BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair S
1999-2000 Regular Session B
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SB 2135 (Knight) 5
As Amended April 5, 2000
Hearing date: April 11, 2000
Penal Code
JM:mc
VICARIOUS FIREARM ENHANCEMENTS:
PENALTY INCREASES: LIMITS ON JUDICIAL DISCRETION
HISTORY
Source: Author
Prior Legislation: AB 4 (Bordonaro) - Chapter 503, Statutes
of 1997
Support: National Rifle Association; Crime Victims United
of California
Opposition:American Civil Liberties Union; California
Attorneys for Criminal Justice
KEY ISSUES
SHOULD THE LAW REQUIRE PROSECUTORS TO "PLEAD AND PROVE"
FILE ANY ALLEGATION THAT THE DEFENDANT PERSONALLY USED A
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FIREARM?
WHERE CRIMINAL CHARGES INCLUDE AN ALLEGATION OF FIREARM
USE, SHOULD PLEA BARGAINING BE STRICTLY PROHIBITED?
(CONTINUED)
SHOULD JUDICIAL DISCRETION TO DISMISS AN ALLEGATION OF FIREARM USE
BE ELIMINATED IN ALL CASES?
SHOULD ANY POSSIBILITY OF PROBATION BE ELIMINATED FOR ANY DEFENDANT
FOUND TO HAVE USED A FIREARM IN THE COMMISSION OF A FELONY, EVEN
"VICARIOUS USE" ESTABLISHED BY THE USE OF A FIREARM BY ANOTHER
PERPETRATOR OF THE SAME CRIME?
SHOULD ANY DEFENDANT WHO "PERSONALLY CAUSES" ANOTHER PERSON TO USE A
FIREARM RECEIVE AN ENHANCEMENT FOR PERSONAL USE OF A FIREARM?
EXISTING STATUTES (PEN. CODE 667.5 AND 2933.1) PROVIDE THAT ANY
PERSON WHO USED A FIREARM IN THE COMMISSION OF A FELONY (PEN. CODE
12022.5, 12022.53, OR 12022.55) MAY EARN NO MORE THAN 15%
WORK-TIME PRISON CUSTODY CREDITS. SHOULD THE LAW INCLUDE A POSSIBLY
REDUNDANT CREDIT LIMIT IN SECTION 12022.5 (WHICH IMPOSES AN
ENHANCEMENT OF 3, 4, OR 10 YEARS FOR USE OF A FIREARM)?
PURPOSE
The purpose of this bill is (1) to require prosecutors to
file all possible firearm use enhancement allegations; (2)
to forbid any plea bargaining where it is alleged pursuant
to Penal Code section 12022.5 that the defendant personally
used a firearm; (3) to make related changes to eliminate
the power of a court, granted by Penal Code section 1385,
to dismiss an allegation pursuant to Penal Code section
12022.5 that the defendant personally used a firearm; (4)
to forbid probation in any case in which a firearm use
allegation is filed; (5) to extend the enhancement for
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personally using a firearm to any defendant who causes
another person to use a firearm; and (6) to state in Penal
Code section 12022.5, as well as the limit set out in Penal
Code section 2933.1 for crimes involving firearm use, that
sentencing credits are limited to 15% for convictions that
include a firearm use enhancement.
Existing law provides that a person who personally uses a
firearm in the commission or attempted commission of any
felony not listed in the 10-20-Life law is subject to an
enhancement of 3, 4, or 10 years. (Pen. Code
12022.5(a)(1).) If the felony is a carjacking or attempted
carjacking, the additional term is 4, 5, or 10 years.
(Pen. Code
12022.5(a)(2).) If the person uses an assault weapon,
the additional term is 5, 6, or 10 years. (Pen. Code
12022.5, subd. (b)(2).) Existing law sets forth additional
enhancements under other specified circumstances.
Existing law , the "10-20-Life" law, provides that any
person who personally uses a firearm during the commission
of specified felonies shall be punished by imprisonment in
the state prison for 10 years, in addition to the
punishment prescribed for the felony. If the firearm is
intentionally discharged, the defendant receives an
additional punishment of 20 years in prison. If the
firearm is discharged and great bodily injury occurs, the
person would be punished by imprisonment in the state
prison for a term of life, with the possibility of parole
after 25 years. (Pen. Code 12022.53.)
Existing law states that one is "armed" where another
defendant in the same crime uses or is armed with a firearm,
with or without the knowledge of the person. (People v.
Vasquez (1987) 197 Cal.App.3d 331; Pen. Code 12022, subd.
(a).)
Existing law defines being "armed" with a firearm as having
the firearm ready for use. "Use" of a firearm involves any
act such as pointing a firearm at a victim, displaying it
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in a menacing manner, striking a victim with the gun
(pistol whipping), etc. (People v. Hays (1983) 147
Cal.App.3d 534; People v. Steele (1991) 235 Cal.App.3d
286.)
Existing law provides that "all persons concerned in the
commission of a crime . . . whether they directly commit
the act . . . or aid and abet its commission, or not being
present, have advised and encouraged its commission, are .
. . are principals."
(Pen. Code 31.)
Existing law provides that enhancement for personal use of
a firearm may be imposed, regardless of the element of the
offense limitation, where the defendant assaulted another
person with a firearm, or where the defendant murdered
another in a drive-by shooting. (Pen. Code 12022.5,
subd. (d).)
Existing law provides that any person convicted of a
violent felony may reduce his prison sentence by no more
than 15% for participation in work or related programs.
(Pen. Code 667.5, subd. (c), 2933.1.)
Existing law provides that any felony in which the
defendant personally used a firearm, as charged pursuant to
Penal Code section 12022.5, 12022.53, or 12022.55 is a
violent felony. (Pen. Code 667.5, subd. (c)(8).)
Existing law provides that "[w]hen probation is granted
[for a person using a weapon] the court shall specify on
the record and shall enter on the minutes the circumstances
indicating that the interests of justice would be best
served by that disposition." (Pen. Code 1203, subds.
(e)-(f).)
This bill would eliminate the power of a court, granted by
Penal Code section 1385, to dismiss an allegation pursuant
to Penal Code section 1192.5 that the defendant personally
used a firearm.
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This bill :
forbids any plea bargaining where it is alleged pursuant
to Penal Code section 1192.5 that the defendant
personally used a firearm;
forbids a grant of probation in any case in which an
allegation of firearm use pursuant to Penal Code section
12022.5 is established;
extends the enhancement for personally using a firearm to
any defendant who "intentionally" causes another person
to use a firearm;
makes related changes.
COMMENTS
1. Need for this Bill
Background provided by the author includes:
SB 2135 will make the imposition of firearm
sentence enhancements consistent and equal by
applying the following provisions to all felonies
committed with a firearm:
(a) Prohibit the court from striking
an allegation, charge, or finding that
triggers the enhancement provisions.
(b) Denies the granting or probation
for, or the suspension of the execution or
imposition of sentence, any sentence
enhancement.
(c) Requires that criminals serve at
least 85% of the sentence enhancement
time.
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These provisions are already applied to specified
felonies outlined in the 10-20-Life firearm
sentence enhancement law.
Our firearm sentence laws should be clear and
decisive in application. Under SB 2135, there
will be no guessing; a criminal who commits a
felony with a firearm will receive the sentence
enhancement and will do the time. Additionally,
SB 2135 makes sure that these sentence
enhancements are not ignored and are also applied
to those who intentionally cause someone else to
commit a felony with a firearm.
SB 2135 also adds the following provisions:
(a) Prohibits plea bargaining away any firearm
enhancements under this code section.
(b) Makes these firearm sentence
enhancements apply to a principal in a crime if
they "intentionally" cause another person to use
a firearm in a crime whether or not they
themselves use a firearm (aiding and abetting).
2. Issues Raised by the Provision in the Bill Allowing
Enhancement Where One Defendant Intentionally Causes
Another to Use a Firearm
a. Vagueness Issue as to What Constitutes Cause
To survive a challenge that a criminal statute is so
vague as to deny due process, the statute must inform a
person of ordinary intelligence what it prohibits or
requires. (Connally v. General Construction Company
(1926) 269 U.S. 385.) This bill would punish a person
for intentionally causing another to use a firearm.
Because the term "cause" in this bill may be uncertain,
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the bill may be challenged as violating due process.
The term "cause" does not have a single meaning in the
law. "Proximate cause" or "legal cause" is generally
defined as the dominant cause of event and that which
subjects a person to civil liability. Cause in fact is
"that particular cause without which the event would not
have occurred." (Black's Law Dictionary) Cause in fact
may sometimes be described as "but for" cause, as the
result in question would not have occurred but for the
happening of the examined act. This bill provides no
guide to how it would be proved that a person
intentionally caused another to use a firearm. Does this
mean proximate cause? Does cause mean a necessary
contributing factor? Does cause require negligence - the
absence of reasonable care?
b. Proof That One Defendant Caused Another to Use a
Firearm
This bill provides that one person - Defendant "A" - may
receive a firearm use enhancement where "A" personally
caused Defendant "B" to use a firearm. This may present
very difficult proof questions for trial. How does an
attorney prove to a jury that one person caused another
person to do something? Would this be done by statements
of the perpetrators? Defendants have a Fifth Amendment
right to remain silent. Even where one defendant waives
his or her right to remain silent, a confession by one
defendant cannot be used against another defendant.
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3. Elimination of Judicial Discretion
a. Judicial Discretion in General
The law has traditionally granted the trial court wide
discretion to admit or refuse the admission of evidence,
to impose proper sentences and to ensure that justice is
done. The Legislature may limit a court's discretion if
the limitation is expressed clearly and where it does not
violate the constitutional separation of powers.
Generally, a court's discretion may be overturned only
upon a showing of abuse. However, discretion must be
exercised within the bounds of the law upon which the
court issues its ruling. (Bailey v. Taffe (1896) 29 Cal.
422, 424.)
b. Judicial Discretion to Dismiss a Penal Action or Any
Part Thereof
Penal Code section 1385 provides that a court "may,
either on his or her own motion or upon the motion of the
prosecuting attorney, and in the furtherance of justice,
order an action to be dismissed. The reasons for the
dismissal must be set forth in an order entered in the
minutes." As the court has the power to dismiss an
entire action in the interests of justice, it has long
been held that a court can dismiss any part of an action
in the interests of justice. (People v. Thomas (1992) 4
Cal.4th 206.)
c. Trend to Eliminate or Limit Judicial Discretion and to
Transfer Power to District Attorneys
This bill is another example of a movement of power in
criminal cases from judges to prosecutors. The recently
enacted Proposition 21 eliminated much of the discretion
of juvenile court judges to rule whether or not minors
should be tried as adults in specified cases. The Three
Strikes law eliminated much of the trial court's
traditional discretion, with the exception that a court
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may still dismiss a prior strike. The authors of the
Three Strikes measure apparently intended to eliminate
judges' power to dismiss prior strikes, and virtually all
appellate courts ruled that the measure had eliminated
judicial discretion. However, the California Supreme
Court ruled that the law had not been drafted clearly
enough to eliminate discretion to dismiss a strike. The
court also held that a law that conditions the exercise of
judicial discretion on the approval of the prosecutor
would likely violate the Separation of Powers Clause of
the California Constitution. (People v. Superior Court
(Romero) 1997 13 Cal.4th 497.)
Immediately after the decision in Romero, bills were
introduced to overturn the ruling, including AB 1370
(Prenter) in 1997 and SB 331 (Hurtt) 1996. The
California District Attorneys Association (CDAA)
supported SB 331.
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The sponsors of SB 331 argued:
This measure is a critically important piece
of legislation that seeks to correct the
problems raised regarding the "Three Strikes
and You're Out" law by the recent California
Supreme Court decision of People v. Superior
Court (Romero) [13 Cal. 4th 497 (1996)].
Enactment of SB 331 will ensure both the
electorate and the Legislature's intent in
originally enacting the "Three Strikes" law
to ensure tough sentences for repeat felons.
The Assembly Public Safety Committee held hearings in Los
Angeles in October 1997 on AB 1370 and the broader issue
of whether judges have responsibly exercised discretion
in Three-Strikes cases. CDAA representatives argued in
favor AB 1370's limits on discretion. It appeared from
the testimony at the hearing that judges had not abused
their discretion in Three-Strikes cases. Witnesses noted
that a prosecutor could appeal to a higher court where he
or she believes the trial court improperly exercised its
discretion.
CDAA now appears to concede that judicial discretion in
strikes cases has been appropriately exercised to
eliminate truly unfair and draconian sentences. CDAA has
recently written: "We believe [the Romero and Alvarez
decisions] have provided sufficient safety valves for the
Three Strikes law." (Letter of opposition to SB 79
(Hayden).)
d. Elimination of Discretion in This Bill
This bill eliminates the discretion of judges to dismiss
the charge or finding that a defendant used a firearm in
the commission of an offense. In practical terms, this
means that only the prosecutor may decide if a defendant
shall be punished by a firearm use enhancement (assuming
the jury finds the allegation to be true). Courts could
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not consider facts in mitigation so as to dismiss a
firearm enhancement.
IS THERE SUBSTANTIAL EVIDENCE INDICATING THAT JUDGES DO NOT
RESPONSIBLY EXERCISE DISCRETION IN CASES IN WHICH A FIREARM
USE ENHANCEMENT IS CHARGED?
SHOULD JUDICIAL DISCRETION TO DISMISS A PENAL CODE SECTION
12022.5 FIREARM USE ALLEGATION BE ENTIRELY ELIMINATED?
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4. Existing Law Forbids Probation for a Defendant Who Used a
Weapon Except in Unusual Circumstances Where Justice
Would be Served
Under existing law, probation is forbidden for any person
who used a firearm "except in unusual circumstances where
the interests of justice would be best served if the person
is granted probation." The law further provides: "When
probation is granted [for a person using a weapon] the
court shall specify on the record and shall enter on the
minutes the circumstances indicating that the interests of
justice would be best served by that disposition." (Pen.
Code 1203, subds. (e)-(f).)
This bill will eliminate the granting of discretion even in
cases where unusual circumstances indicate that the
interests of justice would be served by a grant of
probation.
5. Issues Related to Requirement in the Bill That the
Prosecution Charge Firearm Enhancement
a. Prosecutorial Discretion: Proper Exercise of
Discretion and Separation of Powers
Prosecutors have particularly wide discretion to
determine what charges should be filed against any
defendant. (Wayte v. United States (1985) 470 U.S. 598,
608-610; Murgia v. Municipal Court (1975) 15 Cal. 3d
286.) Arguably, legislative directives that the
prosecution must file specific charges violate the
Separation of Powers Clause (Art 3, 3) of the
California Constitution. The California Supreme Court
has not determined whether a similar provision in the
Three-Strikes law violates the constitutional separation
of powers. (People v. Superior Court (Romero) (1996) 13
Cal.4th 497, fn.7.)
The author of this bill does not state that prosecutors
are not reasonably exercising discretion to file, or not,
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enhancements pursuant to Penal Code section 12022.5.
IN VIEW OF THE WIDE DISCRETION INVESTED IN PROSECUTORS TO
FILE WHATEVER CHARGES THE PROSECUTION BELIEVES ARE
APPROPRIATE, DOES THE LEGISLATURE HAVE THE POWER TO REQUIRE
PROSECUTORS TO FILE "ANY" POSSIBLE PENAL CODE SECTION
12022.5 ENHANCEMENT?
b. Issues Related to Application of Pleading and Proof
Requirement
This bill would require the prosecution to file "any
allegation that the defendant personally used a firearm .
. ." This provision leaves no guide as to how a
prosecutor would know when the facts of the case indicate
that "any allegation" of firearm use must be filed. The
issue is essentially this: How can the Legislature
anticipate whether the facts of an incident indicate that
a firearm use enhancement should be filed?
The enhancement pleading requirement in this bill was
taken from a provision in the Three Strikes law that
requires prosecutors to seek a Three-Strikes sentence "in
every case in which a defendant has a prior [strike]
felony conviction . . ." (Pen. Code 667, subd.
(f)(1).) This language implicitly requires the
prosecutor to determine whether or not the defendant has
been previously convicted of a strike offense.
Determining whether a prior conviction qualifies as a
strike is a relatively simple and straightforward
process. The prosecutor merely reviews the record of the
prior conviction to determine if the conviction
constitutes a serious or violent felony.
In contrast with the evaluation of prior convictions,
determining what charges can be proved from police
reports, investigations and preliminary hearings present
much more complex problems. Witnesses must establish the
facts that constitute the elements of a firearm use
allegation. It may be argued that such determinations
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cannot reasonably be made by statutory directives.
c. Difficulty of Enforcement of Pleading Requirement,
Disparate Application Among California Counties
It has been widely reported that filing practices of
district attorneys in Three-Strikes cases vary widely
from county to county. (Crime & Punishment in
California, The Impact of Three Strikes and You're Out,
Zimring, et al., Inst. of Govt. Studies, UC Berkeley,
1999.) San Francisco, despite the mandatory language in
the law, seldom files prior strikes, especially where the
current offense is neither serious nor violent. Other
counties, such as Los Angeles and San Diego, generally
file available prior strikes. It could be argued that
the mandatory filing language in the Three-Strikes law is
of little or no affect. Some may argue that the
Legislature should not enact provisions that will be
widely ignored and difficult to enforce.
IN VIEW OF THE PROBLEMS INHERENT IN DETERMINING THROUGH
INVESTIGATION AND TESTIMONY WHETHER A FIREARM USE
ENHANCEMENT CAN BE PROVED AT TRIAL, CAN A LEGISLATIVE
DIRECTIVE THAT PROSECUTORS MUST FILE ANY PENAL CODE SECTION
12022.5 FIREARM USE ENHANCEMENT HAVE ANY PRACTICAL
APPLICATION?
WOULD A LEGISLATIVE DIRECTIVE TO PROSECUTORS TO FILE ALL
SECTION 12022.5 ENHANCEMENTS BE IGNORED, DIFFICULT TO
ENFORCE AND LEAD TO WIDELY DISPARATE FILING PRACTICES FROM
COUNTY TO COUNTY, MUCH AS IN THE THREE STRIKES LAW?
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6. Even Without This Bill, Plea Bargaining is Limited by
Penal Code Section 1192.7 for Crimes in Which the
Defendant Used a Deadly or Dangerous Weapon
This bill states that plea bargaining is prohibited for any
defendant convicted of an enhancement for use of firearm.
Existing law already limits plea bargaining for any
defendant convicted of a felony is which a defendant used a
deadly or dangerous weapon. The only possible expansion of
the plea bargaining limits in this bill is to expand the
deadly weapon limits to defendants who intentionally cause
another person to use a firearm. In any event, plea
bargains may be authorized and accepted by the court where
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the prosecution may have difficulty proving the charged
offense. This is likely the most common reason for any
plea bargain. Even without a strict limit on plea
bargaining, a court need not approve any plea bargain in
its discretion. (Pen. Code 1192.5.)
Plea bargaining has been widely and routinely criticized in
the popular press. However, the United States and
California Supreme Courts have noted that plea negotiations
are an important and necessary component of the criminal
justice system. (People v. Panizzon (1996) 13 Cal.4th 68.)
Plea bargains, which are essentially contracts between the
defendant and the prosecution that are approved by the
court, allow certainty in the process. Prosecutors need
not see a defendant go free because the prosecution has a
weak link in its case, such as an inarticulate or reluctant
witness. Defendants need not gamble that prejudicial
evidence may result in conviction on a greater offense than
he or she actually committed. Guilty pleas free courtrooms
for full hearing of truly disputed matters.
7. Sentencing Credit Limit of 15% for Crimes in Which a
Firearm is Used is Already Provided by Penal Code
Sections 667.5, Subdivision (c) and 2933.1
This bill would specifically limit prison custody credits
for participation in work and training programs to no more
than 15% of the defendant's term. Such a sentencing limit
is imposed under current law. Penal Code section 2933.1
imposes a 15% credit limit in any case in which a defendant
is convicted of a violent felony, as defined in Penal Code
section 667.5, subdivision (c). Any felony in which a
defendant used a firearm is a violent felony. As with the
probation limits, this bill arguably only expands the 15%
credit limit cases to crimes, not otherwise defined as
violent, in which the defendant intentionally caused
another person to use a firearm.
DOES THE 15% SENTENCING CREDIT LIMIT IN THIS BILL MERELY
ADD AN ESSENTIALLY REDUNDANT PROVISION TO THE PENAL CODE?
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8. Issue of Certainty and Confusion in Sentencing
The author states that this bill would render the law of
firearm enhancements to be clear and decisive. However, it
could be argued that eliminating judicial discretion as to
firearm enhancements may lead to more confusion and
complexity in sentencing. A court must make myriad
decisions in imposing sentence. The court essentially
constructs a sentence from building blocks of principal
terms, subordinate terms, enhancements on the principal and
subordinate terms, enhancements imposed for prior
convictions, etc. Where a court determines that a
defendant should be punished by a certain range of years,
and the law limits the court's discretion as to firearm
enhancements, the court may simply build the rest of the
sentence in an unusual way, causing more uncertainty and
confusion.
WOULD THIS BILL TRULY ELIMINATE CONFUSION IN SENTENCING
PRACTICES, OR WOULD THE BILL LARGELY BE REDUNDANT OF
CURRENT LAW?
9. Related Legislation
SB 1539 (Lewis), set for hearing on April 25, 2000 in the
Committee, concerns "vicarious" firearm enhancements -
enhancements imposed on one defendant because another
defendant in the same crime used a gun. In particular, the
bill imposes "vicarious" firearm enhancements of 2, 5 and
10 years respectively in crimes listed in the 10-20-Life
law upon defendants where another defendant personally
used, discharged, or discharged a firearm so as to cause
great bodily injury. The bill requires that the
prosecution prove that the defendant knew, or should have
known, that another principal in the crime was armed before
the vicarious enhancement can be imposed. Current law
imposes a 1-year vicarious enhancement on a defendant who
did not use a gun where another defendant did use a gun.
The current vicarious enhancement is 3 years for an assault
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firearm.
SB 1539 is set for hearing today in the Committee.
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