california legislature—2023–24 regular session
ASSEMBLY BILL No. 3037
Introduced by Assembly Member Essayli
February 16, 2024
An act to amend Sections 1385 and 12022.53 of the Penal Code, relating to sentencing. legislative counsel’s digest
AB 3037, as introduced, Essayli. Sentencing: dismissal of enhancements.
Existing law generally authorizes a court to dismiss an action in the furtherance of justice. Existing law requires a court to dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
This bill would make the provision relating to the dismissal of enhancements inapplicable to firearms-related enhancements, but would allow the court to dismiss these firearm-related enhancements pursuant to the court’s general authority to dismiss an action, as specified.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
1 SECTION 1. Section 1385 of the Penal Code is amended to 2 read:
3 1385. (a) The judge or magistrate may, either on motion of 4 the court or upon the application of the prosecuting attorney, and 5 in furtherance of justice, order an action to be dismissed. The 6 reasons for the dismissal shall be stated orally on the record. The 99 1 court shall also set forth the reasons in an order entered upon the 2 minutes if requested by either party or in any case in which the 3 proceedings are not being recorded electronically or reported by 4 a court reporter. A dismissal shall not be made for any cause that 5 would be ground of demurrer to the accusatory pleading. 6 (b) (1) If the court has the authority pursuant to subdivision (a) 7 to strike or dismiss an enhancement, the court may instead strike 8 the additional punishment for that enhancement in the furtherance 9 of justice in compliance with subdivision (a).
10 (2) This subdivision does not authorize the court to strike the 11 additional punishment for any enhancement that cannot be stricken 12 or dismissed pursuant to subdivision (a).
13 (c) (1) (A) Notwithstanding any other law, the court shall 14 dismiss an enhancement if it is in the furtherance of justice to do 15 so, except if dismissal of that enhancement is prohibited by any 16 initiative statute.
17 (B) Notwithstanding subparagraph (A), the court may, pursuant 18 to subdivision (a), dismiss an enhancement pursuant to Section 19 12022.53 if it is in the furtherance of justice.
20 (C) An enhancement imposed pursuant to Section 12022.53 is 21 not subject to subparagraph (A).
22 (2) In exercising its discretion under this subdivision, the court 23 shall consider and afford great weight to evidence offered by the 24 defendant to prove that any of the mitigating circumstances in 25 subparagraphs (A) to (I) are present. Proof of the presence of one 26 or more of these circumstances weighs greatly in favor of 27 dismissing the enhancement, unless the court finds that dismissal 28 of the enhancement would endanger public safety. “Endanger 29 public safety” means there is a likelihood that the dismissal of the 30 enhancement would result in physical injury or other serious danger 31 to others.
32 (A) Application of the enhancement would result in a 33 discriminatory racial impact as described in paragraph (4) of 34 subdivision (a) of Section 745.
35 (B) Multiple enhancements are alleged in a single case. In this 36 instance, all enhancements beyond a single enhancement shall be 37 dismissed.
38 (C) The application of an enhancement could result in a sentence 39 of over 20 years. In this instance, the enhancement shall be 40 dismissed.
99 1 (D) The current offense is connected to mental illness. 2 (E) The current offense is connected to prior victimization or 3 childhood trauma.
4 (F) The current offense is not a violent felony as defined in 5 subdivision (c) of Section 667.5.
6 (G) The defendant was a juvenile when they committed the 7 current offense or any prior offenses, including criminal 8 convictions and juvenile adjudications, that trigger the enhancement 9 or enhancements applied in the current case.
10 (H) The enhancement is based on a prior conviction that is over 11 five years old.
12 (I) Though a firearm was used in the current offense, it was 13 inoperable or unloaded.
14 (3) While the court may exercise its discretion at sentencing, 15 this subdivision does not prevent a court from exercising its 16 discretion before, during, or after trial or entry of plea. 17 (4) The circumstances listed in paragraph (2) are not exclusive 18 and the court maintains authority to dismiss or strike an 19 enhancement in accordance with subdivision (a).
20 (5) For the purposes of subparagraph (D) of paragraph (2), a 21 mental illness is a mental disorder as identified in the most recent 22 edition of the Diagnostic and Statistical Manual of Mental 23 Disorders, including, but not limited to, bipolar disorder, 24 schizophrenia, schizoaffective disorder, or post-traumatic stress 25 disorder but excluding antisocial personality disorder, borderline 26 personality disorder, and pedophilia. A court may conclude that a 27 defendant’s mental illness was connected to the offense if, after 28 reviewing any relevant and credible evidence, including, but not 29 limited to, police reports, preliminary hearing transcripts, witness 30 statements, statements by the defendant’s mental health treatment 31 provider, medical records, records or reports by qualified medical 32 experts, or evidence that the defendant displayed symptoms 33 consistent with the relevant mental disorder at or near the time of 34 the offense, the court concludes that the defendant’s mental illness 35 substantially contributed to the defendant’s involvement in the 36 commission of the offense.
37 (6) For the purposes of this subdivision, the following terms 38 have the following meanings:
39 (A) “Childhood trauma” means that as a minor the person 40 experienced physical, emotional, or sexual abuse, abuse or physical 99 1 or emotional neglect. A court may conclude that a defendant’s 2 childhood trauma was connected to the offense if, after reviewing 3 any relevant and credible evidence, including, but not limited to, 4 police reports, preliminary hearing transcripts, witness statements, 5 medical records, or records or reports by qualified medical experts, 6 the court concludes that the defendant’s childhood trauma 7 substantially contributed to the defendant’s involvement in the 8 commission of the offense.
9 (B) “Prior victimization” means the person was a victim of 10 intimate partner violence, sexual violence, or human trafficking, 11 or the person has experienced psychological or physical trauma, 12 including, but not limited to, abuse, neglect, exploitation, or sexual 13 violence. A court may conclude that a defendant’s prior 14 victimization was connected to the offense if, after reviewing any 15 relevant and credible evidence, including, but not limited to, police 16 reports, preliminary hearing transcripts, witness statements, medical 17 records, or records or reports by qualified medical experts, the 18 court concludes that the defendant’s prior victimization 19 substantially contributed to the defendant’s involvement in the 20 commission of the offense.
21 (7) This subdivision shall apply to all sentencings occurring 22 after January 1, 2022.
23 SEC. 2. Section 12022.53 of the Penal Code is amended to 24 read:
25 12022.53. (a) This section applies to the following felonies:
26 (1) Section 187 (murder).
27 (2) Section 203 or 205 (mayhem).
28 (3) Section 207, 209, or 209.5 (kidnapping).
29 (4) Section 211 (robbery).
30 (5) Section 215 (carjacking).
31 (6) Section 220 (assault with intent to commit a specified 32 felony).
33 (7) Subdivision (d) of Section 245 (assault with a firearm on a 34 peace officer or firefighter).
35 (8) Section 261 or former Section 262 (rape).
36 (9) Section 264.1 (rape or sexual penetration in concert). 37 (10) Section 286 (sodomy).
38 (11) Section 287 or former Section 288a (oral copulation). 39 (12) Section 288 or 288.5 (lewd act on a child).
40 (13) Section 289 (sexual penetration).
99 1
(14)
Section 4500 (assault by a life prisoner).
2 (15)
Section 4501 (assault by a prisoner).
3 (16)
Section 4503 (holding a hostage by a prisoner).
4 (17)
Any felony punishable by death or imprisonment in the
5 state prison for life.
6 (18) Any attempt to commit a crime listed in this subdivision 7 other than an assault.
8 (b) Notwithstanding any other law, a person who, in the 9 commission of a felony specified in subdivision (a), personally 10 uses a firearm, shall be punished by an additional and consecutive 11 term of imprisonment in the state prison for 10 years. The firearm 12 need not be operable or loaded for this enhancement to apply. 13 (c) Notwithstanding any other law, a person who, in the 14 commission of a felony specified in subdivision (a), personally 15 and intentionally discharges a firearm, shall be punished by an 16 additional and consecutive term of imprisonment in the state prison 17 for 20 years.
18 (d) Notwithstanding any other law, a person who, in the 19 commission of a felony specified in subdivision (a), Section 246, 20 or subdivision (c) or (d) of Section 26100, personally and 21 intentionally discharges a firearm and proximately causes great 22 bodily injury, as defined in Section 12022.7, or death, to a person 23 other than an accomplice, shall be punished by an additional and 24 consecutive term of imprisonment in the state prison for 25 years 25 to life.
26 (e) (1) The enhancements provided in this section shall apply 27 to any person who is a principal in the commission of an offense 28 if both of the following are pled and proved:
29 (A) The person violated subdivision (b) of Section 186.22. 30 (B) Any principal in the offense committed any act specified 31 in subdivision (b), (c), or (d).
32 (2) An enhancement for participation in a criminal street gang 33 pursuant to Chapter 11 (commencing with Section 186.20) of Title 34 7 of Part 1 shall not be imposed on a person in addition to an 35 enhancement imposed pursuant to this subdivision, unless the 36 person personally used or personally discharged a firearm in the 37 commission of the offense.
38 (f) Only one additional term of imprisonment under this section 39 shall be imposed per person for each crime. If more than one 40 enhancement per person is found true under this section, the court 99 1 shall impose upon that person the enhancement that provides the 2 longest term of imprisonment. An enhancement involving a firearm 3 specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, 4 or 12022.55 shall not be imposed on a person in addition to an 5 enhancement imposed pursuant to this section. An enhancement 6 for great bodily injury as defined in Section 12022.7, 12022.8, or 7 12022.9 shall not be imposed on a person in addition to an 8 enhancement imposed pursuant to subdivision (d).
9 (g) Notwithstanding any other law, probation shall not be 10 granted to, nor shall the execution or imposition of sentence be 11 suspended for, a person found to come within the provisions of 12 this section.
13 (h) The court may, in the interest of justice pursuant to 14 subdivision (a) and subparagraph (B) of paragraph (1) of 15 subdivision (c) of Section 1385 and at the time of sentencing, strike 16 or dismiss an enhancement otherwise required to be imposed by 17 this section. The authority provided by this subdivision applies to 18 any resentencing that may occur pursuant to any other law. 19 (i) The total amount of credits awarded pursuant to Article 2.5 20 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 21 3 or pursuant to Section 4019 or any other law shall not exceed 22 15 percent of the total term of imprisonment imposed on a 23 defendant upon whom a sentence is imposed pursuant to this 24 section.
25 (j) For the penalties in this section to apply, the existence of any 26 fact required under subdivision (b), (c), or (d) shall be alleged in 27 the accusatory pleading and either admitted by the defendant in 28 open court or found to be true by the trier of fact. When an 29 enhancement specified in this section has been admitted or found 30 to be true, the court shall impose punishment for that enhancement 31 pursuant to this section rather than imposing punishment authorized 32 under any other law, unless another enhancement provides for a 33 greater penalty or a longer term of imprisonment.
34 (k) When a person is found to have used or discharged a firearm 35 in the commission of an offense that includes an allegation pursuant 36 to this section and the firearm is owned by that person, a 37 coparticipant, or a coconspirator, the court shall order that the 38 firearm be deemed a nuisance and disposed of in the manner 39 provided in Sections 18000 and 18005.
99 1 (l) The enhancements specified in this section shall not apply 2 to the lawful use or discharge of a firearm by a public officer, as 3 provided in Section 196, or by any person in lawful self-defense, 4 lawful defense of another, or lawful defense of property, as 5 provided in Sections 197, 198, and 198.5.
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