For years the law in California was use of a gun in the commission of a felony meant a State Prison sentence if convicted. The consequences of gun use in commission of a crime went beyond just the fact that it made a State Prison sentence mandatory, it also meant that the credits a person earned in custody were limited. In addition, for future crimes, the use of a gun meant that it was a violent felony.
Now, under Senate Bill 620 starting January 1, 2018, anyone charged with the enhancement of Penal Code Section 12022.5 or 12022.53 (use of a gun during a felony) may become probation eligible if the judge strikes the enhancement. SB620 gives the judge, who is doing the sentencing, the option to strike the 12022.5 or 2022.53 enhancement if he or she feels it is appropriate in the interests of justice.
How this will be implemented is still unresolved. If the Court strikes the enhancement pursuant to Penal Code section 1385(a) then it may be that the crime is no longer a violent felony leading to the possibility that the underlying crime isn’t even a strike. However, if it is stricken only for purposes of sentencing, it may be that the conviction will still qualify as a strike and decrease the credit for time served.
Confused? Add this to the mix: How the client is presented to the judge, who the judge is, and how the case is handled by the lawyer may make all the difference and be absolutely critical to the result. To say that the wisdom, judgment and experience of your lawyer is important cannot be overstated.
Stay tuned as the court system struggles to implement this new law and figures out how it interacts with the prison system in terms of credit for time served.