SB 81

Senate Bill 81 — An Explanation by an Appeals Attorney

As explained by renewed California criminal appeals lawyers, Senate Bill 81 (Reg. Sess. 2021-2022) is new legislation recently introduced to the Senate which, if passed and signed into law by the governor, would create a presumption that enhancements should be dismissed in the interests of justice in certain situations, as outlined in more detail below.

In this article, California criminal appeals attorney Matthew Barhoma, founder of Power Trial Lawyers, provides information on this process, including:

1. What is Senate Bill 81?
2. How SB 81 Could Apply to Current Inmates
3. The Impact of SB 81
4. How an Appeals Lawyer Can Help

What is Senate Bill 81?

Senate Bill 81 (“SB 81”) would “require a court to dismiss an enhancement if it is in the furtherance of justice to do so,” “creat[ing] a presumption that it is in the furtherance of justice to dismiss an enhancement in specified circumstances” which can “only [be] overcome upon a showing by clear and convincing evidence that dismissal of the enhancement would endanger public safety.” See Sen. Bill 81 (Reg. Sess. 2021-2022) § 1, amending Pen. Code § 1385, subd. (c)(1)-(2).

The Bill goes on to identify the following circumstances as those in which dismissal should be presumed to be appropriate:

1. Application of the enhancement would result in a disparate racial impact.
2. Multiple enhancements are alleged, in which case all but one enhancement should be dismissed.
3. The application of an enhancement could result in a sentence of over 20 years.
4. The offense is related to mental health issues.
5. The offense is connected to prior victimization or childhood trauma.
6. The offense is nonviolent.
7. The defendant was a juvenile when they committed the instant offense or prior offenses.
8. The enhancement is based on a prior conviction that is over five years old.
9. A firearm was used in the offense but was inoperable or unloaded.

The amended section would also allow for the court to cite other reasons for striking enhancements where appropriate and in the interests of justice.

While this Bill is in the preliminary stages, if it is approved by both the Senate and Assembly and signed into law by the governor, it would become law.

How SB 81 Could Apply to Current Inmates

Senate Bill 81 does not indicate that it will be applied retroactively. It is likely that it will apply retroactively to non-final cases as of the effective date of the law pursuant to In In re Estrada (1965) 63 Cal.2d 740, 748 (legislative intent is paramount, however, where not clearly delineated, an amendment to a criminal statute that mitigates punishment operates retroactively so that the lighter punishment is imposed). However, it is not as likely that it will apply retroactively to final cases. Of course, this is a matter that remains to be litigated and Power Trial Lawyers will fight diligently for all clients reasonably falling within the Bill, should it be passed and signed into law.

The Impact of SB 81

With thousands of inmates currently being sentenced to enhancement time, the amendments proposed in SB 81 could drastically reduce the lengths of newly imposed prison terms significantly, as well as the terms of certain qualifying current inmates.

How an Appeals Lawyer Can Help

The journey from a bill to a law can be a long and somewhat complex one. Once a Senate Bill is introduced to the Senate, it must be passed by the Senate, move to the Assembly and be passed by that faction of the legislature as well. If both houses pass the SB 81, it will go to the governor – currently Governor Newsom – to be signed. The governor may or may not sign it. If he does, it will become law.

Appeals attorney Matthew Barhoma serving all of California is closely monitoring the development of Senate Bill 81 as it passes through the Senate and Assembly and eventually reaches the governor. If passed and signed into law, Power Trial Lawyers will be fully prepared to submit the necessary petitions for resentencing immediately upon the effective date of the changes to law and plans to stand at the forefront of litigating for application of the law to all reasonably possible circumstances.

If you believe the changes which may be implemented by Senate Bill 81 impact your case or the case of someone you love, contact Power Trial Lawyers today to have your case assessed.