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 specified firearms-related enhancements.

Existing law requires a person who personally uses a firearm to commit certain specified felonies to be punished by an additional and consecutive term of imprisonment in the state prison for 10 years, or for 20 years if the person discharged the firearm, or for 25 years to life if the person discharged the firearm and proximately caused great bodily injury or death. Existing law authorizes a court, in the interest of justice and at the time of sentencing or resentencing, to strike or dismiss an enhancement otherwise required to be imposed by that law.

This bill would prohibit a court from striking an allegation or a finding that would make a crime punishable pursuant to those enhancement provisions, except that a court could strike or dismiss an enhancement when the person did not personally use or discharge the firearm or when the firearm was unloaded.

Date of Hearing: March 7, 2023

Chief Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 328

Author:(Essayli) – As Introduced Ver:January 30, 2023

SUMMARY:

Prohibits the court from dismissing a firearm enhancement under the 10-20-life law, except as specified. Specifically, this bill: Eliminates judicial discretion to dismiss or strike an allegation under the 10-20-life law except when:

1. A principal involved in a gang-related offense did not personally use or intentionally discharge the firearm; or,
   
2. The firearm was unloaded at the time of the commission of the offense.

EXISTING LAW:

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^[1] 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.^[2] (Pen. Code, § 12022.53, subds. (b)-(d).)
2. 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. But, 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).)
3. Provides that only one additional term of imprisonment under the 10-20-life firearm law shall be imposed per person per crime. Further, other firearm enhancements shall not be imposed on a person in addition to an enhancement under this provision. (Pen. Code, § 12022.53, subd. (f).)
   
4. 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).)
   
5. 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).)
   
6. 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).)
   
7. 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).)
      
8. 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).)
   
9. 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).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “What we’re missing in California is enforcement and deterrence. We’re not missing gun laws, we have more than one hundred gun laws on the books. Serious crimes need serious punishments and people need to be put on notice that if you use a firearm in the commission of a felony you are going to be locked up for a long time.”
   
2. 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. Subdivision (b) provides a 10-year enhancement for using a firearm; subdivision (c), a 20-year enhancement for intentionally firing the gun; and subdivision (d), a 25-years-to-life enhancement for intentional discharge causing great bodily injury or death to someone other than an accomplice.
   
   “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 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^[3]; 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:

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 eliminate the discretion authorized by SB 620 (Bradford) except in cases in which either the firearm was not loaded or in cases in which a principal in a gang-related offense did not personally use or intentionally discharge with or without causing injury.

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.)
   
   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.)
   
2. Argument in Support: According to the Riverside County District Attorney’s Office, “Violent criminals who use firearms should be appropriately punished when these dangerous and lethal weapons are used in a crime. As Governor Newsom recently recognized, ‘gun violence … destroys our communities and our sense of safety and belonging,’ and as such, he vowed to ‘doubl[e] down on gun safety.’ (https:/www.gov.ca.gov/2023/02/02/governor-newsom-takes-action-to-strengthen-californias-gun-safety-laws/) Homicides are up in our state and the most common weapons used in these homicides are firearms. This necessitates a revisiting of SB 620 enacted in 2018.
   
   “With the passage of SB 620, the Legislature granted judges the power to strike or dismiss the gun enhancement which was prohibited prior to the passage of this law. When a judge exercises this power, they re-victimize the victims of these crimes and jeopardize public safety. When an individual is convicted by a jury of a qualifying crime, and the gun enhancement is found true by proof beyond a reasonable doubt, a judge should sentence the defendant consecutively, as was the law prior to the enactment of SB 620 in 2018. These mandatory gun enhancements ensured the offender would be off the streets, and by reviving these mandatory sentences, we would stem the gun violence that Governor Newsom recognized is destroying our communities.”
   
3. Argument in Opposition: According to the Ella Baker Center for Human Rights, “Sentencing enhancements do not prevent crime, and will not will not address gun violence in any demonstrable way. Enhancements are, however, one of the drivers of mass incarceration, a systematic means of economically and politically disenfranchising Black, Latinx and Indigenous families and communities. Mass incarceration is a human rights issue and an economic disaster, and was built one bad bill at a time.
   

“There is extensive research that proves that overly long sentences, and the threat of such

sentences do not reduce or prevent crime. In 2014, the National Academy of Sciences published a 444-page review of studies of sentencing policies and their positive and negative effects on crime rates and community safety. Among their conclusions were:

‘Given the small crime prevention effects of long prison sentences and the possibly
high financial, social, and human costs of incarceration, federal and state policy
makers should revise current criminal justice policies to significantly reduce the
rate of incarceration in the United States. In particular, they should re-examine
policies regarding mandatory prison sentences and long sentences.’

“Additionally, a 2015 report by the Ella Baker Center for Human Rights, Forward Together, and Research Action Design Who Pays, The True Cost of Incarceration on Families details how incarceration destabilizes entire families and communities. Many people who return from incarceration face extreme barriers to finding jobs and housing and reintegrating into society. Family members of incarcerated people also struggle with overwhelming debt from court costs, visitation and telephone fees, and diminished family revenue. The longer the sentence, the more severe these problems.

“Subject to prosecutorial discretion, enhancements serve during the plea bargain phase to bully low income defendants into admitting guilt even in weak cases, and/or accepting unjustly long sentences. If a defendant asserts their Constitutionally guaranteed right to a trial by jury, the prosecutor may threaten a ‘trial tax,’ stacking charges and enhancements. The US Department of Justice published a research summary on plea bargain and charging practices in the US and among their findings: that those who go to trial are more likely to receive harsher sentences, and that the majority of research found that Black Americans are punished more harshly than whites.

“Again – harsher sentences do not deter crime. People do not calculate the number of years in prison before acting. They are only deterred by fear of apprehension. California already spends too much money on mass incarceration, having built far more prisons than universities in the last 30 years. And the harms done to families and communities undermine the very intent of law to protect and enhance public safety.

“Taking away the court’s ability to dismiss firearm enhancements will not promote public safety, and will result in racially disparate and excessively long sentences.”

1. Related Legislation: AB 27 (Ta), would exempt specified firearm enhancements from the presumption that a court must dismiss an enhancement if it is in the furtherance of justice to do so and does not endanger public safety. AB 27 failed passage in this committee.
   
2. Prior Legislation:
   
   1. 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.
      
   2. SB 620 (Bradford), Chapter 682, Statutes of 2017, allows a court, in the interest of justice, to strike or dismiss a firearm enhancement which otherwise adds a state prison term of three, four, or 10 years, or five, six, or 10 years, depending on the firearm, or a state prison term of 10 years, 20 years, or 25-years-to-life depending on the underlying offense and manner of use.
      
   3. AB 4 (Bordonaro), Chapter 503, Statutes of 1997, provided for the 10-20-life firearm law.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Arcadia Police Officers' Association

Burbank Police Officers' Association

California Coalition of School Safety Professionals

California District Attorneys 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

Palos Verdes Police Officers Association

Placer County Deputy Sheriffs' Association

Pomona Police Officers' Association

Riverside County District Attorney

Riverside County Sheriff's Office

Riverside Police Officers Association

Riverside Sheriffs' Association

Santa Ana Police Officers Association

Upland Police Officers Association

Opposition

ACLU California Action

California Attorneys for Criminal Justice

California Public Defenders Association

Ella Baker Center for Human Rights

Initiate Justice

Pacific Juvenile Defender Center

San Francisco Public Defender

Analysis Prepared by:

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

1. 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).)
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2. 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).) ↑

3. 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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