California penal code permits judges to add sentence enhancement to criminal charges. A sentence enhancement is not a fact of the crime. Instead, it is a circumstance that enhances the penalties. For instance, using a gun to commit a violent felony crime can add up to 25 years, depending on the crime's seriousness. Sentencing enhancement laws unfairly impact defendants and have resulted in prison overcrowding, a substantial threat to the inmates, their health, and the Sacramento community. In October 2021, Governor Gavin Newsom passed the SB 81 bill into law and dismissed enhancements. Continue reading to learn what Senate Bill 81 is and how it can affect your criminal case.
Defining Sentencing Enhancements
A sentencing enhancement increases the sentence for committing an offense. Typically, it links to the accused person's criminal record or specific particulars about the severity of the crime circumstances. For example, a misdemeanor can become a California felony if it is a second or subsequent crime or the defendant used a weapon to violate the law. The Three Strikes law also enhances sentencing.
Often, the law specifies the possible punishment or outlines the maximum penalty on a case-by-case basis. Judges do not have the discretion to go beyond the maximum penalties prescribed for the offense unless the law allows enhanced sentencing.
Suppose the court convicts you for a misdemeanor driving under the influence. The judge considers the DUI laws to determine the appropriate sentence within the permitted legal range. Additionally, the law allows the judge to enhance your sentence based on your case circumstances and criminal record.
Common sentencing enhancements include:
- Weapons — You can commit most crimes with or without a firearm, but a weapon increases the risk of injuring a person. As a result, California increases the defendant's sentence when a weapon is involved.
- Previous convictions — As previously mentioned, enhancements are based on the defendant's criminal record. For example, per the California three strikes law, a person found guilty of a third violent or serious felony can spend 25 years to a life sentence in California state prison.
- Gang offenses — In an attempt to combat gang-related crimes, California has criminal-street-gang-enhancement laws.
- Aggravated white collar crime enhancement adds one to five consecutive years, depending on the total amount involved.
Why Sentencing Enhancements are Not Always a Good Idea
Most judges believe that imposing a lengthy prison sentence will imply that the crime is not tolerated. However, long sentences, especially for non-violent crimes, do not serve the intended purpose. For instance, the next individual in line replaces a drug dealer found guilty and convicted. In layman's language, long sentences can be detrimental to the convict and their community.
Additionally, the longer a convict spends in prison, the higher their incarceration costs, primarily due to increased healthcare needs. An individual's health declines rapidly in jail, hence the need for more access to health resources as they age.
Understanding Senate Bill 81
The basic tenet of the criminal justice system is that the penalties should be equivalent to the offense committed. However, in the wave of "aggressive on crimes laws" passed in the 1990s, California adopted sentencing enhancements that added several years to the defendants' incarceration term.
Most people agree that unfairly distributed and overused sentence enhancements remain a significant challenge within the California criminal justice system. A sentence enhancement is additional charges within the California penal code that allow additional and consecutive incarceration time if underlying conditions or facts are met. Consequently, the enhancements can considerably lengthen prison sentences, adding many years.
Currently, persons of color and those living with mental health conditions are disproportionately affected by the long sentences, resulting in overcrowded prison facilities. At least 92% of people convicted of gang enhancement in California are Latinx or Black. Yet, according to the Anti-Defamation League, California has a considerable population of white supremacist gangs. Also, a defendant sentenced per the Three Strikes Laws is more likely to be living with a mental condition and be black.
Although judges can dismiss a sentencing enhancement, they occasionally exercise it. According to statistics, eighty percent of convicts are serving time extended by their sentence enhancement. At least 25 percent of these inmates have more than three enhancements added to the penalties. According to the Public Policy Institute of California (PPIC), there are at least 150 sentence enhancements in the state, ranging from having a previous conviction, being on probation and gang association. On average, sentencing enhancement doubles the defendant's original sentence length.
For many years, California leaders have been against the enhancement practices, arguing that the system does not provide a clear picture of whether the enhancements are necessary.
For instance, Los Angeles District Attorney George Gascon centered his platforms around the matter and succeeded in introducing an initiative that discourages his deputies from looking for the enhancements.
The Supreme Court stated that the standards that judges use to determine whether a sentence should be dismissed are vague.
Also, while testifying to the Committee of Revision of the Penal Code, Former Governor Jerry Brown claimed that it was time for either a reform for California laws that guide judges how to implement the enhancement or abolition of the sentencing enhancements.
Moreover, renowned prosecutors, including Jeff Rosen, Santa Clara County District Attorney, testified to the committee that:
- the use of sentencing enhancement in California was uncontrolled, and
- In most trials, the application of enhancement was more of attention for the defense and the prosecutor than the crime.
The committee listened to testimonies and studied research indicating that lengthy prison sentences did not boost public safety.
To clear the confusion, State Senator for California's 9th district Nancy Skinner proposed SB 81. The bill sought to provide clear rules for issuing enhancements to ensure they are only enforced when genuinely essential. Judges will no longer add these enhancements to non-violent offenses unless the court deems the crime poses a public threat.
When deciding whether a sentencing enhancement is suitable, the bill requests judges to consider the following case circumstances:
- Whether a conviction originated from a crime that did not involve the use of firearms or a non-violent crime
- Whether the enhancement will have a prejudiced racial effect on the defendant
- If the sentencing enhancement is issued to a conviction that is at least five (5) years old
- Whether the conviction was linked to the accused childhood trauma or prior victimization
- The current crime is associated with mental health challenges
- Although a firearm was involved during the crime commission, was it unloaded or inoperable (If the gun was operable or loaded, the enhancement does not qualify for dismissal)
- The age of the defendant at the time of the crime (whether they were are a minor or not or previous juvenile adjudication triggered the enhancement(s) in the case)
- If the number of sentencing enhancements for one crime or the total sentence exceeds twenty years
- If several enhancements are alleged in one case, the judge should dismiss all enhancements beyond one enhancement
The Committee on Revision of the Penal Code that Governor Gavin Newsom commissioned in 2020 released a report outlining the above provisions. Skinner was a member of the committee. In a statement, she said that Senate Bill 81 sends a message to courts an enhancement ought to be used cautiously and when vital to safeguard the public.
Additionally, the report recommended that California:
- Downgrade from California misdemeanors to infractions cases of driving on suspended licenses or without a driver's license and reducing fine and eliminating Department of Motor Vehicle penalty points for the violations
- End compulsory minimum sentence for a non-violent crime
- Direct that defendants should serve short sentences in jails
- Prevent petty theft crimes not involving the use of firearms or severe injuries from being prosecuted as a felony
- Refine parole considerations to a person's risk of future serious or violent crimes
A recommendation would induce review resentencing and the capacity to petition after serving fifteen-year imprisonment if you can establish that your continued sentence is not in the interest of justice.
This idea stems from Senator Dave Cortese's proposed Senate Bill 300, which will grant a defendant found guilty of California felony murder with distinct case circumstances the entitlement to have a judge re-evaluate the life-without-parole sentence. California felony murder laws allow the prosecution to bring a murder charge against an accomplice in an offense that resulted in death.
However, SB 1437 (that Nancy Skinner proposed in 2018) narrowed this law, limiting California felony murder to accomplices intending to kill. The passage resulted in retroactive resentencing and release of an individual entangled in a severe offense but was not principal. Cortese's bill would strengthen Senate Bill 1437 by giving judges discretion in specific felony murder criminal cases.
On a news conference, Cortese cited that statistics show that:
- 2/3 of California's 5,100 life-without-parole inmates were people of color who committed the first-time crime, and
- About 60% of prisoners serving life-without-parole sentences committed criminal activities before turning 25.
Joanne Scheer claimed that her son was sentenced for felony murder after being an accomplice. She claimed that she had experienced racial inequalities in the criminal justice system during the parental visits. As a result, Joanne founded Felony Murder Elimination Project. She has also determined that California pays at least $150,000 annually to house an inmate by the time they are old. That means taxpayers are paying staggering costs to sentence people who neither intended nor caused another to die.
Nancy Skinner also introduced Senate Bill 82, which seeks to abolish the capability of the prosecution to charge a felony for petty theft because the defendant applied fear or force. Still, the crime did not involve deadly weapon(s) or severe injuries. The bill is retroactive to California robbery convictions suiting the criteria. According to Skinner, the California robbery statute was last updated approximately 150 years ago and did not consider the role of fear or force in developmental disabilities or mental health issues.
SB 81 was presented in the senate in December 2020, and Governor Gavin Newson signed it into law on October 8, 2021. The law becomes effective on Saturday, January 1, 2022, and its provisions are not retroactive. In other words, the law does not look back or contemplate the past, affecting case facts or conduct that existed before the law became effective.
Defining Key Legal Terms
For better understanding, here are definitions of legal terms and phrases used above:
As a juvenile, the defendant experienced sexual abuse, physical abuse, emotional neglect, or emotional abuse. The court concludes the accused's childhood trauma was linked to their criminal activity if, after analyzing credible and relevant evidence, such as:
- preliminary hearing transcript,
- witness statements,
- reports or records by experienced medical professionals,
- witness statements, and
- police reports,
The court concludes that childhood trauma played a significant role in the accused involvement in law violation.
It means the defendant was a victim of sexual abuse, human trafficking, or domestic violence. Also, it can be the individual who previously experienced physical or psychological trauma, including sexual violence, exploitation, neglect, or abuse. The court can conclude the accused person's prior victimization was related to the criminal activity in question if, after analyzing credible proof, the court discovers the person's prior victimization significantly resulted in the defendant committing the offense.
A Mental Disorder
A mental disorder is a clinically significant psychological or behavioral pattern or syndrome that happens in a person and is linked with current disability or distress or with a substantially increased risk of disability, pain, loss of freedom, or death. It includes schizoaffective disorder, post-traumatic stress disorder (PTSD), schizophrenia, and bipolar disorder. However, it excludes pedophilia, borderline personality disorder, and antisocial personality disorder.
The court can decide the defendant's mental health condition was linked to the criminal activity if after analyzing relevant evidence, the court concluded that mental illness played a significant role in the accused's involvement in the offense. Credible pieces of evidence can be:
- Police reports
- A preliminary hearing transcript
- Witness statement
- Statements issued by the accused's psychiatrist or any other mental health treatment expert
- Reports or records by trained medical professionals
- Medical records
- Proof that the defendant exhibited mental disorder symptoms before or when committing the crime
It refers to the protection and welfare of the general public. Usually, it is a governmental responsibility, and most divisions will comprise people from departments/entities like firefighters, emergency medical officers, and police. The primary goal of the departments is protecting and preventing the public from threats affecting their safety like disasters and crimes.
Insight from Other Jurisdictions
The most common sentencing enhancement across other states is based on previous convictions, including habitual offender statutes and Three Strike laws.
Many jurisdictions have limitations on the use of the enhancements. For instance, out of twenty states examined by the committee, twelve have wash-out or cut-off dates provision after which criminal records do not count for purposes of increasing specific sentence length. Delaware, the District of Columbia, Illinois, Michigan, and Florida have a ten-year wash-out for counting previous felony convictions. Defendants in Arizona face longer sentences for a new felony charge if they violate more serious felonies within ten years or specific felonies within five years. The federal government, Minnesota, and Arkansas have cut-off provisions for counting many previous felony crimes at 15 years and for misdemeanors at ten years.
SB 81 Criticism: Lawmakers and District Attorneys at Odds Over Violent Crime Bills
SB 81 originates from the existing penal code section describing violent crimes. Still, some DAs and lawmakers believed its definition and penalties needed changes, mainly as attacks on Asian American communities are on the increase.
However, Senator Nancy Skinner said the bill had nothing to do with the current attacks against Asian Americans and called on DAs to stop making false claims about legislation they did not like. She also added that all persons who commit a hate crime violent offense would be charged under the State Capitol.
What You Need to Have Your Sentencing Enhancement Dismissed
Luckily, if you are eligible for an enhancement dismissal, the odds are in your favor. The judge should consider your evidence establishing mitigating circumstances. Successfully proving any mitigating circumstances makes dismissal possible if any of the above provisions apply to your case.
However, it is understandably challenging to disclose a childhood trauma or mental health condition that contributed to the crime. It is hard to trust again following hardships connected to devastating experiences. That is why you should seek skilled and experienced legal representation.
There are many legal defenses your criminal defense lawyer can use to fight the sentencing enhancement against you. While you can raise some legal strategies to prove the prosecution failed to make the case, others are affirmative defenses and should be independently established. Here is a list of common defenses:
- Innocence — You can raise this defense if you did not violate the law. The prosecution must prove all elements of the offense against you beyond any reasonable doubt. While you do not have to verify anything, you can present documents, testimonies, and other evidence to support your innocence.
- Constitutional rights violations — These defenses involve how the police and law enforcers collect evidence. Common violations include unlawful search and seizure, failure to acquire a warrant for entry, acquiring improper confessions, or the police failing to read you your Miranda warnings during the arrest. Often the police make mistakes when working. These mistakes can lead to the court suppressing the evidence collected, if not dismissing the sentencing enhancement.
- Alibi — Alibi is an affirmative defense, and you should verify that you were not at the crime scene when the crime occurred. Some of the evidence you can use include phone records, testimony from the person you were with, or receipts from a store, sporting event, grocery, or restaurant.
- Self-defense — You can use this defense if charged with either battery, murder, or assault where you applied force to respond to the victim's violence or threats of violence. The amount of force applied you used should be reasonable.
- Involuntary intoxication — If your drink was spiked or you ate something that you did not know was drugged with a controlled substance or laced and committed an offense, you can use this defense. Involuntary intoxication is an absence of intent legal defense. Please note that you cannot use voluntary intoxication as a legal strategy.
- Mistake of fact — Sometimes, you could be unaware of the fundamental elements of your charged crime. The defense works best in fraud and embezzlement charges.
- Coercion or duress — The defense involves another person threatening to apply violence or force so that you can do something against your will. In other words, somebody else forced you to engage in an offense.
How SB 483 Differs From SB 81
Senate Bill 483 addresses the resentencing of individuals convicted with specific sentencing enhancements. The law states explicitly that resentencing should lead to a lesser sentence than was initially imposed unless the judge determines by persuasive and clear proof that a lesser sentence would endanger public safety.
While the resentencing court does not impose sentences that exceed the middle term stated by law, there are exemptions to the rule. For instance, if there exist aggravating circumstances that the judge or jury has proven the facts beyond any reasonable doubt at trial, then the resentencing court can deviate from the middle term of sentencing.
You do not qualify for resentencing if:
- You have a previous sexually violent crime conviction
- You have a prior controlled substance crime-related conviction
Find Sacramento Crimianal Defense Lawyer Near Me
The sentencing enhancement allows a judge to increase penalties. In other words, if you are convicted of the underlying crime, the judge will enhance your penalties with a consecutive and additional sentence. Lengthy sentences take considerable public resources, money, and time and adversely affect public safety. SB 81 is a perfect solution, especially for people of color and those living with mental illness.
If you have been arrested or under investigation, do not allow the police to make incorrect assumptions. Foos Gavin Law Firm, a seasoned law firm in Sacramento, has closely monitored Senate Bill 81's development and can submit your relevant petitions for resentencing, hold the prosecution and the court accountable and ask the relevant questions to ensure you do not face a wrongful sentencing enhancement. If you believe the changes implemented by SB 81 affect your criminal case, please call our legal office today at 916-779-3500 to schedule your free consultation. Our legal team has many years of experience representing defendants, understands what is at stake, and can protect your freedom, future, career, and life.