Law Change: Updates to California’s determinate sentencing laws

Recent changes to California’s Determinate Sentencing Law include requiring judges to acknowledge various types of trauma when selecting a sentence, creating new affirmative defenses for victims of human trafficking, intimate partner violence, and sexual abuse, and creating a post-conviction procedure for resentencing based on trauma.

Amendments to Penal Code 236.23 and 236.24 create new affirmative defenses for victims of human trafficking and intimate partner violence, respectively, who were coerced to commit a crime and had a reasonable fear of harm. If the defendant prevails on the affirmative defense, their records will be sealed, and they will be released from all penalties and disabilities resulting from the arrest, filing of charges, etc.

The addition of Penal Code 1016.7 requires prosecutors to consider whether a defendant has experienced trauma, is youthful (under 26), or is a victim of intimate partner violence or human trafficking during plea negotiations.

Amendments to Penal Code 1170, subdivision (b) mandate that the court impose a sentence not to exceed the middle term unless aggravating circumstances have been stipulated to by the defendant or found true BRD at trial. Trial as to the aggravating circumstances shall be bifurcated and separately tried. The court must include in the record the facts and reasons for choosing the sentence imposed, and the upper term may not be imposed based on any enhancement upon which sentence is imposed.

The changes also require the court to consider whether the defendant has experienced trauma, was a victim of intimate partner violence or human trafficking, or was younger than 26 when the offense was committed when recalling a sentence or resentencing a juvenile LWOP case.

Penal Code section 236.15 makes the changes retroactive and allows for post-conviction relief for those arrested or convicted of any nonviolent offense committed while the person was a victim of intimate partner or sexual violence. The prevailing petitioner is entitled to vacatur of the conviction, expungement of arrest(s), and record sealing if certain conditions are met.

The changes outlined above are significant and aim to provide greater protection and relief for victims of trauma, including human trafficking, intimate partner violence, and sexual abuse. These changes also seek to create new affirmative defenses and post-conviction procedures for those affected by such trauma. It’s important to keep in mind that these changes are specific to California and may not apply to other jurisdictions.