Assembly Bill 333 – Changes to proof of criminal street gang enhancements. Effective January 1, 2022, A.B. 333 creates new restrictions on how Penal Code § 186.22 gang enhancements can be proven. It removes looting, vandalism, and identity theft from the crimes that define a pattern of criminal gang activity. It also prohibits the use of the charged offense to prove the pattern of criminal gang activity and changes the definition of “criminal street gang” to require proof that members of the gang collectively engage in a pattern of criminal gang activity. The bill requires a separate trial upon request of defendant, of gang offenses and gang enhancements from non-gang related counts. Criminal justice attorneys will likely to argue that A.B. 333 applies to non- final criminal cases. The new law is not likely to apply to final cases.
Senate Bill 180 (and Senate Bill 483) – Eliminating Most Drug Trafficking Recidivism Enhancements. In the past, if a person was convicted of a drug trafficking offense, the sentence could be enhanced by consecutive terms of three years for each prior conviction of a drug trafficking offense under Health and Safety Code § 11370.2. Effective January 1, 2018, the law changed so that this type of enhancement can be added only if the prior conviction was for a violation or conspiracy to violate Health and Safety Code § 11380 (using or employing a minor in the sale or possession for sale of specified controlled substances). Previously, this law applied only to cases that were not yet final when S.B. 136 took effect in January 1, 2020, and did not apply to a final cases Effective January 1, 2022, S.B. 483 makes S.B. 136 applicable to all incarcerated people, even those whose cases are final. If you are serving an enhancement that was repealed by S.B. 180, CDCR or county jail officials are required to notify the sentencing court, which must then resentence you. It is expected that CDCR and jail officials will be screening and referring cases in early 2022.
SenateBill1393–Discretion for Judges to Strike Five Year Prior Serious Felony Conviction Enhancements. In the past, Penal Code § 667(a) required a sentencing court to add a five-year enhancement for each prior serious felony conviction that had been charged and tried separately, and Penal Code § 1385(b) stated that courts did not have discretion to strike § 667(a) enhancements. Effective January 1, 2019, the law changed so that so that sentencing courts have discretion to strike or dismiss § 667(a) enhancements if it is in the “interests of justice.” A.B. 333 applies to non-final criminal cases. It does not apply to cases that were already final when the new law took effect.
Senate Bill 81 – Presumptions in Favor of Dismissing Enhancements in Some Circumstances. Effective January 1, 2022, S.B. 81 amends Penal Code § 1385 to require courts to give “great weight” to evidence of certain mitigating circumstances when exercising its discretion about whether to impose or dismiss any type of enhancement. A mitigating circumstance “weighs greatly in favor” of dismissing the enhancement, unless the court finds that dismissal would create a likelihood that the person would cause physical injury or serious danger to others. However, S.B. 81 states that it applies only to future cases in which sentencing occurs after January 1, 2022. In cases where S.B. 81 does apply, the relevant mitigating circumstances are:
“(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.”
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