SB 1393: Can Judge Lower Sentence if Plea Bargained?

Assembly Bill 124 became effective on January 1, 2022.  It added Penal Code § 1170(b)(6), which provides that unless a judge finds that aggravating circumstances of a crime outweigh the mitigating circumstances such that imposition of the lower term would be contrary to the interests of justice, the judge shall order imposition of the lower term if any of three specified circumstances was a contributing factor in the commission of the offense.

The three specified circumstances were that defendant “has experienced psychological, physical or childhood trauma, including, but not limited to, abuse, neglect, exploitation or sexual violence.”

Gloria Nyleen Kelly, described by the Second Appellate District Court in Ventura as a repeat offender who previously served seven separate prison terms, faced a “Three Strikes” 25 to life sentence in Ventura County Superior Court.  She was charged with first degree residential burglary (Penal Code §§ 459, 460).

The information alleged that Ms. Kelly had been convicted of three prior serious felony convictions (Penal Code § 667(a)(1), had served seven prior prison terms (Penal Code § 667(b)), and had been convicted of three prior serious or violent felonies within the meaning of California’s Three Strikes Law.

At the same time, Ms. Kelly faced a separate criminal case for violation of Vehicle Code § 23153(e), a felony, for driving under the influence of drugs and causing an injury.

Pursuant to a negotiated plea bargain, she stipulated to a sentence of 19 years and four months, consisting of 18 years for the residential burglary case with enhancements and one year, four months for the DUI, to run consecutive.  The 18 years consisted of four years on the residential burglary (middle term), doubled to eight years for a prior strike, plus ten years for the two prior serious felony convictions.  The judge struck the seven prior prison term enhancements.

Ms. Kelly then appealed and the trial court dismissed the appeal for lack of a certificate of probable cause (Penal Code § 1237.5).

The California Supreme Court granted review and transferred the matter to the Second Appellate District Court with directions to vacate the ruling and reconsider the case in light of People v. Stamps (2020) 9 Cal. 5th 685.

In Stamps, the California Supreme Court required that a court allow an appellant the opportunity to seek relief under Senate Bill (SB) 1393.  SB 1393 authorized a trial court the discretion to strike a Penal Code § 667(a)(1) prior serious felony conviction, which would then reduce a sentence by five years for each such prior serious felony conviction.

On remand, over the People’s objection, the trial court judge struck one of the two prior serious felony conviction, reducing Ms. Kelly’s aggregate sentence from 18 years to 13 years.  In other words, yes is the answer to the question posed in the title to this article: a judge may reduce a sentence under SB 1393 even if the sentence was plea bargained, under Stamps.

After this was done, Ms. Kelly appeals from the judgment, arguing that she was entitled to further resentencing in light of Assembly Bill 124.  She argued that she was entitled to a three-year sentence for burglary (rather than four) due to mitigating circumstances, which she specified as childhood trauma she experienced.

In other words, she was trying to whittle down the length of the sentence she agreed to serve even more.

The prosecution opposed the appeal, arguing that the court could not resentence her because the judge did not sentence her originally: it was a plea bargained, stipulated sentence.  The trial court judge had no discretion then to chose one of the three possible base terms of the sentencing triad for first degree residential burglary.  Moreover, given that the judge had no discretion and made no choice, Penal Code § 1170(b)(6) did not apply to Kelly’s sentence.

The Second Appellate agreed with the People on this issue.  Noting that Ms. Kelly faced an indeterminate life sentence based on the charges and enhancement, she agreed to a sentence that was substantially less to avoid sentencing by the judge after a jury verdict.

For more information about SB 1393, please click on the following articles: