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State Senate Approves, Advances To Assembly, SB 81 That Would Limit Judges Statewide In Applying Sentencing Enhancements For Certain Crimes; It's Similar To LA DA Gascón's Policies

LB State Senators Gonzalez Voted "Yes," State Senator Umberg "No Vote Recorded"


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(May 28, 2021, 7:05 p.m.) -- Following up on a story reported in March by LBREPORT.com, a Sacramento bill that would strike sentencing enhancements for those found guilty of certain serious crimes (echoing policies similar to those supported by LA County DA George Gascón) has cleared the state Senate and heads to the Assembly.

SB 81 by state Senator Nancy Skinner (D, Berkeley) passed on a 27-9-4 vote. It would restrict grounds on which judges can apply certain sentencing enhancements as detailed below.

State Senator Lena Gonzalez (D, LB-SE LA County) voted "yes." State Senator Tom Umberg (D, SE LB-west OC) was "no vote recorded."

[Salient SB 81 text]

(c)(1) Except as specified in paragraph (4), the court shall dismiss an enhancement if it is in the furtherance of justice to do so.
(2) There shall be a presumption that it is in the furtherance of justice to dismiss an enhancement upon a finding that any of the circumstances in subparagraphs (A) to (I), inclusive, are true. This presumption shall only be overcome by a showing of clear and convincing evidence that dismissal of the enhancement would endanger public safety.
(A) Application of the enhancement would result in a disparate racial impact.
(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.
(D) The current offense is connected to mental illness.
(E) The current offense is connected to prior victimization or childhood trauma.
(F) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5.

[LBREPORT.com note: Penal Code 667.5 lists "violent felonies" that count as strikes under CA's three strikes law:
Murder or voluntary manslaughter.
Mayhem.
Rape as defined in paragraph (2) or (6) of subdivision (a) of Penal Code Section 261 or paragraph (1) or (4) of subdivision (a) of PC Section 262.
Sodomy as defined in subdivision (c) or (d) of Penal Code Section 286.
Oral copulation as defined in subdivision (c) or (d) of Penal Code Section 287.
Lewd acts on a child under the age of 14 years as defined in Penal Code Section 288.
Any felony punishable by death or imprisonment in the state prison for life.
Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Penal Code Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in PC Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which has been charged and proved as provided in subdivision (a) of PC Section 12022.3, or Section 12022.5 or 12022.55.
Any robbery.
Arson in violation of subdivision (a) or (b) of Penal Code Section 451.
Sexual penetration as defined in subdivision (a) or (j) of Penal Code Section 289.
Attempted murder.
A violation of Penal Code Section 12308, 12309, or 12310 (with regard to destructive devices or explosives).
Kidnapping.
Assault with the intent to commit a specified felony, in violation of Penal Code 220 PC.
Continuous sexual abuse of a child, in violation of Penal Code Section 288.5.
Carjacking, as defined in subdivision (a) of Penal Code Section 215.
Rape, spousal rape, or sexual penetration, in concert, in violation of Penal Code Section 264.1.
Extortion, as defined in Penal Code Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code (relating to criminal street gang sentencing enhancements). Threats to victims or witnesses, as defined in Penal Code Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code (relating to criminal street gang sentencing enhancements).
Any burglary of the first degree, as defined in subdivision (a) of Penal Code Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.
Any violation of Penal Code Section 12022.53.
A violation of subdivision (b) or (c) of Penal Code Section 11418 (relating to weapons of mass destruction).

(G) The defendant was a juvenile when they committed the current offense or prior offenses.
(H) The enhancement is based on a prior conviction that is over five years old.
(I) Though a firearm was used in the current offense, it was inoperable or unloaded.
(3) The circumstances listed in paragraph (2) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (a).

Full May 26 state Senate vote tally:

Yes: Allen, Archuleta, Atkins, Becker, Bradford, Cortese, Dodd, Durazo, Eggman, Gonzalez, Hertzberg, Hueso, Kamlager, Laird, Leyva, Limón, McGuire, Min, Newman, Pan, Portantino, Roth, Rubio, Skinner, Stern, Wieckowski, Wiener
Noes: Bates, Borgeas, Dahle, Grove, Jones, Melendez, Nielsen, Ochoa Bogh, Wilk
NVR: Caballero, Glazer, Hurtado, Umberg

[Scroll down for further.]






The State Senate floor Legislative Analysis lists supporters/opponents as follows below:

<SUPPORT: (Verified 5/20/21) 

California Attorneys for Criminal Justice (co-source)
Californians for Safety and Justice (co-source)
A New Way of Life Reentry Project
American Civil Liberties Union of California
Asian Solidarity Collective
Bend the Arc: Jewish Action
California Catholic Conference
California Public Defenders Association
California Religious Action Center of Reform Judaism
Communities United for Restorative Youth Justice
Community Advocates for Just and Moral Governance
Democrats of Rossmoor
Drug Policy Alliance
Ella Baker Center for Human Rights
Fresno Barrios Unidos
Friends Committee on Legislation of California
Initiate Justice
Legal Services for Prisoners with Children
Pillars of the Community
Prosecutors Alliance of California
Re:store Justice
Rubicon Programs
San Francisco Public Defender
Showing Up for Racial Justice - Bay Area
Showing Up for Racial Justice - North County
Showing Up for Racial Justice - San Diego
Smart Justice California
Team Justice
Think Dignity
Time for Change Foundation
We the People – San Diego

OPPOSITION: (Verified 5/25/21)

California District Attorneys Association California Narcotic Officers' Association California Police Chiefs Association California State Sheriffs' Association Peace Officers Research Association of California San Diego County District Attorney's Office

Sponsor

Sponsor

Arguments pro/con as listed in the Senate floor Legislative Analysis:

ARGUMENTS IN SUPPORT: According to Smart Justice California:

California’s penal code has a multitude of sentence enhancements that can be added to a person’s term of incarceration. Current law allows judges to dismiss sentencing enhancements “in furtherance of justice.” This standard lacks clarity and does not provide judges clear guidance on how to exercise this discretion. Research examined by the Committee on the Revision of the Penal Code [CRPC] revealed that sentence enhancements were applied disproportionately to women, people of color, and those exhibiting mental health issues. Many states have reformed sentence enhancement processes and provided more guidance – for example, by limiting the use of enhancements to convictions that occurred within 5 years.

SB 81 establishes a presumption that judges would only apply sentence enhancements when there is clear and convincing evidence that not using the enhancement would endanger the public. By clarifying the parameters a judge must follow, SB 81 codifies a recommendation made by the CRPC to improve fairness in sentencing and help ensure that penalties more closely reflect the circumstances of the crime.

Sponsor


ARGUMENTS IN OPPOSITION: According to the California State Sheriffs’ Association: SB 81 seeks to limit the application of many enhancements, including in circumstances in which multiple enhancements are alleged in a single case or the total sentence is over 20 years, the current offense is connected to mental health issues, the current offense is connected to prior victimization or childhood trauma, the current offense is nonviolent, or the enhancement is based on a prior conviction that is over five years old. Some of these conditions are subjective and potentially difficult to demonstrate or prove. Others, including the circumstances wherein multiple enhancements are alleged or a prior conviction is more than five years old, do not necessarily provide enough information as to whether an enhancement enacted by the Legislature or California voters should ultimately be imposed.

Unfortunately, this bill creates several conditions under which otherwise appropriate sentence enhancements that would be imposed based on the nature of the offense and the actions taken by the offender are negated. Instead, a court would be permitted to decline to dismiss a charged sentencing enhancement upon a showing by clear and convincing evidence that dismissal of an enhancement would endanger public safety. This showing would be in addition to existing law that not only requires a defendant to be found guilty beyond a reasonable doubt but also requires enhancements to generally be pled and proved.

Support really independent news in Long Beach. No one in LBREPORT.com's ownership, reporting or editorial decision-making has ties to development interests, advocacy groups or other special interests; or is seeking or receiving benefits of City development-related decisions; or holds a City Hall appointive position; or has contributed sums to political campaigns for Long Beach incumbents or challengers. LBREPORT.com isn't part of an out of town corporate cluster and no one its ownership, editorial or publishing decisionmaking has been part of the governing board of any City government body or other entity on whose policies we report. LBREPORT.com is reader and advertiser supported. You can help keep really independent news in LB similar to the way people support NPR and PBS stations. We're not non-profit so it's not tax deductible but $49.95 (less than an annual dollar a week) helps keep us online.

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