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Senate Bill 1393 gives judges discretion to dismiss 5-year prison enhancements

Posted by Neil Shouse | Oct 30, 2018 | 0 Comments

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Pursuant to Senate Bill 1393, California law now also states that a judge may strike a prior serious felony conviction to avoid the five-year enhancement, if the act furthers justice.

California law tacks on a five-year penalty enhancement (i.e., an additional five years in jail) for persons convicted of a serious felony, IF, they have a prior conviction for a serious felony.

But, pursuant to Senate Bill 1393, California law now also states that a judge may strike a prior serious felony conviction to avoid the five-year enhancement, if the act furthers justice.

SB 1393 was signed into law by California Governor Jerry Brown in September 2018. Prior to this signing, a judge was prohibited from dismissing the five-year penalty enhancement.

New Laws Under Senate Bill 1393

Under SB 1393, if a person with a prior serious felony conviction is convicted of another serious felony, California judges can strike the prior serious felony conviction in order to avoid the five-year penalty enhancement.

Please note, though, that judges can only strike the prior conviction when doing so is “in furtherance of justice.”

If a judge decides not to avoid a penalty-enhancement, then the defendant will serve an additional five years in prison for the prior felony conviction. And, the additional five-year term will run consecutively with the sentence for the new felony.

Laws Prior to Senate Bill 1393

SB 1393 significantly changed California's existing law on penalty enhancements for prior serious felony convictions. Under the State's old law, a judge was strictly prohibited from striking a prior serious felony conviction to avoid the five-year penalty enhancement.

This meant that if a defendant had a prior serious felony conviction, and was then convicted of another serious felony, he would automatically have to serve an additional five years in prison.

The reasoning behind Senate Bill 1393

A problem with California's old law was that it prevented judges from tailoring a sentence to such items as:

  • The specific facts of a case;
  • A defendant's criminal history;
  • The seriousness of the offense; and/or,
  • Other potentially mitigating circumstances.

This resulted in longer prison terms for many persons with prior serious felony convictions. For example, if a judge was able to consider the above items, he might have reduced the five-year mandatory term to one or two years, or none at all.

The net effect of longer prison terms is mass incarceration. This is not good because an over-abundance of inmates in jail puts a burden on prison staff and the criminal justice system.

Mass incarceration is also quite costly, and the hope is that SB 1393 will help save money. According to figures by the California Department of Corrections and Rehabilitation, recent years have seen approximately 1,700 sentence enhancements for inmates. Even if the new law only impacts 100 defendants a year, there would be 500 fewer inmates in prison after five years. Such a reduction in average daily prison population results in a savings of over $15 million.

Proponents of the new law also support it because it helps maintain a fairer justice system and it better protects low-income communities.

Senate Bill 1393 was co-authored by Senators Holly J. Mitchell and Ricardo Lara. The bill amends Penal Code Sections 667 and 1385.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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