SB 81 – When Judge Can Refuse to Strike Enhancement
In 2021, the California State Legislature enacted Senate Bill (SB) 81, which amended Penal Code § 1385 to specify mitigating circumstances that the trial court should consider when deciding whether to strike enhancements from a defendant’s sentence in the interest of justice.
In particular, § 1385(c) states that the court “shall 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.” Section 1385(c)(2) states that the judge “shall consider and afford great weight to evidence offered by defendant to prove any of the mitigating circumstances in paragraphs (A) to (I) are present.”
Paragraph (C) states that “The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.”
The judge, however, is not required to strike the enhancement if dismissal of the enhancement would endanger public safety. § 1385(c)(2).
Senate Bill 81 states that these requirements “shall apply to sentencing occurring after the effective date of Senate Bill 81,” which was January 1, 2022.
While a person may have been sentenced prior to January 1, 2022, the reader may be aware that in many cases recently, the Secretary of the CDCR and / or the District Attorney for the county where defendant was convicted may recommend that the judge recall and resentence an individual on one of many grounds. This has been particularly true on firearm enhancements (as made discretionary under Senate Bill 620).
This background is important to better understand the case of Kevin Lipscomb and his request for resentencing under SB 81.
On June 4, 2007, at approximately 11:55 a.m., Kenneth Lee parked his car in San Francisco and got out. He then walked to a nearby crosswalk where he waited for the pedestrian crossing light to turn green. As he stood there, a silver Dodge Charger driven by Lipscomb pulled up into the crosswalk.
Lipscomb made eye contact with Lee and kept looking over at him. Mr. Lee later testified that he noticed this and thought perhaps he knew the driver or that he was lost and needed directions. So, Mr. Lee bent down to peer into the open passenger window and asked, “Can I help you?”
Mr. Lee then realized he did not recognize the driver, but watched Lipscomb as he smirked and reached over toward Mr. Lee and pointed a gun at him. Lipscomb then shot Lee three times. Lee then collapsed on the sidewalk and Lipscomb drove away.
A number of San Francisco police officer gave chase and a high speed pursuit took place until Lipscomb got stuck in traffic and tried to flee on foot. He was later found in an abandoned building and arrested.
He was then prosecuted and took the case to trial. The jury found him guilty of many charges and the judge sentenced him to 67 years to life in prison. The sentence included multiple enhancements for using a firearm and that Lipscomb had suffered three prior serious felonies qualifying as strikes and that he had served two prior prison terms.
In 2019, Lipscomb petitioned pursuant to People v. Vargas (2014) 59 Cal. 4th 635 on grounds that two of his prior strike convictions were based on the same criminal act and the trial court granted the petition, dismissing one of the prior strikes and resentencing Lipscomb to 35 years to life. In doing so, it declined to strike the 25-to-life firearm enhancement under Penal Code § 12022.53(d), although the judge had discretion to do so under SB 620.
Lipscomb appealed this ruling and while his appeal was pending, SB 81 became effective, so Lipscomb amended his appeal to argue that the court also should apply SB 81 to reduce his sentence because it was over 20 years.
The trial court again declined to reduce the sentence, finding that to do so would endanger public safety. The judge noted that the crime involved “great violence, great bodily harm, threat of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness and callousness.” The judge further noted that Lipscomb’s prison records showed “fighting, not following direct orders, a history of aggression and impulsive behaviors” and that his interest in changing has been nonexistent” and he “consistently refused to attend” psychiatric appointments and mental health treatment.”
Lipscomb then appealed to the First Appellate District, which affirmed the trial court.
For more information about Senate Bill (SB) 81, please click on the following articles:
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