Senate Bill 1393: When Does Judge Abuse Discretion?

A jury convicted him of burglary, assault with a deadly weapon and making a criminal threat. He had a prior serious felony conviction and the trial court judge imposed the five-year serious prior felony enhancement, adding five years to his sentence under Penal Code § 667(a). His total sentence was 21 years and four months in state prison. This sentence also included four one-year enhancements for having four prior prison sentences (under AB 136, the imposition of such prior enhancements under Penal Code § 667.5(b) is illegal now). Shaw’s prior serious felony was 25 years old.

Mr. Shaw filed a petition for resentencing under Senate Bill 1393 and the judge, Frederick L. Link, again imposed the five-year serious felony enhancement.

Shaw then appealed to the Fourth Appellate District Court for review because he believed Judge Link abused his discretion in not striking the five-year prior serious felony conviction.

The Fourth Appellate District affirmed Judge Link, who had considered a long list of prior convictions since 1987, which he characterized as a “one-man crime wave.” The Fourth Appellate District reviewed the record from the resentencing hearing and found that Judge Link had considered the relevant factors and reasonably concluded that it would not be ‘in furtherance of justice” to strike the five-year enhancement.

The trial judge stated that he stood by the reasons he had articulated at the original sentencing hearing. At that prior hearing, he remarked that this was a “serious case.” Although the victim managed to escape with just a cut on his lip, Shaw still “busted into somebody’s home with an axe in hand” and attacked him a hatchet.” That the judge found no factors in mitigation at the original sentencing hearing further supports his ruling.

Judge Link allowed, “while Shaw seemed to be a nice guy,” he clearly had a problem. Since 1987, he had been convicted of firearm possession, assault with a deadly weapon, theft and possessing, selling, and transporting controlled substances. Taken together with this case, Judge Link described Shaw as a “one-man crime wave.” There were frequent convictions.

However, the Fourth Appellate District did remand the case to the trial court with instructions that it strike four years of the sentence, one year for each prior prison term as provided in the new AB 136 amending Penal Code § 667.5(b).

We bring this case summary to the reader’s attention to show that even when the prior serious felony conviction is 25 years old, it may not be stricken and this would not be an abuse of discretion if defendant had multiple convictions since then.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Shaun Reginald Shaw (4th App. Dist., 2020) 56 Cal. App. 5th 582, 270 Cal. Rptr. 3d 554.

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