Court's Discretion to Strike Prior
Category > Court's Discretion to Strike Prior
Updated 2/23/2024SB 1393, allowing discretion to dismiss prior serious felonies applies retroactively.In light of the recent passage of SB 1393, the matter was remanded to permit the trial court to consider dismissing the prior serious felony conviction enhancements imposed under Penal Code section 667, subd. (a). The provisions became effective before defendant’s judgment was final, and the amended law applied to him retroactively.id: 26894
SB 1393, which gives trial courts discretion to strike serious felony enhancements, applies retroactively to cases not yet final when the law took effect.The recent amendments to Penal Code sections 667, subd. (a) and 1385, subd. (b), (provided by SB 1393) giving the trial courts discretion to strike serious felony enhancements apply retroactively to cases not yet final when the amendments took effect. id: 26183
Defendant was entitled to remand under SB 1393 to allow the trial court discretion to strike his five year enhancement under section 667, subd.(a).SB 1393 became effective while defendant’s case was pending on appeal. His case was remanded to allow the trial court discretion to dismiss his prior serious felony under Penal Code section 667, subd. (a), which was mandatory at the time of the original sentencing.id: 26082
Provision allowing the trial court discretion to dismiss section 667, subd. (a) enhancements applied retroactively to defendant’s case.Penal Code section 1385, subd. (b) was amended to allow trial courts to dismiss prior serious felony enhancements. The new provision became effective January 1, 2019. The law should be applied retroactively to defendant’s case that was not yet final on appeal. The case was remanded to allow the trial court to consider dismissing the five-year priors in the interest of justice.id: 26048
The trial court may not have understood it had discretion to dismiss the enhancements under section 1385 and so reversal for resentencing was required. The record did not show the trial court recognized that it had discretion to strike one or more of defendant’s drug priors alleged under Health and Safety Code section 11370.2, and expressly declined to do so. The matter was remanded to allow the trial court to consider the matter under the correct standard.id: 25212
Courts retain section 1385 discretion to strike enhancement for use of accelerant in arson cases despite introductory phrase in statute.Penal Code section 451.1, subd.(a)(5) provides for a sentence enhancement if arson is committed by use of an accelerant. The statute commences with the words "Notwithstanding any other law..." Absent any indica of legislative intent, the introductory phrase does not evidence a legislative direction to divest the trial courts of discretion under Penal Code section 1385 to strike the enhancement.id: 16624
Updated 3/7/2024SB 1393 applies retroactively. Senate Bill 1393 applies retroactively and defendant’s case was remanded to allow the sentencing court discretion to strike his prior serious felony conviction imposed under Penal Code section 667, subd. (a).id: 26301
Updated 3/4/2024A court may refuse to dismiss an enhancement under section 1385(c)(2) even absent concern for public safety. Defendant argued the sentencing court erred, on remand, by failing to properly apply SB 81, which amended Penal Code section 1385 to specify mitigating factors a court must consider when deciding whether to strike an enhancement. He claimed the matter needed to be remanded again because the court denied his request to dismiss the enhancement without making a finding that dismissing it would endanger society. However, a court retains discretion under section 1385(c)(2) to choose not to dismiss an enhancement in furtherance of justice for reasons other than public safety.id: 28117
Updated 3/4/2024Defendant, on remand to allow the court discretion to dismiss strike priors, was not entitled to have the motion heard by the original sentencing judge.SB 1393 gave trial court discretion to strike prior serious felony conviction enhancements. Defendant’s case was remanded to allow the court to exercise its discretion under the new law but the court declined to strike the priors. Contrary to defendant’s claim, he was not entitled to have his motion heard by the original sentencing judge.id: 26984
Updated 2/22/2024The trial court did not err by refusing to dismiss a serious felony prior on remand after finding defendant’s serious criminal history prevented it.In a previous appeal, defendant requested a remand to allow the court to exercise its new discretion under Penal Code section SB 1393 to dismiss the prior in light of the defendant’s history and the circumstances of the present case, leading the court to refer to the defendant as a “one man crime wave.” However, the matter was remanded again so that the court could apply another new provision, SB 136, that required it to strike the Penal Code section 6675 (b) prior prison term enhancements.id: 27076
Updated 2/4/2024Section 1385(c)(2)(B) does not obligate trial courts to dismiss multiple enhancements in every case.Following SB 81, Penal Code section 1385 now provides that the presence of one of nine mitigating factors weighs greatly in favor of dismissing the enhancement unless the court finds dismissing the enhancement could endanger public safety. The mitigating circumstance that exists when there are multiple enhancements in a single case and specifies that “all enhancements beyond a single enhancement shall be dismissed” does not require the court to dismiss all but one of the enhancements in every case with multiple enhancements. id: 27650
Updated 2/1/2024The CDCR, and not defendants, must initiate the action to resentence a defendant under SB 483.Years after defendant’s case became final the Legislature changed the enhancement laws invalidating the one year Penal Code section 667.5(b) prison priors and giving the courts discretion to dismiss the five year serious felony priors under section 667(a). Defendant filed a pro per petition for resentencing under SB 483. However, his petition was properly denied as the law requires that the action be initiated by the CDCR.id: 27909
Senate Bills 620 and 1393, which became effective while defendant’s case was pending on appeal, provide the trial court with discretion to strike firearm and serious felony prior enhancements, and even though the court was unsympathetic to defendant at sentencing, remand was ordered to allow the court to exercise its discretion.Defendant was convicted of murder and the jurors found he had a prior serious felony conviction , and that he personally used a firearm in the killing. While his appeal was pending, the legislature enacted Penal Code section 12022.53, subd. (h), which gives trial courts discretion to dismiss firearm enhancements in the interest of justice. The legislature also passed SB 1393, which gives the trial courts discretion to dismiss five-year prior serious felony enhancements under section 667, subd. (a). The law applies retroactively to the defendant’s case. Even though the trial court made comments at sentencing suggesting a lack of sympathy for the defendant, the defense never had the opportunity to argue for dismissal of the firearm use enhancements, or his prior serious felony enhancement. The matter was remanded for sentencing out of an abundance of caution.id: 26059
Defendant was estopped from complaining about the trial court's striking two serious felony enhancements pursuant to the plea bargain.Defendant argued the trial court lacked the authority to strike two five-year enhancements under Penal Code section 667, subd.(a). The court dismissed the enhancements pursuant to the plea bargain. Defendant believed that if the 10 years of enhancements were imposed the court would be required to dismiss a strike prior to comply with the plea bargain. However, defendant was estopped from complaining about the trial court striking two serious felony enhancements under section 667, subd.(a), after consenting to the acceptance of the plea bargain.id: 18121
Court erred in striking enhancements as neither factor stated was a reasonable circumstance in mitigation.The trial court abused its discretion in striking the two one-year enhancements pursuant to Penal Code section 667.5, subdivision (b) and the three year enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a). The court relied upon two factors in striking the three enhancements and neither was a proper factor in mitigation. First, waiver of a jury trial is not a factor in mitigation. Second, there was no substantial evidence defendant voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the process within the meaning of rule 423(b)(3) of the California Rules of Court. His guilty plea 131 days after his arrest was not at an early stage of the criminal process as a matter of law.id: 14008
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245