A Few Seconds Becomes Two Years

I made an error: instead of giving a jury instruction for Penal Code section 12022.7(b), I mistakenly allowed the court to give an instruction for Penal Code section 12022.7(a).  Since (b) carries a 5 year sentence, and (a) only carries a 3 year sentence, this mistake means that the defendant will be released 2 years early.  That’s 2 extra years on the street.  Two years that he must treasure, but that the victims must fear.  All because the judge and I missed something: a moment that probably took 10 seconds out of a week-long trial.  There are procedures I could put in place to avoid making this kind of error.  I should more carefully compare the instructions given with the instructions outlined in my trial notes.  That would work, and that’s a lesson that I need to take from this.  But it amazes me how such a short error, buried in so much other work, could have such a large effect on the defendant and victims.  That’s one aspect of the job that continually surprises me.  So much attention to detail is required and so little time for detail is allowed.

The error was discovered at sentencing.  The victim’s family made their statements, as did the defendant. The defendant’s sister gave a heartfelt statement.  The defendant was sentenced to the maximum, after the two years was deducted by the court.  The defendant’s sister came up to me and said, “did you laugh when you said you were going to give my brother the maximum?”  I did not answer.  I just walked out of the court and down the hall towards my office.  I could hear the defendant’s family and the victim’s family arguing in the hallway after the sentencing.  I didn’t want to make the drama worse, since clearly the defendant’s family wanted to argue with me as well, but walking down the hallway still felt a little bit like running away.  So I stopped, turned around, and collected the victim’s family.  We used the staff elevator to go to the ground floor, where I could arrange a sheriff to escort them to their car.  On the way, the victim’s family said that they felt the sentence imposed was too short, and that he would be out in a minute.  I wanted them to have closure.  I wanted them to feel avenged, in a way.  I was disappointed that they did not have that.  And I was disappointed in myself for the 2 year error.


  1. Stacey says:

    I made a similar mistake recently. The defendant was charged with 245(a)(1) with a 12022.7(a) GBI enhancement, and 243(d) with a 12022(b)(1) personal use of a deadly weapon enhancement. Inadvertently, the jury instructions were incorrect, and listed the 12022(b) enhancement for both counts. Naturally, the jury didn’t find the enhancement for ct 1, however did for ct 2. Since the counts are 654, I lost the extra 2 years I would’ve gotten if the jury instructions had been correct; a costly mistake I plan to never make again. My sole silver lining I guess is that the victim didn’t care, since he’d gone sideways on me anyway.

    Liked by 1 person

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