Existing law generally authorizes a court to dismiss an action or to strike or dismiss an enhancement in the furtherance of justice. Existing law requires a court to 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.

This bill would also prohibit a court from dismissing a firearms-related enhancement, as defined.

Date of Hearing:

Chief Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 27

Author:(Ta) – As Introduced Ver:December 5, 2022

SUMMARY:

Exempts specified firearm enhancements from the requirement that a court dismiss an enhancement if it is in the furtherance of justice and does not endanger public safety. Specifically, this bill:

1. Provides that a court is not required to dismiss specified firearm use enhancements, even if it is in the furtherance of justice to do so.
   
2. Applies this exemption to the following firearm enhancements:
   
   1. Carrying a loaded or unloaded firearm during the commission or attempted commission of a street gang crime;
      
   2. Committing or attempting to commit a felony while armed with a firearm;
   3. Committing or attempting to commit specified sex offenses while armed with a firearm;
      
   4. Furnishing or offering to furnish a firearm to another for purposes of aiding, abetting, or enabling the commission or attempted commission of a felony;
      
   5. Personal use of a firearm, assault weapon, or machine gun in the commission or attempted commission of a felony;
      
   6. The 10-20-life firearm law;
      
   7. Discharging a firearm from a motor vehicle in the commission or attempted commission of a felony;
      
   8. Improper transfer of a firearm which is subsequently used in the commission of a felony offense resulting in conviction; and,
      
   9. Committing another crime while violating the assault weapons ban.

EXISTING LAW:

1. Authorizes the court, either on its own motion or upon motion of the district attorney, and in furtherance of justice, to order an action to be dismissed. The reasons for the dismissal must be stated orally on the record, and entered in the minutes, if requested by either party. (Pen. Code, § 1385, subd. (a).)
   
2. Provides that if the court has the authority to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice. (Pen. Code, § 1385, subd. (b)(1).)
   
3. Requires, notwithstanding any other law, the court to dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement that is prohibited by any initiative statute. (Pen. Code, § 1385, subd. (c)(1).)
   
4. Instructs the court to consider the following factors in determining whether it is in the interests of justice to dismiss an enhancement:
   
   1. Application of the enhancement would result in a discriminatory racial impact, as specified;
      
   2. Multiple enhancements are alleged in a single case, in which case all enhancements but one shall be dismissed;
      
   3. Application of the enhancement could result in a sentence of over 20 years, in which case the enhancement shall be dismissed;
      
   4. The current offense is connected to mental illness, as specified;
      
   5. The current offense is connected to prior victimization or childhood trauma, as specified;
      
   6. The current offense is not a violent felony, as specified;
      
   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. (Pen. Code, § 1385, subd. (c)(3)(A)-(I).)
      
5. Requires the court to consider and afford great weight to evidence offered by the defendant to prove that any of the aforementioned mitigating circumstances are present. (Pen. Code, § 1385, subd. (c)(2).)
   
6. States that proof of the presence of one or more of these 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).)
   
7. Imposes an additional term of imprisonment for carrying a loaded or unloaded firearm during the commission or attempted commission of a street gang crime. (Pen. Code, § 12021.5, subds. (a) & (b).)
   
8. Imposes an additional term of imprisonment for committing or attempting to commit a felony while armed with a firearm. (Pen. Code, § 12022.)
   
9. Imposes an additional term of imprisonment for committing or attempting to commit specified sex offenses while armed with a firearm. (Pen. Code, § 12022.3.)
   
10. Imposes an additional term of imprisonment for furnishing or offering to furnish a firearm to another for purposes of aiding, abetting, or enabling the commission or attempted commission of a felony. (Pen. Code, § 12022.4.)
    
11. 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 he or she is 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]
    
12. 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).)
    
13. 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).)
    
14. 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).)
    
15. Imposes an additional term of imprisonment for discharging a firearm from a motor vehicle in the commission or attempted commission of a felony (Pen. Code, § 12022.55.)
    
16. Imposes an additional term of punishment for the improper transfer of a firearm which is subsequently used in the commission of a felony offense resulting in conviction. (Pen. Code, § 27590, subd. (d).)
17. States that notwithstanding any other law, a person who commits another crime with while violating the assault weapons ban, shall receive an additional and consecutive one-year enhancement. (Pen. Code, § 30615.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “AB 27 would hold criminals who commit gun-related crimes accountable, whereas, current law requires judges to dismiss gun-related sentencing enhancements in most circumstances. In response to this oversight, AB 27 would give the discretion back to the judges to decide on the case at hand to determine whether an enhancement is appropriate. This bill is a step toward California’s stance against gun violence.”
   
2. Sentencing Enhancements: “Generally speaking, sentencing enhancements derive their vitality from, and form a part of, the crime to which they are attached and alter the consequences the offender may suffer. The most direct consequence is additional punishment.” (People v. Fuentes, supra, 1 Cal.5th at p. 225, citation and quotations omitted.) There are over 100 sentencing enhancements found throughout the Penal Code.
   
   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.)
   
3. Courts Have Broad Discretion to Strike Enhancements: Penal Code section 1385 specifies that a judge may, in furtherance of justice, order an action to be dismissed. That provision has been interpreted to allow courts broad discretion to strike prior convictions and enhancements in order to provide individualized sentencing to a defendant. "Section 1385 has long been recognized as an essential tool to enable a trial court 'to properly individualize the treatment of the offender.'" (People v. Tanner (1979), 24 Cal.3d 514, 530.) “It was designed to alleviate ‘mandatory, arbitrary or rigid sentencing procedures [which] invariably lead to unjust results.’" (People v. Dorsey (1972), 28 Cal.App.3d 15, 18.) "Society receives maximum protection when the penalty, treatment or disposition of the offender is tailored to the individual case. Only the trial judge has the knowledge, ability and tools at hand to properly individualize the treatment of the offender." (People v. Williams (1970) 30 Cal.3d 470, 482, citation and internal quotation marks omitted.) One of the purposes of Section 1385 is to ensure that sentences are proportional to a defendant’s conduct.
   
   Effective January 1, 2022, SB 81 (Skinner) Chapter 721, Statutes of 2021, Penal Code section 1385 now requires a court to dismiss an enhancement if it is in the furtherance of justice to do so, unless any initiative statute prohibits such action. In exercising discretion, the court must give great weight to evidence offered by the defendant to prove any of mitigating circumstances. Proof of mitigating circumstances “weighs greatly” in favor of dismissing the enhancement, unless the court finds that dismissal would endanger public safety. Examples of mitigating circumstances include where: the enhancement would result in discriminatory racial impact; multiple enhancements are alleged in a single case; the enhancement could result in a sentence exceeding 20 years; and 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.
   
   This bill would exempt specified firearm enhancements from the provision requiring dismissal of an enhancement if it is in furtherance of justice.
   
4. 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 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.

1. Research on the Deterrent Effect and Impact on State Prisons: In a 2014 report, the Little Hoover Commission addressed the disconnect between science and sentencing – that is, putting away offenders for increasingly longer periods of time, with no evidence that lengthy incarceration, for many, brings any additional public safety benefit. (Little Hoover Commission, Sensible Sentencing for a Safer California (2014) at p. 4 https://lhc.ca.gov/sites/lhc.ca.gov/files/Reports/219/Report219.pdf.)
   
   The report also explains how California’s sentencing structure and enhancements contributed to a 20-year state prison building boom, specifically remarking on the “significant sentencing enhancements” of the 10-20-life firearm law. (Little Hoover Commission, supra, at p.9.)
   
2. Argument in Support: According to the California District Attorneys Association, “Notwithstanding some of the strictest gun laws in the United States, at least seven mass shootings have occurred in California since the beginning of 2023, leaving 31 people dead and dozens more injured. These shootings are emblematic of a tremendous increase in the number of firearms-related homicides, which increased 52% between 2019 and 2021, and aggravated assaults, which increased 64% during that same time frame.
   
   “Currently, the language of section 1385(c) too strongly favors dismissal of firearm enhancements by requiring courts to consider and afford great weight to a wide variety of mitigating circumstances in its analysis, one or more of which are likely to be present in most cases. AB 27 wisely helps restore a court’s traditional analysis (and greater discretion) in deciding whether to dismiss a firearm enhancement in the interests of justice. AB 27 will make it easier to protect the public from persons prone to use firearms, and sends a message that gun violence will not be tolerated in our communities.”
   
3. Argument in Opposition: According to the American Civil Liberties Union California Action (ACLU Cal Action), “AB 27 removes a tool from the judges’ justice tool kit. In 2017, ACLU Cal Action sponsored Senate Bill (SB) 620 (Bradford, 2017) so that judges could resist a particular species of excessive and unjust sentences—firearms-related enhancements. Specifically, under SB 620, a judge can state its reasons on the record and dismiss a firearms-related enhancement when ‘it is in the interests of justice pursuant to Section 1385.’ AB 27 takes away this discretion with language that explicitly tells judges they cannot dismiss firearms-related enhancements.
   
   “AB 27 is contrary to the goals of Section 1385. The purpose of Section 1385 is to alleviate mandatory, arbitrary, and rigid sentencing procedures that invariably lead to unjust results. (See People v. Dorsey (1972), 28 Cal. App. 3d 15,18.) AB 27 seeks mandatory additional prison time for an individual even where the judge has determined that additional time would be out of proportion to the individual’s culpability. There is no doubt that the foreseeable injustices of AB 27 will be disproportionately experienced by Black, American Indian, and Latinx men, as well as LGBTQ+ individuals. Further, history has conclusively proven that stripping judges of discretion efficiently facilitates prison overcrowding. And while prison overcrowding does not make our communities safer, it does result in inhumane prison conditions, cost taxpayers millions of dollars in litigation, and stymies rehabilitation.
   
   “AB 27 is unnecessary and has no public safety benefit. It appears that AB 27 seeks to put the courts’ discretion in check. However, there is no evidence that judges are arbitrarily dismissing firearms-related enhancements or that the exercise of this discretion presents a threat to the interests of society. While we appreciate that the intention of the bill may be to reduce crime, the evidence shows that AB 27 will unfortunately fail to do so. Although people will serve longer prison sentences, this will not increase deterrence nor meaningfully prevent crime by incapacitation. Instead, data show that enhancements increase racial disparities and drive over-incarceration, thus aggravating and exacerbating the root causes of crime.”
   
4. Related Legislation: AB 328 (Essayli), prohibits 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 is pending hearing in this committee.
   
5. Prior Legislation:
   
   1. 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.
      
   2. AB 2027 (Choi), of the 2021-2022 legislative session, would have exempted the hate crime enhancement from the requirement that a court dismiss an enhancement if it is in the furtherance of justice and does not endanger public safety. AB 2027 failed passage in this committee.
      
   3. 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.
      
   4. 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.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Arcadia Police Officers' Association

Burbank Police Officers' Association

California Coalition of School Safety Professionals

California District Attorneys Association

California Peace Officers Association

California State Sheriffs' Association

Claremont Police Officers Association

Corona Police Officers Association

Culver City Police Officers' Association

Fullerton Police Officers' Association

Inglewood Police Officers Association

Los Angeles School Police Officers Association

Newport Beach Police Association

Orange County District Attorney

Palos Verdes Police Officers Association

Placer County Deputy Sheriffs' Association

Pomona Police Officers' Association

Riverside Police Officers Association

Riverside Sheriffs' Association

Santa Ana Police Officers Association

Upland Police Officers Association

Opposition

ACLU California Action

Anti-recidivism Coalition (UNREG)

Bend the Arc: Jewish Action, Southern California

California Attorneys for Criminal Justice

California Public Defenders Association

Californians for Safety and Justice

Care First California

Ceres Policy Research

Communities United for Restorative Youth Justice (CURYJ)

Drug Policy Alliance

Ella Baker Center for Human Rights

Felony Murder Elimination Project

Friends Committee on Legislation of California

Initiate Justice

Legal Services for Prisoners With Children

Pacific Juvenile Defender Center

Sacramento Youth Advocacy Fellowship Pipeline

San Francisco Public Defender

Sister Warriors Freedom Coalition

United Core Alliance

Young Women's Freedom Center

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744

1. 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).)
   ↑

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).) ↑

3. 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).) ↑