What’s AB 518 and How Does it Alter Penal Code § 654?

On October 1, 2021, Governor Gavin Newsom signed Assembly Bill 518 into law. The law, which revised Penal Code § 654, will be effective January 1, 2022. It broadens judicial discretion to chose among various sentence lengths when two or more code sections penalize the same conduct.

Current law, under Penal Code § 654, forbids punishing a person under more than one provision of the law that forbids the same conduct. This is often seen as California’s codification of the prohibition against double jeopardy. Section 654 further provides that “[A]n acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”

However, section 654 also states that when an act or omission is punishable in different ways by different laws be punished under the law with the longest possible term of imprisonment.

Assembly Bill 518 changes this, permitting the judge, when defendant faces punishment under different laws with different lengths of punishment, the choice of imposing a sentence under any one of the provisions. However, if any one of the competing laws forbids probation, the judge may not refer defendant to probation. If one of the laws imposes a mandatory state prison sentence, the judge must impose state prison, but the term may be of the lowest term allowed by any of the laws potentially applicable for sentencing defendant.

The Author’s Statement to the bill points to the need to restore judicial discretion in sentencing as the purpose of this amendment, bringing a judge’s Penal Code § 654 discretion to its pre-1998 level, as recognized in People v. Norrell (1996) 13 Cal.4th 1.

Inglewood Courthouse"(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;
(2) Whether the defendant was armed with or used a weapon;
(3) The vulnerability of the victim;
(4) Whether the defendant inflicted physical or emotional injury;
(5) The degree of monetary loss to the victim;
(6) Whether the defendant was an active or a passive participant;
(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur;
(8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism . . . ;"(1) Prior record of criminal conduct . . . including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct;
(2) Prior performance on probation or parole and present probation or parole status;
(3) Willingness to comply with the terms of probation;
(4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;
(5) The likely effect of imprisonment on the defendant and his or her dependents;
(6) The adverse collateral consequences on the defendant's life resulting from the felony conviction;
(7) Whether the defendant is remorseful;