New Discretion to Strike Prior Serious Felony Convictions

Effective January 1, 2019, SB 1393 has amended Penal Code section 1385 such that a sentencing judge now has discretion to strike the punishment for a five year prior found true pursuant to Penal Code section 667, subdivision (a). Even though the law is not yet in effect, it has already been held that the provision is to be retroactively applied on appeal. (People v. Garcia (Nov. 1, 2018, E068490) 2018 Cal.App. Lexis 993.)

Thus, if you have already filed the opening brief, the issue should be raised by way of a supplemental opening brief. Given the number of such briefs that will be filed, the Sixth District has made the following request. When you submit your supplemental opening brief and the motion for leave to file the brief, please put the following language on the cover of both the brief and motion: "Filed pursuant to Senate Bill 1393 (SB 1393), signed into law on September 30, 2018."

Although the case discussed only SB 620, the Sixth District's brand new opinion in People v. Baldivia (Nov. 5, 2018, H044842) 2018 Cal.App. Lexis 1007 directly bears on both SB 620 and SB 1393. In Baldivia, the defendant entered a top and bottom plea bargain for a sentence of 17 years, 4 months. Without objection by the Attorney General, the court held that the SB 620 issue was cognizable on appeal notwithstanding the absence of a certificate of probable cause. The court reversed the judgment with directions for the trial court to exercise its discretion as to whether the punishment for the gun use enhancement should be stricken. In so holding, the court relied on People v. Hurlic (2018) 25 Cal.App.5th 50 where the same result was reached.

Baldivia and Hurlic are significant since they allow an appellant to challenge a sentence achieved by both guilty plea and plea bargain. In addition, the remedies provided in the two cases precluded any possible increase in the sentences on remand. Rather, the trial courts were to either impose the same sentence or a lesser one.

As always, please consult with your SDAP buddy if you should have any questions regarding the new statutes.

(November 8, 2018)


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