Memorandum 2020-11 - California Law Revision Commission

COMMITTEE ON REVISION OF THE PENAL CODE

Memorandum 2020-11

STAFF MEMORANDUM

September 10, 2020

Sentencing Enhancements: Overview

At its September 2020 meeting, the Committee on Revision of the Penal Code will address sentencing enhancements. This memorandum gives general background on sentencing enhancements -- with a focus on the most commonlyused ones -- and collects possible recommendations for the Committee's consideration.

The information presented here reflects discussions that Committee staff have had with stakeholders across California on every side of these issues. In examining sentencing enhancements, the Committee's goal should be how to best improve public safety while reducing unnecessary incarceration, improving equitable outcomes, and putting scarce state and local resources to their best use. There is no rigorous empirical research into how sentencing enhancements impact public safety, but other research has shown that long sentences -- which are created in part by sentencing enhancements -- have diminishing returns when measured by crime rates and the costs of incarceration.1 In addition to surveying existing research, the Committee is also making extensive efforts to gather and analyze its own data on these and other issues.2

A supplement to this memorandum, which will be released shortly, will present written submissions from panelists for the meeting.

1. See, e.g., Steven Raphael and Michael A. Stoll, Why Are So Many Americans in Prison?, Chapter 7: Incarceration and Crime (2013)

2. Government Code ? 8286 (Committee's data gathering statute).

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BACKGROUND

There are more than 100 sentencing enhancements spread across California's laws.3 As of September 2016, 80% of people in CDCR's prisons had at least one sentencing enhancement and 25% had three or more.4

Sentencing enhancements are of two types: "conduct"5 and "status"

enhancements. Conduct enhancements involve how a criminal offense was committed -- for example, if a gun was involved6 or if serious injury was caused7

-- while status enhancements use a defendant's criminal history, such as a prior conviction for a "serious" or "violent" felony offense.8

While sentencing enhancements often dramatically increase a sentence, they

have less of an effect on non-violent felony offenses that are served in prison. This

is because, under Proposition 57's early parole rules, people serving prison

sentences for non-violent felony offenses are eligible for release once they have

completed their main prison term -- which does not include any time added by enhancements.9

Some sentencing enhancements, such as gun, gang, and great bodily injury

enhancements, can also have significant secondary effects because they cause the

underlying offense to be classified as violent or serious. If an offense is reclassified

as serious or violent, it can be used later as a "strike" under the Three Strikes law.

And if an offense is reclassified as violent, it lessens the amount of good time someone can receive off their sentence10 and may preclude early release under Proposition 57.11

3. CJER Felony Sentencing Handbook, Enhancement Provisions (2020). The Penal Code used to list all the enhancements in one place in ? 666.7, but that section was removed in 2006 because it was too difficult to keep it up to date. See Asm. Com. On Public Safety, Analysis of Sen. Bill No. 1422 (2005?2006 Reg. Sess.) June 27, 2006, p. 5.

4. Ryken Grattet, Sentence Enhancements: Next Target of Corrections Reform?, PPIC Blog, September 27, 2017 .

5. Conduct enhancements are also known as "specific" enhancements. A partial list appears in Penal Code ? 1170.11. See also California Criminal Law Procedure and Practice (Cal CEB) ? 37.13 (listing conduct enhancements).

6. Penal Code ? 12022(a)(1). 7. Penal Code ? 12022.7(a). 8. Penal Code ? 667(e). "Serious" offenses are defined in Penal Code ? 1192.7(c). "Violent" offenses are defined in Penal Code ? 667.5(c). "Violent" offenses include crimes from murder to burglary of an inhabited dwelling to criminal threats. Penal Code ?? 667.5(c)(1), (21), (38). 9. 15 CCR ? 3490(f) & (d) (defining "nonviolent parole eligibility date" to exclude any time imposed by sentencing enhancements). See also Cal. Const., art. I, ? 32(1)(A) (same). 10. 15 CCR ? 3043.2(a)(2). 11. Cal. Const., art. I, ? 32(1); 15 CCR ? 3490(c) ("'Violent felony' is a crime or enhancement as defined in subdivision (c) of Section 667.5 of the Penal Code."). See also In re Mohammad, 42 Cal.

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Under Penal Code Section 1385, a court has discretion to ignore (or "strike")

many enhancements.12 Beyond saying that a court should exercise this discretion

"in furtherance of justice," the Penal Code provides no guidance about how judges

should make these decisions.13

EFFECTS ON INCARCERATION

Though there are dozens of sentencing enhancements available to prosecutors,

just a handful appear to be adding significantly to how long people are

incarcerated in California. Though there is no similar statewide information, an

analysis of twelve years of data (2005 to 2017) from San Francisco concluded that

while only 13% of cases were enhanced, sentencing enhancements caused 25% of

all time spent in jail or prison.14 Half of the time added by enhancements came

from two criminal history enhancements, Three Strikes and a five-year

enhancement for a prior serious felony conviction. The other half of the time added

to sentences was largely driven by gun enhancements.15

While the San Francisco data may not be the best model for statewide trends,

other data at a more general level shows similar trends.16 As noted, the great

majority of people in prison have at least one sentencing enhancement, and a

App. 5th 719, 726?29 (2019) (if non-violent felony offense has been designated as the "principal" term by sentencing court, other convictions for violent offenses do not preclude early parole consideration).

12. Penal Code ? 1385(a). Some of the enhancements that cannot be struck include predicate circumstances for very serious sex offenses, Penal Code ? 667.61(g), prior convictions for habitual sex offenders, Penal Code ? 667.71(d), and enhancements that preclude serving a sentence in county jail. Penal Code ? 1170(f), (h)(3). When a court strikes an enhancement, it may do so for all purposes or just for sentencing purposes. Penal Code ? 1385(b)(1). If an enhancement is struck for all purposes, it is not considered when fashioning a sentence or when calculating good time credits. If an enhancement is struck only for sentencing purposes, the enhancement does not add to a sentence but may still reduce good time credit because the credits are calculated as if the enhancement was still in place. See In re Pacheco, 155 Cal. App. 4th 1439, 1444?45 (2007).

13. The California Rules of Court do provide some guidance: "the court may consider the effect that striking the enhancement would have on the status of the crime as a strike, the accurate reflection of the defendant's criminal conduct on his or her record, the effect it may have on the award of custody credits, and any other relevant consideration." Cal. Rules of Court, Rule 4.428(b). The California Supreme Court has also explained that "courts will exercise this power in a careful and thoughtful manner. The wise use of this power will promote the administration of justice by ensuring that persons are sentenced based on the particular facts of the offense and all the circumstances. It enables the punishment to fit the crime as well as the perpetrator." People v. Williams, 30 Cal. 3d 470, 489 (1981).

14. Elan Dagenais, Raphael Ginsburg, Sharad Goel, Joseph Nudell, and Robert Weisberg, Sentencing Enhancements and Incarceration: San Francisco, 2005?17, Stanford Computational Policy Lab, October 17, 2019, 1.

15. Id. 16. This memo uses four different data sources to present the most recent information available for different classes of enhancement. All of the data pre-dates any COVID-19 prison releases..

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significant number have three or more.17 Aside from sentences made longer by California's Three Strikes law, the most common sentencing enhancement was an additional year for a prior prison or jail term18 -- an enhancement that was recently repealed.19

The next most common enhancements were:

? Having a prior serious felony conviction ? Gang enhancements ? Causing great bodily injury ? Gun enhancements20

Each of these, along with other relevant topics, is discussed below.

Conduct Enhancements Based on the Nature of the Offense

The following conduct enhancements are addressed in the order of how many prisons sentences they impact.

Gang Enhancements

In 1988, the Legislature passed the Street Terrorism Enforcement and Prevention (STEP) Act.21 Among other things, this law created "gang enhancements," which allow adding 2 to 10 years to a felony sentence if the offense can be connected to a gang.22 (The current version of this law is attached as Exhibit A.) As of September 2019, 10,535 people in CDCR custody had a gang enhancement and 92% of those people were either Black or Latinx.23 Since 2011, the number of people with gang enhancements in CDCR has risen by more than 40% even as the overall prison population has dropped, which suggests that these

17. Grattet, Sentence Enhancements: Next Target of Corrections Reform? 18. Id. 19. SB 136 (Weiner). 20. Grattet, Sentence Enhancements: Next Target of Corrections Reform?

21. Penal Code ? 186.20. See generally People v. Gardeley, 14 Cal. 4th 605, 615 (1996). This memo

does not discuss the CalGang database, which allows law enforcement to collect and share

information about a person's alleged gang membership. The CalGang database has come under

heavy scrutiny in recent years but presents issues distinct from a prosecutor's use of gang

enhancements. See California State Auditor, The CalGang Criminal Intelligence System (2016).

22. Penal Code ? 186.22(b). In passing the law, the Legislature explained -- with language in the

Penal Code to this day -- that "California is in a state of crisis which has been caused by violent

street gangs whose members threaten, terrorize, and commit a multitude of crimes against the

peaceful citizens of their neighborhoods." Penal Code ? 186.21. The goal of the STEP Act was "the

eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity

and upon the organized nature of street gangs, which together, are the chief source of terror created

by street gangs." Id.

23. Aben? Clayton, 92% Black or Latino: the California Laws that Keep Minorities in Prison, The

Guardian,

November

26,

2019

.

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enhancements are an important driver of the amount of incarceration in California's prisons.24

For non-serious and non-violent felonies, 2, 3, or 4 additional years may be added to a sentence for a gang enhancement.25 If the offense is a serious one, the enhancement is 5 years; if the offense is violent, the enhancement is 10 years.26 Any felony that has a gang enhancement is considered a "serious" felony and is therefore a strike27 and requires the person to serve the sentence in state prison, not county jail.28

Much harsher penalties apply for a smaller subset of felonies. If the offense is extortion or threats to victims or witnesses, the sentence must be seven years to life.29 And if the offense is a home invasion robbery or shooting at an inhabited house or vehicle, the sentence is fifteen years to life.30

The gang enhancement law also contains a provision allowing it to be applied to misdemeanors, such as a graffiti case,31 which then allows punishment of one, two, or three years.32 None of the other enhancements in this memo can be applied to misdemeanor offenses.33

For the enhancement to apply, an intricate set of requirements must be proved by the prosecution: (1) a felony was committed "for the benefit of, at the direction of, or in association" (2) with a "criminal street gang" and (3) the felony was committed with the "specific intent to promote, further, or assist in any criminal conduct by gang members."34

24. Id. 25. Penal Code ? 186.22(b)(1)(A). When the law was first passed in 1988, the penalties were one, two, or three years. See Gardeley, 14 Cal.4th at 615. 26. Penal Code ? 186.22(b)(1)(B)?(C). 27. Penal Code ? 1192.7(c)(28); People v. Briceno, 34 Cal.4th 451, 456 (2004) ("the definition of `serious felony' in section 1192.7(c)(28) also includes `any felony offense' that was committed for the benefit of a criminal street gang within the meaning of section 186.22(b)(1)"). 28. Penal Code ? 1170(h)(3). 29. Penal Code ? 186.22(b)(4)(C). 30. Penal Code ? 186.22(b)(4)(B). 31. People v. Arroyas, 96 Cal. App. 4th 1439 (2002) 32. Penal Code ? 186.22(d); Robert L. v. Superior Court, 30 Cal. 4th 894 (2003). 33. As it does for most other enhancements, a court has the power under Penal Code ? 1385 to strike a gang enhancement for all purposes. People v. Fuentes, 1 Cal. 5th 218, 221 (2016). But if the court wants to strike just "the additional punishment" required by the enhancement, it may do so only in the "unusual" case. Penal Code ? 186.22(g). 34. Penal Code ? 186.22(b)(1).

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