already facing a long sentence as a result of a felony conviction. The mandates make a long sentence longer.
SB 620 provides the court with discretion to strike a firearm enhancement in any case in which that would be in the interests of justice to do so. A defendant who merits additional punishment for the use of a firearm in the commission of a felony would receive it. SB 620 allows a court to decide whether or not to extend the sentence if a specific case indicates that it would be appropriate to do so.
Longer sentences do not deter crime or protect public safety according to research on these laws.
Instead, research has found that these enhancements cause problems. They disproportionately increase racial disparities in prison populations and they greatly increase the population of incarcerated persons.
SB 620 does NOT eliminate these enhancements. Instead, SB 620 allows a judge to exercise discretion on whether or not to make a long sentence longer if it is in the interest of justice.
This bill allows a court to recall and resentence a person who was sentenced prior to the enactment of SB 620 authorizing court discretion in imposing one of these firearm enhancements and requires the court to consider specified mitigating factors subsequently adopted into law by SB 81 when exercising its discretion.
- Technical Amendments to be Adopted in Committee
The author intends to amend the bill with the following technical amendments:
- Removal of county correctional administrator as a referring agency.
- Delete listing of circumstances that mirror those found in subdivision (c) of Penal Code section 1385 and instead add cross reference.
- Clarify that the court must recall the sentence, not that the court must resentence the individual.
- Argument in Support
According to Initiate Justice, the sponsor of this bill:
Passed in 2017, SB 620 (Bradford), gives judges the discretion to strike or dismiss firearm enhancements at sentencing in the interest of justice, but this change in law was not made available to anyone currently incarcerated. AB 1310 will ensure currently incarcerated people . . . the same relief. Sentence enhancements add extra years to someone’s sentence in addition to the statutory ranges for criminal offenses. There are more than 100 sentence enhancements across California’s penal code. These enhancements are costly, ineffective, and a relic of the failed tough on crime era. Firearm enhancements are one of the most commonly used enhancements that add extra years to a sentence. The latest available data shows that 37,237 people in CDCR custody had some form of gun enhancement as part of their sentence. 89% of these people were people of color. Many people receive these firearm enhancements without a firearm ever being physically recovered, or if a firearm was recovered, it doesn’t need to even be loaded or operable for the enhancement to be applied. Additional research has shown that people suffering from mental illness disproportionately receive these enhancements.
. . . .
This bill is not a get-out-of-jail free card because judges retain full discretion and prosecutors will be able to argue that someone is an unreasonable risk to public safety and unfit to be resentenced. Therefore public safety will not be jeopardized and there will be significant state savings while striking the right balance between fairness and safety.
- Argument in Opposition
According to the California District Attorneys Association (CDAA):
Your bill would provide for the presumptive resentencing of everyone convicted of a firearm enhancement – those who used, discharged, and/or killed someone unlawfully during the commission of their crime. This measure makes no distinction between those who have demonstrated some indicators of redemption or rehabilitation and those who have not. This bill provides for a one-size-fits-all process that will necessarily provide relief to those who have injured and killed others during their crimes yet have not demonstrated the degree of reflection deserving of relief.
While CDAA applauds efforts to identify those deserving of relief, this bill simply goes too far in applying such relief to an entire category of people who have harmed others with firearms. For these reasons, we cannot support your bill.
-- END –
ASSEMBLY THIRD READING
ATR Bill Id:AB 1310
Author:(McKinnor)
As Amended Ver:May 18, 2023
Majority vote
SUMMARY
Allows a petition for recall and resentencing for a person sentenced on or before January 1, 2018, whose sentence included the imposition of a term for specified firearm enhancements.
Major Provisions
- Permits a person who was found, whether by trial or by plea, to have used a firearm under Penal Code section 12022.5 or 12022.53 on or before January 1, 2018, to petition for recall and resentencing before the trial court that entered the judgment in their case.
- States that a person need not be currently serving a sentence for the enhancement, or be currently serving one, in order to be eligible for relief.
- Requires the court to make a threshold determination that the petitioner satisfies the criteria to be eligible for resentencing, namely that they were sentenced on one of the two aforementioned firearm enhancements on or before January 1, 2018.
- Provides that if the petitioner satisfies the criteria, then the court may strike or dismiss the enhancement and resentence in accordance with the law that was applicable on January 1, 2018.
- Creates a presumption favoring resentencing if the defendant satisfies the criteria, which may only be overcome if the court finds that the defendant is an unreasonable risk of danger to public safety, as specified.
- States that notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if prohibited by an initiative statute.
- Enumerates factors the court must consider, any one of which weigh greatly in favor of dismissing the enhancement, unless the court finds that dismissal would endanger public safety, as specified.
- Requires that a person resentenced under these provisions be given credit for time served and also be subject to parole supervision for one year following completion of their sentence, unless the court also exercises discretion to release the person from parole.
- Requires resentencing to result in a lesser sentence unless the original enhancement was imposed concurrently or stayed; and prohibits resentencing from resulting in a longer sentence than the one originally imposed.
- Allows a person who has completed their sentence to file an application before the trial court that entered the judgment of conviction in their case.
- Allows a person committed to the state hospital after being found guilty by reason of insanity to petition the court to have their maximum term of commitment reconsidered and reduced.
- Provides that if the original sentencing judge is unavailable, the presiding judge shall designate another to rule on the petition for recall and resentencing.
- States that resentencing does not diminish or abrogate the finality of judgments in any case that does not come within these provisions.
- States that a resentencing hearing is a post-conviction proceedings for purposes of Marsy's Law, the Victim's Bill of Rights.
- Requires the appointment of counsel.
- Permits the parties to waive a resentencing hearing, or alternately have a sentencing hearing via remote technology, if the defendant agrees.
COMMENTS
According to the Author
"This bill will ensure that people receive equal treatment under the law by allowing past legislation to be applied retroactively. AB 1310 will allow for incarcerated people with a firearm enhancement to file a court petition for resentencing. Public safety will not be jeopardized because judges will retain full discretion and prosecutors will have the opportunity to prove that someone is an unreasonable risk to public safety and unfit to be resentenced."
Arguments in Support
According to Initiate Justice, a co-sponsor of this bill, "AB 1310 (McKinnor) will allow currently incarcerated people with firearm enhancements to file a court petition for resentencing by making previous legislation, SB 620 (Bradford), retroactive. Passed in 2017, SB 620 (Bradford), gives judges the discretion to strike or dismiss firearm enhancements at sentencing in the interest of justice, but this change in law was not made available to anyone currently incarcerated. AB 1310 will ensure currently incarcerated people sentenced before January 1, 2022 will be able to petition the court for the same relief.
"Sentence enhancements add extra years to someone's sentence in addition to the statutory ranges for criminal offenses. There are more than 100 sentence enhancements across California's penal code. These enhancements are costly, ineffective, and a relic of the failed tough on crime era. Firearm enhancements are one of the most commonly used enhancements that add extra years to a sentence. The latest available data shows that 37,237 people in CDCR custody had some form of gun enhancement as part of their sentence. 89% of these people were people of color. Many people receive these firearm enhancements without a firearm ever being physically recovered, or if a firearm was recovered, it doesn't need to even be loaded or operable for the enhancement to be applied. Additional research has shown that people suffering from mental illness disproportionately recieve these enhancements.
"Not only do enhancements not serve public safety goals, they also serve no meaningful
deterrence purpose. Research on extreme sentence lengths offers little to no support for the idea that the threat of longer sentences deters people from committing crimes.
"This bill is not a get-out-of-jail free card because judges retain full discretion and prosecutors will be able to argue that someone is an unreasonable risk to public safety and unfit to be resentenced. Therefore public safety will not be jeopardized and there will be significant state savings while striking the right balance between fairness and safety."
Arguments in Opposition
According to the San Diego Deputy District Attorneys Association, "This bill will make retroactive the recent legislative changes to Penal Code section 1385 as it relates to the most serious gun enhancements that apply to murder, rape, robbery and assaults with a deadly weapon. This is beyond burdensome on the criminal justice system, and it also falsely assumes that the courts did not already have discretion to strike or dismiss those enhancements in the interests of justice. This is a direct attack on the finality of the most violent felonies and on victims who have been killed or injured by gun violence.
"This bill allows everyone convicted of a gun enhancement prior to 2022 to be resentenced, presumably with all other new laws now available for reconsideration as well. This will break open the finality of nearly all violent felonies cases in California, including cases that have been final for decades. This bill ignores the appellate and habeas process that are available to all convicted defendants to correct mistakes made during the criminal prosecution.
"In addition to Deputy Public Defenders who will be assigned to file these petitions, Deputy District Attorneys will be assigned each petition. The resentencing of felony murders pursuant to Senate Bill 1437 were a burden on the criminal justice system, this will be an avalanche because of the sheer number of violent crimes that have been committed with guns that will all now be subject to being resentence. Victims in every city, of every age will be recalled to court to be told their family's member's murderer or the perpetrator who shot them will now be resentenced. There will be untold trauma to these victims that cannot be mitigated by hiring additional victim advocates. This is truly going to be a living nightmare for thousands of victims and the family of victims.
"This is not only a burden on the criminal justice system, but also a travesty of justice for all who try to keep the public safe from gun violence."
FISCAL COMMENTS
According to the Assembly Appropriations Committee:
- Costs in the millions of dollars (Trial Court Trust Fund, General Fund) for trial courts to adjudicate resentencing petitions allowed by this bill. The Judicial Council estimates that if 75% of the 37,000 people who are currently incarcerated with firearm enhancements file petitions for recall and resentencing, this bill will result in $4 million to $9 million in workload for courts to adjudicate the petitions. This estimated range in potential costs is due to the varying amount of court time and work needed to resolve each petition. Some petitions may be ruled on without a hearing, resulting in lower costs, while others may need to be heard in court, resulting in higher costs. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund and staff workload may create a need for increased funding for courts from the General Fund to perform existing duties.
- Potentially significant reimbursable costs (General Fund, local costs) to counties for public defenders to represent defendants at resentencing hearings. This bill requires appointment of counsel for resentencing hearings. The extent of General Fund costs would be determined by the Commission on State Mandates.
- Potentially significant cost savings (General Fund) to the California Department of Corrections and Rehabilitation (CDCR) due to shorter prison terms resulting from resentencing. The Legislative Analyst's Office has estimated that removing one person from state prison for one year results in approximately $15,000 in cost savings. If, as a result of recall and resentencing under this bill, 100 six-year firearm enhancements are dismissed, the resulting cost savings would be approximately $9,000,000.
VOTES
ASM PUBLIC SAFETY: 6-2-0
YES: Jones-Sawyer, Bonta, Bryan, Jackson, Santiago, Zbur
NO: Alanis, Lackey
ASM APPROPRIATIONS: 11-4-1
YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Weber, Ortega
NO: Megan Dahle, Dixon, Mathis, Sanchez
ABS, ABST OR NV: Robert Rivas
UPDATED
VERSION: May 18, 2023
CONSULTANT: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0000872
Date of Hearing: April 26, 2023
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Chris Holden, Chair
ABPCA Bill Id:AB 1310
Author:(McKinnor) – As Amended Ver:March 29, 2023
Policy Committee: | Public Safety | Vote: | 6 - 2 |
|
| ||
|
|
Urgency: No State Mandated Local Program: Yes Reimbursable: Yes
SUMMARY:
This bill allows for recall and resentencing of a specified firearm enhancement conviction, provided the conviction occurred on or before January 1, 2022.
Specifically, this bill:
- Allows someone who was convicted of a specified firearm enhancement on or before January 1, 2022, to submit a petition for recall and resentencing to the trial court that entered the judgment.
- Allows a court to strike or dismiss the firearm enhancement and resentence the person in accordance with the specified firearm enhancement statutes in place after January 1, 2022.
- Creates a presumption favoring resentencing unless the court finds the defendant poses an unreasonable risk to public safety, and requires the court to give great weight to evidence of mitigating circumstances that weigh in favor of dismissing firearm enhancements.
- States that a resentencing hearing is a post-conviction proceeding for the purpose of Marsy’s Law.
- Requires the appointment of counsel for the defendant at a resentencing hearing.
FISCAL EFFECT:
- Costs in the millions of dollars (Trial Court Trust Fund, General Fund) for trial courts to adjudicate resentencing petitions allowed by this bill. The Judicial Council estimates that if 75% of the 37,000 people who are currently incarcerated with firearm enhancements file petitions for recall and resentencing, this bill will result in $4 million to $9 million in workload for courts to adjudicate the petitions. This estimated range in potential costs is due to the varying amount of court time and work needed to resolve each petition. Some petitions may be ruled on without a hearing, resulting in lower costs, while others may need to be heard in court, resulting in higher costs. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund and staff workload may create a need for increased funding for courts from the General Fund to perform existing duties.
- Potentially significant reimbursable costs (General Fund, local costs) to counties for public defenders to represent defendants at resentencing hearings. This bill requires appointment of counsel for resentencing hearings. The extent of General Fund costs would be determined by the Commission on State Mandates.
- Potentially significant cost savings (General Fund) to the California Department of Corrections and Rehabilitation (CDCR) due to shorter prison terms resulting from resentencing. The Legislative Analyst’s Office has estimated that removing one person from state prison for one year results in approximately $15,000 in cost savings. If, as a result of recall and resentencing under this bill, 100 six-year firearm enhancements are dismissed, the resulting cost savings would be approximately $9,000,000.
COMMENTS:
- Author’s Statement. According to the author:
This bill will ensure that people receive equal treatment under the law by allowing past legislation to be applied retroactively. AB 1310 will allow for incarcerated people with a firearm enhancement to file a court petition for resentencing. Public safety will not be jeopardized because judges will retain full discretion and prosecutors will have the opportunity to prove that someone is an unreasonable risk to public safety and unfit to be resentenced.
- Firearm Enhancements. As detailed in the analysis of this bill by the Assembly Committee on Public Safety, for many years, California law required judges to add mandatory firearm enhancements to a defendant’s sentence if they were convicted of a using a firearm during the commission of certain offenses. Firearm enhancements have resulted in substantially longer prison sentences, and have been disproportionately applied against people of color and people with mental illness. In 2017, the Legislature passed SB 620 (Bradford) Chapter 682, Statutes of 2017, which allowed courts to strike or dismiss certain firearm enhancements in the interest of justice at the time of sentencing.
This bill will allow people with specified firearm enhancement convictions to file petitions asking the court to reduce or eliminate their firearm enhancement sentences. This will essentially mirror the discretion judges currently have to strike firearm enhancements at sentencing. Given the number of incarcerated people who are currently serving sentences that include firearm enhancements, it is reasonable to expect a high initial volume of petitions for resentencing submitted to the courts as a result of this bill, which will result in corresponding costs to the courts and public defenders. Ongoing court and public defender costs will likely taper off after these initial petitions are resolved.
Potential cost savings from shorter prison terms due to resentencing under this bill are less certain. As the Assembly Committee on Public Safety points out, it appears courts have continued imposing firearm enhancements despite the passage of SB 620, so petitions for resentencing submitted to the courts may not actually lead to many firearm enhancement sentences being eliminated or reduced.
Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081
Date of Hearing:
Chief Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:AB 1310
Author:(McKinnor) – As Amended Ver:March 22, 2023
As Proposed to be Amended in Committee
SUMMARY:
Allows a petition for recall and resentencing for a person sentenced on or before January 1, 2022, whose sentence included the imposition of a term for specified firearm enhancements. Specifically, this bill:
- Permits a person who was found, whether by trial or by plea, to have used a firearm under Penal Code section 12022.5 or 12022.53 on or before January 1, 2022, to petition for recall and resentencing before the trial court that entered the judgment in their case.
- States that a person need not be currently serving a sentence for the enhancement, or be currently serving one, in order to be eligible for relief.
- Requires the court to make a threshold determination that the petitioner satisfies the criteria to be eligible for resentencing, namely that they were sentenced on one of the two aforementioned firearm enhancements on or before January 1, 2022.
- Provides that if the petitioner satisfies the criteria, then the court may strike or dismiss the enhancement and resentence in accordance with the law that was applicable on January 1, 2022.
- Creates a presumption favoring resentencing if the defendant satisfies the criteria, which may only be overcome if the court finds that the defendant is an unreasonable risk of danger to public safety, as specified.
- States that notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if prohibited by an initiative statute.
- Enumerates factors the court must consider, any one of which weigh greatly in favor of dismissing the enhancement, unless the court finds that dismissal would endanger public safety, as specified.
- Requires that a person resentenced under these provisions be given credit for time served and also be subject to parole supervision for one year following completion of their sentence, unless the court also exercises discretion to release the person from parole.
- Requires resentencing to result in a lesser sentence unless the original enhancement was imposed concurrently or stayed; and prohibits resentencing from resulting in a longer sentence than the one originally imposed.
- Allows a person who has completed their sentence to file an application before the trial court that entered the judgment of conviction in their case.
- Allows a person committed to the state hospital after being found guilty by reason of insanity to petition the court to have their maximum term of commitment reconsidered and reduced.
- Provides that if the original sentencing judge is unavailable, the presiding judge shall designate another to rule on the petition for recall and resentencing.
- States that resentencing does not diminish or abrogate the finality of judgments in any case that does not come within these provisions.
- States that a resentencing hearing is a post-conviction proceedings for purposes of Marsy’s Law, the Victim’s Bill of Rights.
- Requires the appointment of counsel.
- Permits the parties to waive a resentencing hearing, or alternately have a sentencing hearing via remote technology, if the defendant agrees.
EXISTING LAW:
- Provides that any person who personally uses a firearm in the commission or attempted commission of a felony, in addition and consecutive to the punishment for the underlying felony offense, shall be sentenced to a term of 3, 4, or 10 years in state prison, unless the use of a firearm is an element of the offense for which they are convicted. A person who personally uses an assault weapon or machine gun during the commission of a felony or attempted felony is subject to an additional consecutive term of 5, 6 or 10 years in state prison. (Pen. Code, § 12022.5, subds. (a) & (b).)[1]
- Provides for the 10-20-life firearm law. A person who personally uses a firearm, whether or not the firearm was operable or loaded, during the commission of certain enumerated offenses[2] is subject to an additional consecutive term of 10 years in prison. If the firearm is personally and intentionally discharged during the crime, the defendant is subject to an additional consecutive term of 20 years in prison. If discharging the firearm results in great bodily injury (GBI) or death, the defendant is subject to an additional, consecutive term of 25-years-to-life in prison.[3] (Pen. Code, § 12022.53, subds. (b)-(d).)
- Provides that if the offense is gang-related, the 10-20-life firearm enhancements shall apply to every principal in the commission of the offense. An enhancement for participation in a criminal street gang shall not be imposed in addition to an enhancement under this provision, unless the person personally used or personally discharged a firearm in the commission of the specified offense. (Pen. Code, § 12022.53, subds. (e)(1) & (e)(2).)
- Provides that only one additional term of imprisonment under the 10-20-life firearm law shall be imposed per person per crime. An enhancement for use of a firearm shall not be imposed on a person in addition to an enhancement under this provision. (Pen. Code, § 12022.53, subd. (f).)
- States that when two or more enhancements may be imposed for being armed with or using a a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. (Pen. Code, § 1170.1, subd, (f).)
- States that, notwithstanding any other law, the sentencing court “shall dismiss” an enhancement “if it is in the furtherance of justice to do so” except if dismissal of that enhancement is prohibited by any initiative statute. (Pen. Code, § 1385, subd. (c)(1).)
- Instructs the court to consider the following factors in determining whether it is in the interests of justice to dismiss an enhancement:
- Application of the enhancement would result in a discriminatory racial impact, as specified;
- Multiple enhancements are alleged in a single case, in which case all enhancements but one shall be dismissed;
- Application of the enhancement could result in a sentence of over 20 years, in which case the enhancement shall be dismissed;
- The current offense is connected to mental illness, as specified;
- The current offense is connected to prior victimization or childhood trauma, as specified;
- The current offense is not a violent felony, as specified;
- 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;
- The enhancement is based on a prior conviction that is over five years old;
- Though a firearm was used in the current offense, it was inoperable or unloaded. (Pen. Code, § 1385, subd. (c)(3)(A)-(I).)
- Application of the enhancement would result in a discriminatory racial impact, as specified;
- States that proof of the presence of one or more of those mitigating circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would “endanger public safety,” meaning that there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. (Pen. Code, § 1385, subd. (c)(2).)
- Provides that no part of the Penal Code is retroactive, unless expressly so declared. (Pen. Code, § 3.)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author's Statement: According to the author, “This bill will ensure that people receive equal treatment under the law by allowing past legislation to be applied retroactively. AB 1310 will allow for incarcerated people with a firearm enhancement to file a court petition for resentencing. Public safety will not be jeopardized because judges will retain full discretion and prosecutors will have the opportunity to prove that someone is an unreasonable risk to public safety and unfit to be resentenced.”
- Background of “Use of a Gun and You’re Done” Law (i.e., the 10-20-life Firearm Law): “In 1997, the Legislature passed the “Use a Gun and You’re Done” law that significantly increased sentencing enhancements for possessing a gun at the time of committing a specified felony, such as robbery, homicide, or certain sex crimes. Under the law, if someone uses a gun while committing one of the identified crimes, their sentence is extended by 10 years, 20 years, or 25 years-to-life, depending on how the gun was used. Often the enhancement for gun use is longer than the sentence for the crime itself. For example, in the case of second-degree robbery, a person could serve a maximum of five years for the robbery and an extra 10 years for brandishing a gun during the robbery, even if the gun was unloaded or otherwise inoperable. Someone convicted of first-degree murder would be sentenced to at least 50 years-to-life if a gun was used, whereas if the murder was carried out using another method – such as strangulation – the sentence would be half the length (25 years-to-life). A judge has no discretion in applying this enhancement; if a gun was used, a judge must apply it.” (California Budget and Policy Center (2015) Sentencing in California: Moving Toward a Smarter, More Cost-Effective Approach.)
Deterrence was a driving factor behind this legislation: “The Legislature finds and declares that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and to deter violent crime.” (AB 4 (Bordonaro), Chapter 503, Statutes of 1997.)
In 2017, the Legislature passed SB 620 (Bradford), Chapter 682, Statutes of 2017. This legislation allowed a court, in the interest of justice, to strike or dismiss a firearm enhancement which otherwise adds a state prison term of 3, 4, or 10 years, or 5, 6, 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.
As to the exercise of that judicial discretion, CDCR has informed the committee in the three years preceding the court’s ability to strike an enhancement under the 10-20-Life firearm law, there were 6,255 enhancements imposed under the law on 2,845 offenders[4]; and in the three years after judicial discretion to strike the enhancement was implemented, there were 6,078 enhancements pursuant to the statute imposed on 2,672 offenders as follows:
Date Range | Number of Offenders | Number of PC 12002.53(b) | Number of PC 12002.53(c) | Number of PC 12002.53(d) | Number of Enhancements |
2015 - 2017 | 2,845 | 3,239 | 1,227 | 1,789 | 6,225 |
2018 - 2021 | 2,672 | 3.089 | 1,181 | 1,808 | 6,078 |
Based on these figures, it appears that in the first three years in which the courts were given discretion to dismiss enhancements under the 10-20-Life rule, judges continued to impose these enhancements at about the same rate as before they lacked discretion to strike them.
This bill would allow a person to petition for recall and resentencing if sentenced on a section 12022.53 enhancement at any time prior to January 1, 2022.
- Enhancement for Personal Use of a Firearm: Penal Code section 12022.5 imposes an additional term of 3, 4, or 10 years for the personal use of a firearm in the commission, or the attempted commission of any felony. (Pen. Code, § 12022.5, subd. (a).) If the firearm is an assault weapon or a machine gun, then the additional term is 5, 6, or 10 years. (Pen. Code, § 12022.5, subd. (b).) This time period is in addition and consecutive to the punishment that you receive for the underlying felony offense. As noted above, SB 620 (Bradford), Chapter 682, Statutes of 2017, allowed a court, in the interest of justice, to strike or dismiss this firearm enhancement, in addition to dismissing the 10-20-life Firearm Law which is applicable only to specified felonies.
This bill would also allow a petition for recall and resentencing in cases where a section 12022.5 enhancement was imposed at any time prior to January 1, 2022. - Retroactivity: Penal Code section 3 provides that no provision of the Penal Code is retroactive unless expressly stated. Therefore, changes in the law are generally applied prospectively unless expressly stated otherwise. However, where a change in the law potentially decreases punishment, it can be applied to defendants whose judgments were not final on appeal when the change became effective. (See In re Estrada (1965) 63 Cal.2d 740.) A case is final when the time for petitioning the United States Supreme Court for a writ of certiorari expires, which is 90 days after a remitter is issued. (People v. Vieira (2005) 35 Cal.4th 264, 306.) Consistent with these well-settled principles, in People v. Woods (2018) 19 Cal.App.5th 1080, the court of appeal held that SB 620 may apply retroactively, but only to non-final cases.
While the purpose of this bill is to give courts discretion to apply SB 620 retroactively, it goes beyond the effective date the law changed, which was January 1, 2018. Instead, this bill provides that it applies to persons sentenced on or before January 1, 2022.
Presumably, trial courts were aware of their discretion under SB 620 after its effective date. (See People v. Myers (1999) 69 Cal.App.4th 305, 310 [We presume trial judges understand the law and understand the requirements of the sentencing laws absent an affirmative record to the contrary].) Does this bill give defendants sentenced between January 1, 2018, and January 1, 2022, two bites at the apple? - Judicial Discretion to Dismiss 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.
Effective January 1, 2022, “the court’s authority to strike enhancements has been expanded.” (See California Criminal Law Procedure and Practice, 2002, § 37.1, p. 1069.) SB 81 (Skinner) Chapter 721, Statutes of 2021, enacted Penal Code section 1385, subdivision (c) which provides that a court “shall dismiss” an enhancement if it is in the furtherance of justice to do so, unless any initiative statute prohibits such action, and unless dismissal endangers public safety. (See People v. Mendoza (2023) 88 Cal.App.5th 427 [section 1385, subdivision (c)(2)(C) does not mandate dismissal of an enhancement that could result in a sentence over 20 years where the trial court finds dismissal would endanger public safety].)
In exercising discretion under section 1385, subdivision (c), the court must give great weight to evidence offered by the defendant to prove any of mitigating circumstances, unless the court finds that dismissal would endanger public safety. Examples of mitigating circumstances include: where the enhancement would result in discriminatory racial impact; where multiple enhancements are alleged in a single case; where the enhancement could result in a sentence exceeding 20 years; and where the enhancement is based on a prior conviction that is over five years old. The statute allows a court to exercise this discretion before, during, or after trial or entry of plea as well as at sentencing.
Penal Code section 1385, subdivision (c) applies only to sentencings after January 1, 2022. (People v. Flowers (2022) 81 Cal.App.5th 680.) However, it must be applied when a sentence is vacated or recalled for other reasons and resentencing occurs after January 1, 2022. (People v. Sek (2022) 74 Cal.App.5th 657, 674 [“Because any resentencing in this case will take place after Senate Bill No. 81 became effective on January 1, 2022, we agree with Sek that the court must apply the new law in any such proceeding.”]; see also People v. Padilla (2022) 13 Cal.5th 152 [new laws apply at resentencing after habeas corpus petition led to original sentence being vacated as unconstitutionally imposed].)
Notwithstanding settled case law that a court must apply the laws in effect at the time of a resentencing, this bill re-codifies the criteria and presumptions of SB 81.
- Additional Judicial Discretion at Resentencing: As noted above, Penal Code § 12022.53 provides for three different lengths of sentencing enhancements for the use of a firearm in committing specified crimes. A twenty-five-year enhancement applies if defendant “personally and intentionally” discharged a firearm “and proximately caused great bodily injury.” (Pen. Code, § 12022.53, subd. (d).) A twenty-year enhancement may apply to a defendant for “personally and intentionally discharging a firearm” but without proximately causing great bodily injury. (Pen. Code, § 12022.53, subd. (c).) And third, a ten-year enhancement may apply if a defendant “personally uses a firearm” (brandishes) while committing the crime. (Pen. Code, § 12022.53, subd. (b).)
In People v. Tirado (2022) 12 Cal.5th 688, the Supreme Court considered whether when exercising discretion to dismiss or strike a gun enhancement per the provisions of SB 620, a judge may lower the length of the enhancement (for example, from 20 to 10 years) by substituting a different subdivision of the statute. The Supreme Court held that it could, noting that a court is not categorically prohibited from imposing a lesser included, uncharged enhancement so long as the prosecution has charged the greater enhancement and the facts supporting imposition of the lesser enhancement have been alleged and found true. (Id. at p. 697.) Specifically, the court ruled “When an accusatory pleading alleges and the jury finds true the facts supporting a section 12022.53(d) enhancement, and the court determines that the section 12022.53(d) enhancement should be struck or dismissed under section 12022.53(h), the court may, under section 12022.53(j), impose an enhancement under section 12022.53(b) or (c).” (Id. at p. 700.)
Subsequent to the decision in Tirado, supra, the California Supreme Court has granted review on the question of whether the trial court has discretion to strike a firearm enhancement imposed pursuant to Penal Code section 12022.53 and instead impose a lesser uncharged firearm enhancement pursuant to a different statute, namely Penal Code section 12022.5? (See People v. McDavid [nonpublished opinion, review granted 9/28/2022 (S275940/D078919); review on this issue has also been granted with briefing deferred in People v. Fuller (2022) 83 Cal.App.5th 394, review granted 11/22/2022 (S276762/E071794); and People v. Johnson (2022) 83 Cal.App.5th 1074, review granted 12/14/2022 (S277196/C094491).)
As introduced, this bill would have limited judicial discretion because it provided that “if the court does exercise its discretion, no additional or substitute term of imprisonment shall be added in its place.” However, as proposed to be amended in committee, this language is stricken, thereby giving the court full judicial discretion at resentencing. So, for example, it might substitute a previously stayed firearm enhancement; or pursuant to Tirado, supra, substitute a lesser punishment under the 10-20-life firearm enhancement; or depending on how the California Supreme Court rules in McDavid, supra, potentially imposing a lesser uncharged firearm enhancement under section 12022.5 when the enhancement to be stricken is one under the 10-20-life firearm enhancement. - Enhancements and Proposition 57: In November 2016, California voters overwhelmingly passed Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Prop. 57). Prop. 57 created a process for parole consideration for eligible people convicted of nonviolent crimes. Those who demonstrate that their release would not pose an unreasonable risk of violence to the community may be eligible for release upon serving the full term of their primary offense when an alternative sentence has been imposed. Prop. 57 also gave the California Department of Corrections and Rehabilitation (CDCR) new authority to award certain credits that reduce the length of state prison sentences.
Propostion 57 adopted California Constitution, Article I, section 32, which states:
(a)(1) Parole Consideration: Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.
(A) For purposes of this section only, the full term for the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.
….
(b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety.
Nonviolent offender parole eligibility is based on an inmate's current convictions. (In re Gadlin (2020) 10 Cal.5th 915, 943.) CDCR regulations define a “violent felony” for purposes of early parole consideration as a crime or enhancement listed in Penal Code section 667.5, subdivision (c). (Cal. Code Regs., tit. 15, § 3490, subd. (c)). The ballot materials provide support for this interpretation. (See In re Mohammad (2022) 12 Cal.5th 518, 542.) In its classification of “violent felony,” Penal Code 667.5 includes “any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of [Penal Code] Section 12022.3, or Section 12022.5 or 12022.55.” (Pen. Code, § 667.5, subd. (c)(8).)
Because the people impacted by this bill are currently serving a sentence for a firearm enhancement under two of the aforementioned provisions, they are considered violent felons and not entitled to parole eligibility under Prop. 57. However, if a person’s sentence were to be recalled in accordance with the provisions of this bill, and the court dismissed the firearm use enhancement at resentencing, then that person would become eligible for early parole consideration under Prop. 57.
- Disparate Impact: According to the 2020 Annual Report by the Committee on the Revision of the Penal Code, over 80% of the people sentenced to state prison are serving a sentence lengthened by an enhancement, with some of the most common enhancements including firearm-use enhancements. (See Annual Report and Recommendations 2020, Committee on Revision of the Penal Code, at p. 37-38, http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2020.pdf.) Citing data provided by the California Department of Correction and Rehabilitation’s Office of Research, the committee noted that these enhancements are applied disproportionately against people of color and people suffering from mental illness. (Id. at p. 38.)
Applying the judicial discretion conferred by SB 620 retroactively, as this bill would do, may help to alleviate that disparate impact. - Argument in Support: According to Initiate Justice, a co-sponsor of this bill, “AB 1310 (McKinnor) will allow currently incarcerated people with firearm enhancements to file a court petition for resentencing by making previous legislation, SB 620 (Bradford), retroactive. Passed in 2017, SB 620 (Bradford), gives judges the discretion to strike or dismiss firearm enhancements at sentencing in the interest of justice, but this change in law was not made available to anyone currently incarcerated. AB 1310 will ensure currently incarcerated people sentenced before January 1, 2022 will be able to petition the court for the same relief.
“Sentence enhancements add extra years to someone’s sentence in addition to the statutory ranges for criminal offenses. There are more than 100 sentence enhancements across California’s penal code. These enhancements are costly, ineffective, and a relic of the failed tough on crime era. Firearm enhancements are one of the most commonly used enhancements that add extra years to a sentence. The latest available data shows that 37,237 people in CDCR custody had some form of gun enhancement as part of their sentence. 89% of these people were people of color. Many people receive these firearm enhancements without a firearm ever being physically recovered, or if a firearm was recovered, it doesn’t need to even be loaded or operable for the enhancement to be applied. Additional research has shown that people suffering from mental illness disproportionately recieve these enhancements.
“Not only do enhancements not serve public safety goals, they also serve no meaningful
deterrence purpose. Research on extreme sentence lengths offers little to no support for the idea that the threat of longer sentences deters people from committing crimes.
“This bill is not a get-out-of-jail free card because judges retain full discretion and prosecutors will be able to argue that someone is an unreasonable risk to public safety and unfit to be resentenced. Therefore public safety will not be jeopardized and there will be significant state savings while striking the right balance between fairness and safety.”
- Argument in Opposition: According to the San Diego Deputy District Attorneys Association, “This bill will make retroactive the recent legislative changes to Penal Code section 1385 as it relates to the most serious gun enhancements that apply to murder, rape, robbery and assaults with a deadly weapon. This is beyond burdensome on the criminal justice system, and it also falsely assumes that the courts did not already have discretion to strike or dismiss those enhancements in the interests of justice. This is a direct attack on the finality of the most violent felonies and on victims who have been killed or injured by gun violence.
“This bill allows everyone convicted of a gun enhancement prior to 2022 to be resentenced, presumably with all other new laws now available for reconsideration as well. This will break open the finality of nearly all violent felonies cases in California, including cases that have been final for decades. This bill ignores the appellate and habeas process that are available to all convicted defendants to correct mistakes made during the criminal prosecution.
“In addition to Deputy Public Defenders who will be assigned to file these petitions, Deputy District Attorneys will be assigned each petition. The resentencing of felony murders pursuant to Senate Bill 1437 were a burden on the criminal justice system, this will be an avalanche because of the sheer number of violent crimes that have been committed with guns that will all now be subject to being resentence. Victims in every city, of every age will be recalled to court to be told their family’s member’s murderer or the perpetrator who shot them will now be resentenced. There will be untold trauma to these victims that cannot be mitigated by hiring additional victim advocates. This is truly going to be a living nightmare for thousands of victims and the family of victims.
“This is not only a burden on the criminal justice system, but also a travesty of justice for all who try to keep the public safe from gun violence.”
- Related Legislation:
- AB 27 (Ta), would have exempted specified firearm enhancements from the provision of law that states a court shall dismiss an enhancement if it is in the furtherance of justice and does not endanger public safety. AB 27 failed passage in this committee.
- AB 328 (Essayli), would have prohibited the court from dismissing an enhancement for personal use of a firearm in the commission of certain violent crimes, except when the person did not personally use or discharge the firearm or when the firearm was unloaded. AB 328 failed passage in this committee and reconsideration was refused.
- AB 758 (Dixon), would create a sentencing enhancement for persons who in the commission, or attempted commission, of a felony are armed with a ghost gun. AB 758 failed passage in this committee but was granted reconsideration.
- AB 27 (Ta), would have exempted specified firearm enhancements from the provision of law that states a court shall dismiss an enhancement if it is in the furtherance of justice and does not endanger public safety. AB 27 failed passage in this committee.
- Prior Legislation:
- SB 81 (Skinner), Chapter 721, Statutes of 2021, requires the court to dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal is prohibited by an initiative statute, or unless dismissal endangers public safety.
- 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.
- AB 1509 (Lee), of the 2021-2022 legislative session, would have repealed several firearm enhancements, reduced the penalty for using a firearm in the commission of specified crimes from 10 years, 20 years, or 25-years-to-life to one, two or three years, and authorized recall and resentencing for a person serving a term for these enhancements. AB 1509 was held in the Assembly Appropriations Committee.
- AB 4 (Bordonaro), Chapter 503, Statutes of 1997, provided for the 10-20-life firearm law.
- SB 81 (Skinner), Chapter 721, Statutes of 2021, requires the court to dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal is prohibited by an initiative statute, or unless dismissal endangers public safety.
REGISTERED SUPPORT / OPPOSITION:
Support
ACLU California Action
California Coalition for Women Prisoners
California for Safety and Justice
California Public Defenders Association (CPDA)
Californians United for A Responsible Budget
Communities United for Restorative Youth Justice (CURYJ)
Ella Baker Center for Human Rights
Fair Chance Project
Initiate Justice
Initiate Justice Action
Legal Services for Prisoners With Children
Milpa (Motivating Individual Leadership for Public Advancement)
Root & Rebound
San Francisco Public Defender
Santa Cruz Barrios Unidos INC.
Showing Up for Racial Justice (SURJ) Bay Area
Smart Justice California
The W. Haywood Burns Institute
Uncommon Law
Underground Grit
Young Women's Freedom Center
Opposition
California District Attorneys Association
California State Sheriffs' Association
San Diegans Against Crime
San Diego County District Attorney's Office
San Diego Deputy District Attorneys Association
Analysis Prepared by:
Sandy Uribe / PUB. S. / (916) 319-3744
The firearm need not be operable or loaded. (People v. Nelums (1982) 31 Cal.3d 355, 360; see People v. Steele (1991) 235 Cal.App.3d 788, 791–795.) Someone personally uses a firearm if he or she intentionally displays the firearm in a menacing manner, hits someone with the firearm, or fires the firearm. (People v. Bland (1995) 10 Cal.4th 991, 997; People v. Johnson (1995) 38 Cal.App.4th 1315, 1319–1320; see also Pen. Code, § 1203.06, subd. (b)(2).)
↑The felonies which trigger the enhancements under the 10-20-life firearm law are: murder; mayhem, kidnapping; robbery; carjacking; assault with intent to commit a specified felony; assault with a firearm on a peace officer or firefighter; specified sex offenses; assault by a life prisoner; assault by a prisoner; holding a hostage by a prisoner; any felony punishable by death or life imprisonment; and any attempt to commit one of these crimes other than assault. (Pen. Code, § 12022.53, subd. (a).) ↑
The felonies which trigger the 25-to-life enhancement also include discharge of a firearm at an inhabited dwelling and willfully and maliciously discharging a firearm from a motor vehicle. (Pen. Code, § 12022.53, subd. (d).) ↑
The law prohibits imposition of more than one enhancement under the statute per crime, but not per case. (See Pen. Code, § 12022.53, subd. (f).) Therefore, an offender who is convicted of two or more crimes using or discharging the same gun, can receive multiple enhancements under the 10-20-Life Law. (See e.g. People v. Palacios (2007) 41 Cal.4th 720, 733 [Where defendant was convicted of attempted murder, kidnapping for robbery, and kidnapping for carjacking based on a single act against a single victim, the imposition of sentence for three Penal Code section 12022.53 enhancements was proper and did not violate the bar against multiple punishment].)
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Discussed in Hearing
4MIN
Senate Standing Committee on Appropriations
16MIN
Senate Standing Committee on Public Safety
16MIN
Assembly Standing Committee on Public Safety
Bill Author
Bill Co-Author(s):