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SB-81 Sentencing: dismissal of enhancements.(2021-2022)

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Date Published: 04/27/2021 09:00 PM
SB81:v95#DOCUMENT

Amended  IN  Senate  April 27, 2021
Amended  IN  Senate  April 08, 2021
Amended  IN  Senate  March 23, 2021
Amended  IN  Senate  February 08, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 81


Introduced by Senator Skinner

December 15, 2020


An act to amend Section 1385 of the Penal Code, relating to sentencing.


LEGISLATIVE COUNSEL'S DIGEST


SB 81, as amended, Skinner. Sentencing: dismissal of enhancements.
Existing law generally authorizes a court to dismiss an action or to strike or dismiss an enhancement in the furtherance of justice.
This bill would, except as specified, require a court to dismiss an enhancement if it is in the furtherance of justice to do so. The bill would create a presumption that it is in the furtherance of justice to dismiss an enhancement in specified circumstances. The bill would state that this presumption is only overcome upon a showing by clear and convincing evidence that dismissal of the enhancement would endanger public safety.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1385 of the Penal Code is amended to read:

1385.
 (a) The judge or magistrate may, either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading.
(b) (1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).
(2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a).
(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 health issues. mental illness.
(E) The current offense is connected to prior victimization or childhood trauma.
(F) The current offense is nonviolent. not a violent felony as defined in subdivision (c) of Section 667.5.
(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).
(4) For the purposes of subparagraph (D) of paragraph (2), a mental illness is a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. A court may conclude that a defendant’s mental illness was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental illness substantially contributed to the defendant’s involvement in the commission of the offense.
(5) For the purposes of this subdivision, the following terms have the following meanings:
(A) “Childhood trauma” means that as a minor the person experienced physical, emotional, or sexual abuse, physical or emotional neglect, or had a household member who experienced mental illness, a substance use disorder, intimate partner violence, absence due to divorce or separation, or incarceration.
(B) “Prior victimization” means the person was a victim of intimate partner violence, sexual violence, or human trafficking, or the person has experienced psychological or physical trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.

(4)

(6) This subdivision does not apply to an enhancement if dismissal of that enhancement is prohibited by any initiative statute.

(5)

(7) This subdivision shall not apply retroactively.