Are there felony enhancements in Los Angeles County?

Posted on December 16, 2020

UPDATED FEBRUARY 9, 2021

As of December 8, 2020, LADA (Los Angeles District Attorney’s Office) has stopped filing sentencing enhancements in felony cases in accordance with Special Directive 20-08. The only exceptions are cases involving involving children, the elderly, and hate-motivated crimes

Which sentencing enhancements have LADA stopped filing?

With the exception of cases involving vulnerable victims, L.A. County prosecutors will no longer file sentencing enhancements. Some of the more common ones include the following:

• Strike enhancements under the Three Strikes law (Penal Codes 667 & 1170.12 PC), including juvenile strikes and second strikes
• “5 year prior” enhancements, “3 year prior” enhancements, and Prop 8 enhancements (Penal Codes 667 & 667.5 PC)
• STEP enhancements, a.k.a. gang enhancements (Penal Code 186.22 PC)
• Bail or O.R. violations (Penal Code 12022.1 PC)
• Special Circumstances allegations

Note that this new policy does not apply to charges where a previous conviction is an element of the crime. Three examples of these felonies include:

1. Second or successive DUI (Vehicle Code 23152 VC)
2. Second or successive domestic violence (Penal Code 273.5 PC)
3. Being a felon in possession of a firearm (Penal Code 29800(a)(1) PC)

When can defendants get probation?

As long as a crime is probation-eligible, LA County courts must grant probation unless there are “extraordinary circumstances” that justify a state prison sentence. And if the charge is not probation-eligible, the court must grant a sentence on the low end of the penalty range unless there are “extraordinary circumstances” that justify a higher sentence.

The appropriate bureau director must approve what these extraordinary circumstances are. Potential ones include:

• The defendant is a repeat offender.
• The defendant poses a health and safety risk.
• The defendant had a deadly weapon.

In short, courts presume that defendants warrant the least amount of punishment allowed under the law. And the burden is on prosecutors to prove to the court that harsher punishments are warranted.

What will happen to past cases and pending cases?

For pending charges in LA County, prosecutors are instructed to amend the charging documents so that the enhancements are removed. For cases sentenced within 120 days of December 8, 2020, prosecutors may not oppose the defendants’ request to be resentenced without enhancements. And for any earlier cases, defense counsel may request a resentencing hearing to argue for the enhancements to be removed.

Sentencing enhancements only serve to increase recidivism.

Why has LADA stopped filing felony enhancements?

Increasing felony sentences through enhancements is a relic of the “tough on crime” era. But instead of having a deterrent effect, enhancements accomplished nothing but keeping people capable of being rehabilitated in prison for longer. Furthermore, these enhancements disproportionately affect people of color.

In fact, increasing sentences only heightens the odds of recidivism (reoffending) once the defendants get released from prison (if they ever are). By ending enhancements, defendants have the opportunity to get on with their lives much more quickly and work towards a better future.

Many of the people currently in prison were convicted of non-violent crimes and are capable of changing their lives. But they cannot as long as they remain incarcerated. Through minimizing felony sentences and steering these people towards constructive treatment options, they may be able to reform themselves. And this in turn will serve the public interest and promote public safety.

Read LADA Special Directive 20-08 and amendments for the full policies.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.