About SB81 (Penal Code 1385)
Updated: Oct 25, 2021
SB81 was just signed into law. You can read the text of the new law HERE. It will go into effect on January 1, 2022. This law amends Penal Code section 1385, which already allowed judges to dismiss certain enhancements. It expands judges’ discretion and jurisdiction to dismiss any and all enhancements. It also includes a list of factors (found under the letters capital A through I in the law) that should motivate a judge to decide to dismiss. Keep in mind: if your loved one doesn’t have any of these factors in his/her case, it doesn’t mean the law doesn’t apply to them. It just means that they don’t have the added persuasive impact to help get a judge to dismiss. It doesn’t mean it is impossible. Here is the important part for most of you reading this: the law is NOT RETROACTIVE. What that means is, it does not include a provision allowing those who are already sentenced (and whose cases are final) to petition or apply to have their enhancements dismissed from their sentences. I know, this is very sad news for many of you, but better to know the TRUTH than to be misled by some lawyer who will cheat you and steal your money with false promises. So, how DO people take advantage of this law? Four ways: 1) Anyone facing sentencing (for a recent crime, generally) after the date the law goes into effect will have this option, meaning their lawyer can urge the judge to dismiss any enhancement, even if they were convicted of it in a plea deal or trial verdict.
2) Anyone who was sentenced within 120 days before the law went into effect can ASK the judge to recall and resentence, using Penal Code 1170(d).
3) Anyone whose case is not final, i.e. it is still on direct appeal, or the defendant is on probation (not parole), qualifies to file a petition pursuant to People v. Estrada to get the benefit of this new law. For this, a defendant should seek help from their appellate lawyer, their trial lawyer, and new counsel. Don’t mess this up by filing pro per or with a jailhouse lawyer – you only get to file it once. Recent caselaw says that "not final" DOES include a case that is already in a resentencing proceeding (such as thru SB1437 or 1170(d)).
4) If someone is resentenced for any other reason, you’ll then have the benefit of all new laws that reduce punishment, which includes SB81. Some examples of how this could apply to your loved one: a. If you get a recommendation for resentencing pursuant to Penal Code 1170(d) from the DA or CDCR, and if the judge decides to resentence, this could be a chance to utilize SB81 to request dismissal of enhancements and substantially reduce the overall term. Remember that it is NOT mandatory - the judge has full discretion to say "no" to the request. BUT if you are in the process of asking the DA to recommend you, pointing out that several of the consideration factors in SB81 are applicable could help motivate a DA to actually recommend resentencing. b. If you are getting resentenced pursuant to a SB1437 (Penal Code 1170.95) petition. The new sentencing hearing will apply all current laws, including SB81. c. If you are sent for resentencing by CDCR as a result of an error in your current sentence. This is often called a “People v Hill letter” sent from CDCR back to the court. Typically, the judge just corrects the error, and changes nothing else, but the judge DOES have discretion at that time to apply new laws, including SB81, so it is worth advocating for it. d. If you have a successful habeas corpus petition on some other basis that relates to the sentence, such as new evidence showing a wrongful conviction or ineffective assistance of counsel, a strong claim of innocence, or cruel and unusual punishment. These types of habeases are RARE, but if successful, new sentencing laws would apply to any resentencing, including SB81.
For more info on how to get a resentencing hearing, please refer to my previous blog titled "Resentencing Primer." Bottom line is: SB81 by itself won't be grounds for resentencing, but if you can get in front of a judge for resentencing some other way, SB81 will apply.