People v. Lipscomb
87 Cal.App.5th 9
Cal. Ct. App.2022Background
- In 2007 Kevin Lipscomb shot Kenneth Lee multiple times from a car, leading to convictions for various offenses and firearm enhancements; original aggregate sentence was 67 years to life.
- In 2019 Lipscomb obtained resentencing relief under People v. Vargas (two prior strikes reduced), and in February 2022 the trial court resentenced him to 35 years to life.
- At resentencing the court considered whether to strike the 25‑years‑to‑life firearm enhancement (§ 12022.53(d)) under Penal Code § 1385 as amended by SB 81, analyzed ~2,000 pages of records, and found dismissal would endanger public safety.
- The court declined to strike the firearm enhancement and imposed an aggregate term of 35 years to life; it also imposed restitution fines totaling $17,000 and a matching suspended parole revocation fine.
- On appeal Lipscomb argued § 1385(c)(2)(C) mandated dismissal of any enhancement that "could result in a sentence of over 20 years;" he also challenged the $17,000 restitution fine as exceeding the $10,000 statutory maximum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1385(c)(2)(C) requires mandatory dismissal of an enhancement when its application could result in a sentence over 20 years | The People: § 1385 must be read as a whole; the court retains discretion and may keep an enhancement if it finds dismissal would endanger public safety | Lipscomb: the clause "In this instance, the enhancement shall be dismissed" is mandatory and requires dismissal whenever the enhancement could push the sentence over 20 years | The court held dismissal is not mandatory; where the trial court expressly finds dismissal would endanger public safety, it may impose the enhancement; affirmed the refusal to strike the enhancement |
| Whether the trial court erred by imposing $17,000 in restitution fines | The Attorney General conceded the total fine exceeded the statutory $10,000 maximum and should be reduced; proposed simply reducing both fines to $10,000 | Lipscomb asked for remand for imposition of lawful restitution fines | The court ordered the restitution fine and parole revocation fine reduced to the statutory maximum of $10,000; otherwise affirmed |
Key Cases Cited
- People v. Tirado, 12 Cal.5th 688 (2022) (discusses court discretion to strike firearm enhancements)
- People v. Sek, 74 Cal.App.5th 657 (2022) (applied SB 81 on resentencing and discussed its retroactive application)
- People v. Vargas, 59 Cal.4th 635 (2014) (grounds for resentencing when prior strikes derive from same act)
- People v. Martin, 42 Cal.3d 437 (1986) (discusses principles for weighing mitigating circumstances and judicial discretion)
- Skidgel v. California Unemployment Ins. Appeals Bd., 12 Cal.5th 1 (2021) (statutory interpretation principles: read statute as a whole)