Sentence Enhancements Statute

Government document

By: California Legislature

Date: 1998

Source: California Penal Code § 666.7. (12) (1998).

About the Author: The California Legislature is the body elected to enact laws for the state of California.

INTRODUCTION

After a trial is completed and a guilty verdict returned, or when a defendant enters a guilty or no contest plea, the sentencing phase of the adjudication process begins. Federal and state guidelines for the type and term of sentence imposed are based on the nature of the crime and its surrounding circumstances. There are five possible outcomes: Depending on the nature and severity of the felony offense, the offender can be: 1) ordered to make restitution to the victim, pay a fine, or both; 2) given a suspended sentence with no mandatory reporting requirements; 3) made to serve a period of probation, under specific conditions for a particular period of time; 4) remanded to community service, to a specific form and type of treatment program, or otherwise given a specific time and task combination that must be performed according to precise conditions; or 5) sentenced to a period of incarceration.

Procedures for the trial phase and the sentencing portion are notably different. Before conviction or the entering of a plea, the defendant is entitled to all of the rights and privileges of due process. Defendant and attorney are entitled to see all the evidence to be put forth, to examine and rebut witnesses, and to offer argument, proof, and witnesses of their own. In the trial or plea portion of the proceedings, it is only the behavior or specific actions of the defendant that are under consideration for the decision of guilt or innocence.

The sentencing phase is somewhat more arbitrary, in that the judge considers not only the behavior of the now-convicted felon in arriving at a decision, but also how the crime occurred—whether substance abuse was involved, whether the trafficking of illegal substances occurred, or whether drugs or alcohol played a part in the commission of the crime; the amount of drugs or money involved; whether weapons were used at all, as a threat, or actually discharged; whether and to what extent bodily harm was caused—as well as various aspects of the offender's personality and past actions (within the framework of the standards of acceptable legal practice).

Some aspects considered for sentencing are: whether the defendant has a prior criminal history, and, if so, what the prior convictions concerned (violent or nonviolent crimes, number of prior offenses or criminal convictions, age at prior offenses), whether and how many prior incarcerations there were, current age, education and employment history, and family and social history.

In brief, the trial and conviction phases are concerned with the establishment of criminal behavior, and the attribution (based on a preponderance of evidence and beyond a reasonable doubt or on an admission of guilt) of the criminal offense to the specific defendant, and the decision that the establishment of guilt to the alleged offender constitutes a crime that necessitates some sort of punishment. The sentencing phase assesses the relationship between convicted offender and criminal behavior to ascertain the appropriate type and duration of punishment.

PRIMARY SOURCE

666.7. It is the intent of the Legislature that this section serve merely as a nonsubstantive comparative reference of current sentence enhancement provisions. Nothing in this section shall have any substantive effect on the application of any sentence enhancement contained in any provision of law, including, but not limited to, all of the following: omission of any sentence enhancement provision, inclusion of any obsolete sentence enhancement provision, or inaccurate reference or summary of a sentence enhancement provision.

It is the intent of the Legislature to amend this section as necessary to accurately reflect current sentence enhancement provisions, including the addition of new provisions and the deletion of obsolete provisions.

For the purposes of this section, the term "sentence enhancement" means an additional term of imprisonment in the state prison added to the base term for the underlying offense. A sentence enhancement is imposed because of the nature of the offense at the time the offense was committed or because the defendant suffered a qualifying prior conviction before committing the current offense….

(b) The provisions listed in this subdivision imposing a sentence enhancement of one, two, or three years' imprisonment in the state prison may be referenced as Schedule B.

(1) Commission or attempted commission of a felony hate crime (subd. (a), Sec. 422.75, Pen. C.).

(2) Commission or attempted commission of a felony against the property of a public or private institution because the property is associated with a person or group of identifiable race, color, religion, nationality, country of origin, ancestry, gender, disability, or sexual orientation (subd. (b), Sec. 422.75, Pen. C.).

(3) Felony conviction of unlawfully causing a fire of any structure, forest land, or property when the defendant has been previously convicted of arson or unlawfully causing a fire, or when a firefighter, peace officer, or emergency personnel suffered great bodily injury, or when the defendant proximately caused great bodily injury to more than one victim, or caused multiple structures to burn (subd. (a), Sec. 452.1, Pen. C.).

(4) Carrying a loaded or unloaded firearm during the commission or attempted commission of any felony street gang crime (subd. (a), Sec. 12021.5, Pen. C.).

(5) Personally using a deadly or dangerous weapon in the commission of carjacking or attempted carjacking (para. (2), subd. (b), Sec. 12022, Pen. C.).

(6) Being a principal in the commission or attempted commission of any specified drug offense, knowing that another principal is personally armed with a firearm (subd. (d), Sec. 12022, Pen. C.).

(7) Furnishing or offering to furnish a firearm to another for the purpose of aiding, abetting, or enabling that person or any other person to commit a felony (Sec. 12022.4, Pen. C.).

(8) Selling, supplying, delivering, or giving possession or control of a firearm to any person within a prohibited class or to a minor when the firearm is used in the subsequent commission of a felony (para. (4), subd. (g), Sec. 12072, Pen. C.).

(9) Inducing, employing, or using a minor who is at least four years younger than the defendant to commit a drug offense involving any specified controlled substance, including, but not limited to, heroin, cocaine, and cocaine base, or unlawfully providing one of these controlled substances to a minor (para. (3), subd. (a), Sec. 11353.1, H.& S.C.).

(10) Prior conviction of inducing, employing, or using a minor to commit a drug offense involving cocaine base, or unlawfully providing cocaine base to a minor that resulted in a prison sentence with a current conviction of the same offense (subd. (a), Sec. 11353.4, H.& S.C.).

(11) Prior conviction of inducing, employing, or using a minor to commit a drug offense involving cocaine base, or unlawfully providing cocaine base to a minor with a current conviction of the same offense involving a minor who is 14 years of age or younger (subd. (b), Sec. 11353.4, H.& S.C.).

(12) Inducing, employing, or using a minor who is at least four years younger than the defendant to commit a drug offense involving any specified controlled substance, including, but not limited to, phencyclidine (PCP), methamphetamine, and lysergic acid diethylamide (LSD), or unlawfully providing one of these controlled substances to a minor (para. (3), subd. (a), Sec. 11380.1, H.& S.C.).

(13) Causing great bodily injury or a substantial probability that death could result by the knowing disposal, transport, treatment, storage, burning, or incineration of any hazardous waste at a facility without permits or at an unauthorized point (subd. (e), Sec. 25189.5, and subd. (c), Sec. 25189.7, H.& S.C.).

(c) The provisions listed in this subdivision imposing a sentence enhancement of one, two, or five years' imprisonment in the state prison may be referenced as Schedule C.

(1) Wearing a bullet-resistant body vest in the commission or attempted commission of a violent offense (subd. (b), Sec. 12022.2, Pen. C.).

(2) Commission or attempted commission of any specified sex offense while armed with a firearm or deadly weapon (subd. (b), Sec. 12022.3, Pen. C.).

…(s) The provisions listed in this subdivision imposing a sentence enhancement of 15 years' imprisonment in the state prison may be referenced as Schedule S.

(1) Kidnapping a victim under 14 years of age for the purpose of committing any specified felony sex offense (subd. (b), Sec. 667.8, Pen. C.).

(2) Commission of any specified drug offense involving a substance containing heroin, cocaine base, cocaine, methamphetamine, amphetamine, or phencyclidine (PCP), when the substance exceeds 20 kilograms or 400 liters (para. (4), subd. (a), and para. (4), subd. (b), Sec. 11370.4, H.& S.C.).

(3) Manufacturing, compounding, converting, producing, deriving, processing, or preparing any substance containing amphetamine, methamphetamine, or phencyclidine (PCP) or its analogs or precursors, or attempting to commit any of those acts, when the substance exceeds 105 gallons or 44 pounds (para. (4), subd. (a), Sec. 11379.8, H.& S.C.).

(t) The provisions listed in this subdivision imposing a sentence enhancement of 20 years' imprisonment in the state prison may be referenced as Schedule T.

(1) Intentionally and personally discharging a firearm in the commission or attempted commission of any specified felony offense (subd. (c), Sec. 12022.53, Pen. C.).

(2) Commission of any specified drug offense involving a substance containing heroin, cocaine base, or cocaine, when the substance exceeds 40 kilograms (para. (5), subd. (a), Sec. 11370.4, H.& S.C.).

(u) The provisions listed in this subdivision imposing a sentence enhancement of 25 years' imprisonment in the state prison may be referenced as Schedule U.

(1) Commission of any specified drug offense involving a substance containing heroin, cocaine base, or cocaine, when the substance exceeds 80 kilograms (para. (6), subd. (a), Sec. 11370.4, H.& S.C.).

(v) The provisions listed in this subdivision imposing a sentence enhancement of 25 years to life imprisonment in the state prison may be referenced as Schedule V.

(1) Intentionally and personally discharging a firearm in the commission or attempted commission of any specified felony offense and proximately causing great bodily injury.

SIGNIFICANCE

The underlying premise of state and federal sentencing enhancements is that they augment a sentence that would, of necessity, have been imposed—that is, they do not cause a person to be sentenced to a correctional institution, they merely add time to what would have been imposed in any case. Sentence enhancements are intended to deter future criminal activity, since felons are less affected by the fact of incarceration than they are by the duration of the sentence and the type of facility in which they serve it: Being sentenced to a super-maximum security facility, in which a convicted felon spends twenty-three hours per day in a cell, and exits only to shower and recreate in a "cage" is far more arduous than being in a medium security facility where there are educational opportunities, jobs to engage in, and congregate time for meals and recreation.

Every state in America has enacted some form of sentence enhancement legislation. Many use enhancements for repeat offenders to lengthen the mandatory sentence and increase the severity (or level) of punishment as well as move the offender from a minimum or facility to a maximum or super-maximum prison. The Violent Crime Control and Law Enforcement Act of 1994 framed the "three strikes and you're out" policy to mandate life without parole for the felons convicted for the third time of violent (including sexual assault and rape) or significant drug-related offenses. "Truth in sentencing" legislation requires that convicted violent or major drug-related offenders serve at least eighty-five percent of their imposed sentences before they can be considered for parole or early release.

Another type of sentence enhancement occurs when an individual is convicted of a "hate crime," in which a victim or crime location is chosen because of what it represents. That is, targeting a victim based on (actual or perceived) ethnicity, culture, race, religion, sexual orientation, gender, age, or disability status. Hate crime sentencing enhancements were intended to augment federal and state sentencing enhancement legislation ratified in 1994.

FURTHER RESOURCES

Books

Tonry, Michael, ed. The Handbook of Crime and Punishment. New York: Oxford University Press, 2000.

Walker, Samuel. Taming the System: The Control of Discretion in Criminal Justice, 1950–1990. New York: Oxford University Press, 1993.

Zimring, Franklin, Gordon Hawkins, and Sam Kamin. Punishment and Democracy: Three Strikes and You're Out in California. New York: Oxford University Press, 2001.