Senate Bill 81 Gives Judges the Discretion to Strike Enhancements 

Senate Bill 81 (“SB 81”) is a pivotal piece of legislation that dramatically changed the landscape of California sentencing procedures. While SB 81 is undeniably relevant to anyone with a current case in the California criminal justice system, it may also be used by inmates who were sentenced years ago to help them obtain a resentencing hearing. Read on to learn more about SB 81, who can benefit from the law, and how to pursue a resentencing hearing based on monumental changes to the justice system. 

What Is SB 81?

Senate Bill 81 (Reg. Sess. 2021-2022) is one of the more dramatic criminal justice reforms California lawmakers have enacted in recent years. Drafted by Nancy Skinner of California’s 9th District, SB 81 is straightforward in its approach in that it requires a judge to strike or dismiss any sentencing enhancement “if it is in the furtherance of justice to do so.” SB 81 is not codified in California Penal Code § 1385.

Prior to the passage of SB 81, judges had the discretion to strike an enhancement, but they were not required to do so, even if they determined that the enhancement would result in an unfair or unjust result. 

However, SB 81 takes it a step further as well by providing a list of factors that a judge must “consider and afford great weight” when assessing whether striking a sentencing enhancement is in the interests of justice. These considerations include the following:

  • Whether application of the enhancement would result in a disparate racial impact.
  • Whether the prosecutions alleged multiple enhancements.
  • Whether application of the enhancement could result in a sentence of over 20 years.
  • Whether the offense is related to the defendant’s mental health issues.
  • Whether the offense is related to the defendant’s prior victimization or childhood trauma.
  • Whether the offense is nonviolent.
  • Whether the defendant was a juvenile at the time of the offense.
  • Whether the enhancement is based on a prior conviction that is more than five years old.
  • Whether any firearm used in the offense was inoperable or unloaded.

SB 81 also allows judges to consider any other circumstances that would make the application of the enhancement against the interests of justice. 

While most of these factors are self-explanatory, a few require additional discussion. 

The Impact of Mental Illness Under SB 81 

Under Cal. Penal Code § 1385, which is the statute that SB 81 modified, subsection (5) explains how courts should interpret evidence of a defendant’s mental illness. More specifically, § 1385 provides that a “mental illness” can be any mental disorder referenced in the most recent Diagnostic and Statistical Manual of Mental Disorders (currently, DSM-5-TR). The statute specifically lists bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder as conditions that qualify as a mental illness. However, § 1385 also specifically excludes antisocial personality disorder, borderline personality disorder, and pedophilia from the list of qualifying disorders. 

Having a diagnosis of a mental illness, however, is not alone sufficient to trigger SB 81’s mitigating effect; the crime must have been “connected” to the defendant’s mental illness. Regarding this point, § 1385 provides that a crime is connected to a mental illness if the court concludes that the defendant’s mental illness substantially contributed to the defendant’s involvement in the commission of the offense.

This requires the defendant, through their attorney, to convince the court that the defendant’s actions were influenced by their diagnosis. To do this, defendants can present a wide range of evidence, including police reports, court transcripts, witness statements, statements from mental health providers, medical records, medical expert reports or testimony, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.

The Impact of Childhood Trauma and Prior Victimization Under SB 81

SB 81 requires a court to give mitigating effect to a defendant’s prior victimization or childhood trauma if the court believes that they were “connected” to the crime. In this context, childhood trauma refers to physical, emotional, or sexual abuse, as well as physical or emotional neglect. Similarly, prior victimization refers to past intimate partner violence (domestic violence), sexual violence, or human trafficking, or if a defendant has experienced psychological or physical trauma related to abuse, neglect, exploitation, or sexual violence.

As is the case with mental illnesses, an experienced California criminal appeals attorney can help meet this threshold requirement by presenting evidence from police reports, court transcripts, witness statements, statements from mental health providers, medical records, medical expert reports or testimony.

Is SB 81 Retroactive?

SB 81 is not retroactive, meaning those whose convictions and sentences were final at the time the bill passed in 2021 cannot obtain a resentencing hearing strictly based on the law’s passage. However, that doesn’t mean that inmates whose sentences were final cannot inure any benefit from the recently passed legislation. 

Among California’s criminal justice reform measures are various avenues inmates can use to obtain resentencing hearings. For example, under AB 2942, an inmate can petition the court for a resentencing hearing if they first obtain a recommendation from the District Attorney in the county where they were convicted. Similarly, inmates can file an Application for Commutation of Sentence with the Governor’s office. These are alternate ways of obtaining a resentencing hearing for those who do not qualify for relief under SB 81 and consider, among other things, whether the inmate’s current sentence is in the interests of justice.  One consideration when determining whether a sentence is in the interests of justice is whether there have been any major changes in the law that would make it likely that the inmate would have received a more lenient sentence had they been sentenced today rather than when they were actually sentenced. Thus, to the extent that a judge would likely have stricken an inmate’s enhancement if the sentencing was today, that inmate may have a strong case for character-based relief through an AB 2942 Petition or Application for Commutation of Sentence.

Are You Serving a Lengthy Sentence Based on an Old Conviction?

If you are serving a sentence from decades ago, SB 81 and other criminal justice reform measures may have opened up doors that previously weren’t available to you. To learn more, and to schedule a free consultation with a California criminal appeals attorney to discuss your case, give Power Trial Lawyers a call today at 213-800-7664. You can also connect with us through our secure online contact form.

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