First SB 136 case–TLDR: it applies retroactively

SB 136 abolished the one-year prison prior enhancement codified at Penal Code section 667.5.

The Fifth District Court of Appeal held yesterday, in People v. Lopez (WL cite not yet available), that SB 136 applies retroactively to any case not yet final on appeal. A case is final 90 days after the California Supreme Court denies review. Supplemental brief the shit out of this!

I have several pending appeals where the AG has conceded the issue. Although I hesitate to say this about anything in the criminal justice system, it is a slam dunk assuming your client’s case is not yet final.

If his or her case is final, you can always argue that it violates the Equal Protection Clause to deny him/her relief. This argument is kind of a loser. Here is some sample language you can use which I drafted for a similar bill, SB 1393:

Appellant is entitled to relief because otherwise his right to equal protection under the 14th amendment to the United States constitution and Article I, section 7 of the California constitution would be violated, as appellant argued in his motion. This is because, appellant is similarly situated to persons whose cases are not yet final on appeal, and there is no compelling state interest, or rational basis, to treat appellant differently from those individuals.


The equal protection clauses of the Fourteenth Amendment to the United States constitution and Article I, section 7 of the California constitution require that similarly situated defendants be treated alike.  “[N]o State shall . . . deprive any person of . . . liberty . . . without due process of law nor shall any person be denied equal protection of the laws.”  (U.S. Const., Amend XIV; see also Cal. Const., art. I, § 7 [“A person may not be . . . denied equal protection of the laws.”].)  Laws must “affect alike all persons similarly situated”, and any classifications imposing different treatment on selected groups of persons must serve legitimate legislative objectives.  (Truax v. Corriginan (1921) 257 U.S. 312, 332-333.)

Where a law affects a fundamental interest or right, a reviewing court evaluates whether the law violates the equal protection clause under the strict scrutiny test.  (People v. Olivas, supra, 17 Cal.3d at p. 251.)  Under the strict scrutiny test, “the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose.”  (Ibid. [emphasis in original].)   

If the law at issue does not implicate a fundamental right, then it is subject to the rational review test.  (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)  Under that test, the law violates the equal protection clause if there is no “rational relationship between the disparity of treatment and some legitimate governmental purpose.”  (Ibid.)

The law at issue here implicates appellant’s fundamental right to liberty because the law governs whether appellant will be deprived of his liberty for an additional five years.  (See People v. Olivas, supra, 17 Cal.3d at p. 251 [applying strict scrutiny to evaluate criminal sentencing issue because liberty is a fundamental right]; see also In re Maurice S. (1979) 90 Cal.App.3d 190, 193 [“Classifications that deal with restraints on liberty are subject to the strict scrutiny test”].)  Even if the rational basis test applies—which provides that a law violates the equal protection clause if it treats similarly situated persons differently without a rational basis—appellant is entitled to relief.


“‘The first prerequisite to a meritorious claim under the equal protection clause is showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 [emphasis in original] [overruled on other grounds by Johnson v. Department of Justice, supra, 60 Cal.4th at p. 888].) This concept “compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” [Citation.]” (In re Eric J. (1979) 25 Cal.3d 522, 531 [internal quotations omitted].) “This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [quoting People v. Gibson (1988) 204 Cal.App.3d 1425, 1438].)       

Appellant is similarly situated to persons whose convictions are not yet final and therefore eligible for a resentencing hearing under SB 1393.  Both appellant and these persons are in identical positions—they were deprived of the opportunity to have the trial court strike the five-year enhancements imposed because of the law that existed at the time they were sentenced.

People v. Brown (2012) 54 Cal.4th 314, makes clear that appellant is similarly situated with persons whose convictions are not yet final.  In Brown, the California Supreme Court held that a defendant was not similarly situated with persons whose convictions occurred after the effective date of a statute that gave inmates more credits for good behavior.  (Id. at p. 329.) This fact sufficiently distinguished the defendant from those eligible for credits because “the important corrections purposes of a statute authorizing incentives for good behavior [citation] are not served by rewarding prisoners who served time before the incentives took effect and thus could not have modified their behavior in response.”  (Id. at pp. 328-329.)  Important to the issue here is the Court’s reasoning for distinguishing Brown’s case from In re Kapperman (1974) 11 Cal.3d 542.  In Kapperman, the California Supreme Court held that the equal protection clause required retroactive application of an expressly prospective statute granting credit to felons for time served in local custody before sentencing and commitment to state prison.  (Id. at p. 550.).  The Court in Brown explained that this differed from Brown’s case because credit for time served “is given without regard to behavior, and thus does not entail the paradoxical consequences of applying retroactively a statute intended to create incentives for good behavior.”  (Brown, supra, at p. 330.)

Thus, the critical difference for ascertaining whether a defendant is similarly situated with a group who has received an ameliorative benefit under a new law is whether there would be any incentive for the defendant to adjust his conduct after the enactment of the new law, which would not have existed at the time of the old law.  Here, there is no such incentive for several reasons.  First, under both the old and new versions of Penal Code sections 667 and 1385, a defendant would be subject to a five-year enhancement for suffering a prior serious or violent felony.  This means that the deterrent value at play when the defendant committed the prior offense was identical under the new and old law.  That is because the enhancement would only be triggered in the new case if the offense had already been committed. Thus, the incentive for not committing the prior offense would be identical prior to, and after, the law was enacted.

Second, the new law only affords the defendant the opportunity to have his five-year enhancement stricken.  Thus, the circumstances are unlike the situation where a defendant would automatically have his sentence reduced (as in Brown) if he modified his behavior.  Accordingly, appellant is similarly situated with those persons whose convictions are not yet final.


There is no compelling interest or rational basis to treat appellant differently from persons whose appeals are not yet final and who are therefore entitled to a resentencing hearing under SB 1393.  As stated above, there is no difference between a defendant who suffered a prior conviction triggering the five-year enhancement, but whose case was final, and a defendant who suffered a prior conviction triggering the five-year enhancement, but whose case was not final.  Typically, as stated in Brown, a compelling or rational reason for distinguishing between two groups deprived of their liberty would be if there is some deterrent value in applying the law only to those persons whose crimes were committed after the effective date of the new law.  Here, there would be no deterrent value.  That is because, as stated above, a five-year enhancement is only triggered if the person already committed the offense for the serious or violent felony.  Thus, there could be no deterrent value because the law only applies to people who have not been deterred from committing the prior offense.  Because there is no compelling or rational reason to treat appellant differently from those whose cases are final, appellant’s right to Equal Protection would be violated if he is denied a resentencing hearing.

Published by Jenny Brandt

About Me: sociology, african american studies, chicano/a studies, critical race studies, and criminal law scholar. public school kid from kindergarten-J.D. Former public defender. I am a post-conviction guru. Appeals. Sentencing. Withdraw Pleas. Habeas. Published author in the Criminal Law Bulletin and California Defender. "I do it for the joy it brings, because I'm a joyful girl, because the world owes me nothing, and we owe each other the world." Why I started JJC: My PD buddy suggested it. What and who JJC is inspired by: public defenders I have worked for, with, and next to. my clients who have battled things no one should and are still here. innocence and guilt and everything in between. My coworkers, who fight just as hard as the PDs I love, for many of the same reasons. My husband who was once voted "most Christ like" (every Jewish girl's dream). My Corgi who loves everyone. The constitution. Tabloids. My mom, for giving me a voice. My dad, for teaching me what to say. My brother, for teaching me how to say it.

what chu got to say?!

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: