Emily Harris, November 06, 2018

The Fair and Just Sentencing Reform Act of 2018 – SB 1393 (Mitchell and Lara)

This year was an amazing year for Criminal Justice Reform in California. The weekend of September 30th in particular was a historic moment for criminal justice reform in California, as Governor Jerry Brown signed into law multiple reform bills, including SB 1393, authored by Senators Holly Mitchell and Ricardo Lara. SB 1393 restores the court’s discretion, in the interest of justice, to strike a five-year sentence enhancement for each prior serious felony conviction on a person’s record, when a person is currently convicted of a serious felony.

Do you know any one impacted by the five-year enhancement for prior serious convictions? Read our Frequently Asked Questions (FAQ’s) below for more information.

What does the Fair and Just Sentencing Reform Act do?

The bill amends Penal Code Sections 667 and 1385 to end the mandatory application of the 5-year sentence enhancement given for each prior serious felony (PC §1192.7(c) and PC §1192.8) on a person’s record at the time when a person is currently charged with a serious felony. Senate Bill 1393 was authored by State Senators Holly Mitchell (Los Angeles) and Ricardo Lara (Long Beach).

When does the law go into effect?

Judicial discretion for applying the 5-year sentencing enhancement will be restored on January 1, 2019. At that time, judges will be able to determine whether or not to apply the enhancement at sentencing based on the facts of the case in the interest of justice.

What happens between the time the Governor signs the bill and when it goes into effect?

Judges are technically still required to apply the enhancement for prior serious convictions until January 1st, 2019. If you might be sentenced between now and January 1, talk to an attorney about continuing your case until after January 1.

What happens to those who have already been sentenced under the enhancement?

Unfortunately, the Fair and Just Sentencing Reform is not retroactive. With a few very small exceptions, if a person has already been sentenced under the enhancement and the conviction is final (i.e., they are no longer on direct appeal), they are not impacted by this reform.

Here are the possibilities:

  • First, if there is an error in your sentence, you can appeal your sentence. If the court, on appeal, agrees that there is a mistake, they will send the case back to the sentencing judge for resentencing.
  • Second, if you have been sentenced within the last 120 days, the court has the authority to recall your sentence and resentence you under PC §1170(d)(1). You can invite the court to recall your sentence, although there is no formal petition or appeal.
  • Third, also under PC §1170(d)(1), after 120 days the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings or the County Correctional Administrator (County Sheriff) may make a recommendation to the court to recall your sentence and resentence you.
  • Fourth, AB 2942 (Ting), which goes into effect January 1st, 2019 amends Section 1170 of the Penal Code, authorizing a court to also accept recommendations from the District Attorney of the county in which the defendant sentenced, to recall a sentence and resentence that person to a lesser sentence.

If you think these might apply to you, talk with an attorney about this possibility.

Does SB 1393 apply to gun enhancements or drug enhancements?

No. SB 1393 is specific to prior serious felonies (PC §1192.7(c) and PC §1192.8). Although in 2017 two laws were signed that affect gun and drug enhancements: SB 620 (Bradford) ends the mandatory application of the gun enhancement (PC §12022.5 & PC §12022.53), and SB 180 (Mitchell) repeals the three-year enhancement for prior drug-related felonies (HSC §11370.2), with the exception of prior convictions involving a minor (HSC §11380). The process for resentencing is similar to what is described for SB 1393 in this document.

What paperwork needs to be filed with CDCR to be considered for a resentencing recommendation? 

None. The Office of Legal Affairs for the California Department of Corrections and Rehabilitation (CDCR) is working with the Office of Research to identify all individuals currently serving time in California with the 5-year sentence enhancement for a prior serious felony. The Classifications Services Unit and Case Records will process eligible individuals for consideration under PC §1170(d). Individual packets will then be drafted so that the CDCR Secretary can consider each candidate. Anyone the Secretary recommends for reclassification will receive necessary paperwork and the courts will be notified.

What is the timeline for consideration by the CDCR Secretary? 

The timeline is currently unknown. SB 1393 does not go into effect until January 1, 2019. According to CDCR, there are a large number of people who need to be reviewed, which will make the process longer. On the positive side, that means more people may benefit.

What is the process for requesting a re-sentencing recommendation from a District Attorney? 

There are two options. First, contact the District Attorney of the county in which the defendant was sentenced. Second, request a review from the Sentencing Review Project. At this time the Sentencing Review Project is available to review cases for persons who have already served 10 years in prison, involving excessive sentences (excluding sex offenses and cases involving homicide) and where appropriate, will support requests for DA’s to recommend a lesser sentence (www.sentencingreview.org).

What happens if an individual is recommended for resentencing? 

A resentencing recommendation does not guarantee a lesser sentence. The case will be referred to Trial Court and a judge will make a ruling on the case. However, no additional time can be added to the sentence.

For more information, please contact Emily Harris at the Ella Baker Center for Human Rights

Mail: 1970 Broadway, Suite 1125, Oakland, CA 94612

Email: emily@ellabakercenter.org  Phone: 510-285-8231