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AB-931 Sentencing: dismissal of enhancements.(2021-2022)



Current Version: 06/06/22 - Amended Senate

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AB931:v95#DOCUMENT

Amended  IN  Senate  June 06, 2022
Amended  IN  Assembly  May 24, 2021
Amended  IN  Assembly  April 08, 2021
Amended  IN  Assembly  March 11, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 931

Introduced by Assembly Member Villapudua

February 17, 2021

An act to amend Section 13519.10 1385 of the Penal Code, relating to peace officer training. sentencing.


LEGISLATIVE COUNSEL'S DIGEST


AB 931, as amended, Villapudua. Peace officer training: duty to intercede. Sentencing: dismissal of enhancements.
Existing law prescribes certain criminal sentencing enhancements that increase the term of imprisonment for specified criminal offenses committed under circumstances, including those committed using a firearm, those committed for the benefit of a criminal street gang, and those committed by a repeat offender. Existing law requires a sentencing court to dismiss an enhancement if, after considering specified mitigating circumstances, the court determines that it is in the furtherance of justice to do so.
This bill would instead allow, but would not require, a sentencing court to dismiss an enhancement if the court determines that it is in the furtherance of justice to do so.
Existing law requires a court, in exercising its discretion to dismiss an enhancement, to consider and afford great weight to evidence offered by the defendant to prove that specified mitigating circumstances exist, including the allegation of multiple enhancements in a single case and that the application of an enhancement could result in a sentence of over 20 years. Existing law requires the dismissal of all enhancements beyond a single enhancement and the dismissal of all enhancements when the resulting sentence is over 20 years.
This bill would remove the requirement to dismiss enhancements in the above instances. The bill would make technical, nonsubstantive changes. By increasing the penalty for a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law requires specified categories of law enforcement officers to meet training standards pursuant to courses of training certified by the Commission on Peace Officer Standards and Training. Existing law requires the course or courses of the regular basic course for law enforcement officers to include, among other things, training on the duty to intercede.

This bill would require the commission to develop training on the duty to intercede, to include, among other elements, a robust discussion of the science of active bystandership. The bill would additionally require specified law enforcement officers to complete an updated course of instruction on the duty to intercede every 2 years. By imposing additional training costs on local law enforcement agencies, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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) Notwithstanding any other law, the court shall may dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
(2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. “Endanger public safety” means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

(3)While the court may exercise its discretion at sentencing, nothing in this subdivision shall prevent a court from exercising its discretion before, during, or after trial or entry of plea.

(A) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745.
(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.
(G) The defendant was a juvenile when they committed the current offense or any prior juvenile adjudication that triggers the enhancement or enhancements applied in this case.
(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) While the court may exercise its discretion at sentencing, nothing in this subdivision shall prevent a court from exercising its discretion before, during, or after trial or entry of plea.
(4) 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).
(5) 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.
(6) 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. A court may conclude that a defendant’s childhood trauma 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendant’s childhood trauma substantially contributed to the defendant’s involvement in the commission of the offense.
(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. A court may conclude that a defendant’s prior victimization 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, medical records, or records or reports by qualified medical experts, the court concludes that the defendant’s prior victimization substantially contributed to the defendant’s involvement in the commission of the offense.
(7) This subdivision shall apply to sentencings occurring after the effective date of the act that added this subdivision.

SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
SECTION 1.

(a)This act shall be known, and may be cited, as the 2021 Intervention Training for Law Enforcement Program.

(b)The Legislature finds and declares all of the following:

(1)President Obama’s Task Force on 21st Century Policing found that teaching police peer intervention has a powerful influence on encouraging and supporting officers to intervene and prevent their colleagues from committing acts of serious misconduct and criminal behavior.

(2)Police intervention and peer intervention training in law enforcement is seldom offered to law enforcement officers.

(3)The Active Bystandership for Law Enforcement (ABLE) (registered trademark) program was developed by Georgetown University Law Center to catalyze cultural shifts in how law enforcement officers proactively intervene to reduce the likelihood of harm to community members and officers.

(4)This police intervention and peer intervention training is rooted in the studies of multiple experts, including Dr. Ervin Staub, a holocaust survivor who has studied the psychology of violence and the psychology of passive bystandership for decades.

(5)Doctor Staub identified passive bystandership as failing to take action where circumstances would seem to require action, and has worked to develop trainings to advance active bystandership.

(6)Psychologists have identified common inhibitors to active bystandership that impact all professions and people of all cultures. The common inhibitors include pluralistic ignorance, diffusion of responsibility, ambiguity as to whether help is needed, perceived costs of providing assistance, concern about negative reactions to intervention, devaluation of the individuals needing assistance, and feelings that people are best able to take care of themselves.

(7)When the application of active bystandership training was examined in the airline industry, researchers found that subordinate crew members found it very difficult, particularly if they were still in their new-hire, probationary period, to challenge or suggest that a captain was making mistakes.

(8)This led safety advocates to call for the adoption of a four-step solution called “Probe, Alert, Challenge, and Emergency” (P.A.C.E.). ABLE (registered trademark) uses a similar program for law enforcement called “Probe, Alert, Challenge, and Take Action” (PACT).

(9)Whereas law enforcement officers are in need of ongoing training to combat the inhibitors of passive bystandership and to promote a culture where officers intervene to prevent other officers from violating the constitutional and statutory rights of others.

(c)It is the intent of the Legislature to direct the Commission on Peace Officer Standards and Training to study and adopt ABLE (registered trademark) or a training program that is at least as rigorous and as focused on cultural change as the ABLE (registered trademark) program.

SEC. 2.Section 13519.10 of the Penal Code is amended to read:
13519.10.

(a)(1)The commission shall implement a course or courses of instruction for the regular and periodic training of law enforcement officers in the use of force and shall also develop uniform, minimum guidelines for adoption and promulgation by California law enforcement agencies for use of force. The guidelines and course of instruction shall stress that the use of force by law enforcement personnel is of important concern to the community and law enforcement and that law enforcement should safeguard life, dignity, and liberty of all persons, without prejudice to anyone. These guidelines shall be a resource for each agency executive to use in the creation of the use of force policy that the agency is required to adopt and promulgate pursuant to Section 7286 of the Government Code, and that reflects the needs of the agency, the jurisdiction it serves, and the law.

(2)As used in this section, “law enforcement officer” includes any peace officer of a local police or sheriff’s department or the California Highway Patrol, or of any other law enforcement agency authorized by law to use force to effectuate an arrest.

(b)The course or courses of the regular basic course for law enforcement officers and the guidelines shall include all of the following:

(1)Legal standards for use of force.

(2)(A)Duty to intercede. The commission shall develop training on the duty to intercede training module which shall include, but not be limited to, all of the following elements:

(i)A robust discussion of the science of active bystandership, including an exploration of social science experiments that help explain the inhibitors to intervention.

(ii)Interactive facilitated discussions of the inhibitors to intervention, with a special focus on inhibitors at play in a hierarchical organizational structure.

(iii)Interactive discussions of where, how, and why deliberate intervention training has worked in other professions.

(iv)Multiple practical skills and tactics targeted at increasing the frequency and effectiveness of interventions, including actual practice using those skills and tactics.

(v)Interactive discussions of how intervention tactics can be used in a variety of settings, including to prevent misconduct, prevent mistakes, and promote officer health and wellness.

(vi)Meaningful live, facilitated scenario-based role plays.

(vii)The mental health and wellness risks of nonintervention.

(viii)The legal and practical risks of nonintervention.

(ix)The impact of nonintervention on communities and individual community members.

(x)A focus on the importance of developing a law enforcement culture in which intervention is not only encouraged, but expected, among members of a law enforcement organization regardless of the risk of the intervenor or the individual being intervened upon.

(xi)At least eight hours of both classroom instruction and extensive simulator-based training or live scenario-based training.

(B)The training required pursuant to paragraph (A) shall only be required for law enforcement officers who substantially interact with the public.

(3)The use of objectively reasonable force.

(4)Supervisory responsibilities.

(5)Use of force review and analysis.

(6)Guidelines for the use of deadly force.

(7)State required reporting.

(8)Deescalation and interpersonal communication training, including tactical methods that use time, distance, cover, and concealment, to avoid escalating situations that lead to violence.

(9)Implicit and explicit bias and cultural competency.

(10)Skills including deescalation techniques to effectively, safely, and respectfully interact with people with disabilities or behavioral health issues.

(11)Use of force scenario training including simulations of low-frequency, high-risk situations and calls for service, shoot-or-don’t-shoot situations, and real-time force option decisionmaking.

(12)Alternatives to the use of deadly force and physical force, so that deescalation tactics and less lethal alternatives are, where reasonably feasible, part of the decisionmaking process leading up to the consideration of deadly force.

(13)Mental health and policing, including bias and stigma.

(14)Using public service, including the rendering of first aid, to provide a positive point of contact between law enforcement officers and community members to increase trust and reduce conflicts.

(c)Law enforcement agencies are encouraged to include, as part of their advanced officer training program, periodic updates and training on use of force. The commission shall assist where possible.

(d)(1)The course or courses of instruction, the learning and performance objectives, the standards for the training, and the guidelines shall be developed by the commission in consultation with appropriate groups and individuals having an interest and expertise in the field on use of force. The groups and individuals shall include, but not be limited to, law enforcement agencies, police academy instructors, subject matter experts, and members of the public.

(2)The commission, in consultation with these groups and individuals, shall review existing training programs to determine the ways in which use of force training may be included as part of ongoing programs.

(e)(1)It is the intent of the Legislature that each law enforcement agency adopt, promulgate, and require regular and periodic training consistent with an agency’s specific use of force policy that, at a minimum, complies with the guidelines developed under subdivisions (a) and (b).

(2)Every peace officer, as defined in Section 830.1 or in subdivision (a), (b), or (c) of Section 830.2, shall complete an updated course of instruction on the duty to intercede as described in paragraph (2) of subdivision (b) every two years.

SEC. 3.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.