How does Senate Bill 1393 affect strike enhancements under the Three Strikes Law in California?

How does Senate Bill 1393 affect strike enhancements under the Three Strikes Law in California?

| January 06th 2023

Senate Bill 1393 became effective on January 1, 2019. In short, Senate Bill 1393 restores a trial court’s discretion to strike five-year sentencing enhancements that were previously mandatory under Penal Code section 667(a). This means that five-year enhancement for previous “serious felony” convictions are no longer mandatory.

Did SB 1393 pass?

Yes, this new law passed the California legislature and was signed into law on October 1, 2018, by Governor Jerry Brown. Now that it has passed, it is valid law in California for courts to apply.

What is a nickel prior under California law, and how does it relate to this new law?

Existing law under section 667(a) mandates a five year sentence enhancement for any person who was previously convicted of a prior serious felony (whether in California or in another state if the out-of-state offense would qualify as a serious felony under California law) on top of the sentence for the crime committed in the new case. The law also requires that this enhancement run consecutively, which means that a person will serve the five years after the time for the new case.

Lawyers and judges often call these five year sentence enhancements "nickel priors" because they add five years to someone's sentence.

“Serious felonies” means all “strikes,” including violent felonies under Penal Code section 667.5(c) and serious felonies under Penal Code section 1192.7(c). Examples include, but are not limited to,

  • Murder
  • Mayhem
  • Sodomy
  • Rape
  • Lewd acts with someone under 14
  • Assault with a deadly weapon
  • Arson
  • Robbery
  • Carjacking
  • Attempted murder

Previously, a trial judge had no discretion to strike this enhancement for a prior serious felony conviction. But effective January 1, 2019, the court now has the power to strike the enhancement. (Pen. Code, § 1385(a).) The court may also simply strike the punishment for the enhancement. (Pen. Code, ­§ 1385(b).)

If the trial court does strike the enhancement, that does not mean that the prior serious felony conviction comes off someone's record. Instead, it just means that the court will basically ignore that prior serious felony conviction for the purpose of the new sentence.

What does SB 1393 do?

SB 1393 gives trial judges back the power to strike, or get rid, five-year sentencing enhancements under Penal Code section 667(a). The law amended section 1385 to give judges discretion to get rid of enhancements. These enhancements apply whenever someone was previously convicted of a serious felony under the California Three Strikes Law. The trial judge used to be prohibited by law from striking these enhancements for prior serious felony convictions.

When is SB1393 effective?

SB1393 became effective on January 1, 2019.

Does the trial judge have to strike the five-year enhancement for a prior serious felony conviction?

No. SB1393 gave trial judges discretion to strike the enhancement. But they do not have to do so. A judge will look at many factors to determine whether to strike the five-year sentencing enhancement, such as the age of the prior conviction, the facts of the new case, the defendant’s criminal records, whether the defendant was suffering from mental-health or other issues, and others.

Is SB 1393 retroactive to old cases?

In short, the statute is not generally retroactive to cases that are already “final.” (See In re Estrada (1965) 63 Cal.2d 740, 744.) A conviction becomes final “when it has reached final disposition in the highest court authorized to review it.” (People v. Lopez (2020) 57 Cal.App.5th 409, 413.) That means that a case is final when the last appeal has been exhausted.

So for people who received five-year sentencing enhancements under Penal Code section 667(a) and whose cases were final prior to January 1, 2019, they sadly cannot benefit from this new law most of the time.

There is a potential "exception" to whether this new law is retroactive.

There is, however, an exception. Some new sentencing laws allow for a brand-new sentencing hearing if the person otherwise qualifies for resentencing. Some examples include defendants whose convictions for murder, attempted murder, or voluntary manslaughter were vacated under Penal Code section 1172.6 (SB1437) and defendants who have certain sentencing enhancements stricken under Penal Code sections 1172.7 and 1172.75 (SB483) relating to certain drug enhancements and one-year prison priors.

So, for example, if a defendant qualifies to have their one-year prison prior enhancement under Penal Code section 667.5(b) stricken under Penal Code section 1172.75 (SB483), then the defendant is entitled to a new sentencing hearing. At that hearing, “[t]he court shall apply . . . any other changes in law that reduce sentences or provide for judicial discretion . . . .” (Pen. Code, § 1172.75(d)(2).) This means that an attorney could argue that the judge use his or her discretion to go back and strike the five-year enhancement under Penal Code section 667(a).

Can I file a petition to request that the sentencing judge take away my five-year prior?

In short, no, you cannot file a petition under this new section. That is because the law does not allow for a defendant to file a motion in the trial court specifically under this new law.

But, if a case is pending in the superior court or on appeal, the law will apply to that case. That means that if a case is pending an appeal, the defense attorney can ask the sentencing court revisit the sentence at a hearing and potentially remove the nickel prior.

What do I do if I think my case qualifies for SB 1393?

If believe that you or your loved potentially qualify for a lesser sentence under the law, it is very important that you contact a knowledgeable criminal defense lawyer who is experienced with post-conviction proceedings. The law is continually changing, and you need a qualified lawyer to guide you to the correct result for your case.

Here at the Olen Firm, we have extensive experience in post-conviction proceedings, including all recent sentencing changes in California law. Contact us today for a free consultation regarding your case.

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