June 12, 2019 By Wallin & Klarich

Under California law a defendant who has been convicted of a serious or violent felony and has previously been convicted of a serious or violent felony receives a 5 year enhancement of their prison sentence. This enhancement works in combination with California’s “three strikes law” which doubles the sentencing term for a person who has a prior serious or violent felony.

For example:
Mark is charged and convicted of residential burglary in 2004. He is then charged in 2018 with assault with a deadly weapon. Typically the charge of assault with a deadly weapon is punishable by 2,3 or 4 years in prison. However, Mark’s previous conviction for burglary is a prior strike which doubles the sentencing term on the new charge from 2-4 years to 4-8 years.

In addition because Mark has a prior strike and assault with a deadly weapon is a new serious or violent felony he faces an additional five year enhancement known as a “nickel prior” (PC 667). His sentencing range for the new charge would now be 9, 11 or 13 years.

Women Criminal System

Prior to the passage of SB 1393, the district attorney’s office had the sole discretion of dismissing this serious enhancement. Defendants faced an additional 5 years after trial with no ability for the judge to dismiss this enhancement. SB 1393, which was signed into law September of 2018, now allows a judge to have discretion to dismiss the five year enhancement for serious or violent prior felonies.

The law applies to all defendants who are currently facing charges. However, it also applies retroactively to some cases where judgment has not been finalized. Generally this means defendants whose cases have not gone to trial, are still pending, or on appeal at the time of SB 1393’s passage can raise this new law to help them in their case.

In the case of People v. Stamps, the California First District Court of Appeal considered the issue of whether a defendant sentenced with a 5 year enhancement could be re-sentenced under SB 1393. The defendant Mr. Stamps, who had a prior serious or violent felony pled no contest to residential burglary, and was sentenced with a five year enhancement added. He filed an appeal of his sentence requesting a new hearing to ask the court to dismiss the 5 year enhancement. The appellate court said that given the language of SB 1393, the defendant could ask to be re-sentenced by the judge and ask to have the 5 year enhancement dismissed.

At Wallin & Klarich, we strive to remain at the forefront of criminal defense strategies to ensure our clients have the best chance of preserving their freedom. In a recent case, Wallin and Klarich, handled one of our clients who was convicted of a serious felony. The court had imposed an additional 5 years to the punishment because our client had a prior strike conviction. However, on appeal the court of appeals ruled that the trial court could consider striking the 5 year enhancement. We are now waiting a new sentencing date where our law firm will argue strongly that our client should not have a 5 year sentence added to his sentence.

Share your thoughts

Wallin and Klarich would like to hear from you. Do you think a judge should have discretion to strike the prior conviction or should the extra 5 years in prison be mandatory in all cases? Let us know in the comments below.

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