New Laws 2018 San Diego County - PowerPoint Presentation

New Laws 2018 San Diego County Appellate Defenders Incorporated January 17, 2018 presented by Garrick Byers, Statute Decoder gbyerslaw@comcast.net

A BUMPER CROP! There’s a larger number of important new criminal law bills this year than any since I started compiling these in 1999. We’ve had years of greater overall importance, like 2011’s Realignment’s largest change in crim. law since 1978. This year’s large number means we’re only going to discuss a fraction now.

The Goals for Today’s Hour 1. To make you aware of some major changes. (You’re not going to remember details. But your memory will be jogged, when these come up again in your daily practice, and you then will look them up in detail.) 2. To cajole you into leafing through the written materials. You will find: more than I can go into today; edited versions making bills easier to read; and links and other finding aids.

New route to “seal” an arrest record. The main previous route: prove factual innocence, PC 851.8. [If granted, the seal can be broken for a few reasons.] New route: PC 851.91 : the arrest did not result in conviction (as defined). [If granted, the seal can be broken for many reasons.] Judicial council to make a form (not issued as of this writing.

3-yr. drug priors mostly gone Informal name: SB 180. Amends HS 11370.2. HS 11351, 11351.5, or 11352, gets Extra 3 years if D has – formerly , a bunch of similar priors – now only a prior for HS 11380 [adult using minor in certain drug crimes].

3-yr. drug priors mostly gone: Retroactive (says one case) P . v. Zabala (H043328, Jan. 11, 2018) Op’n on r’h’g ; orig. formerly published at 17 Cal.App.5th 22. From slip op. p. 1 : “Consistent with [D’s] rehearing request, we … vacate the trial court’s imposition of a three-year … enhancement under former [HS] 11370.2, subd [.] (c), in light of the newly enacted version of that statute eff[.] Jan[.] 1, 2018….”

PC 1000: now pre-plea diversion Qualifying offenses not changed from before, but are now mostly misdemeanors, but can be used by those with 290s and superstrikes, if D has no felonies in the last five years. D must waive JT to get Dvt. Gets only a court trial if fails the 12-to-18 month-long program. Better than drug-Prop 36: no guilty plea.

Electronic Filing is Coming to the Superior Courts We already do this in the appellate courts. PC 690.5 lets superior courts implement permissive electronic service and filing, as per CCP 1010.6, subd. (b ) by Local Rules. CA Rules of Ct 2.250 to 2.259, titled “Filing and Service by Electronic Means” apply.

Electronic Transcripts are Coming They may already be here, by request. CCP 271 will require them as standard practice as soon as the court and reporters have facilities and abilities, and for sure by Jan. 1, 2023. The cost structure remains the same.

Court Can Dismiss Gun Enhancements of 12022.5 and 12022.53 Adds to both: “ The court may, in the interest of justice pursuant to [PC] 1385 and at the time of sentencing , strike or dismiss an enhancement [under] this section . The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law . ”

Prohibited Persons Relinquishment Form (PPRF) Required by PC 29810 for all Ds whose conviction makes them prohibited, temporarily or permanently, under PC 29800 or 29805, from having guns. D must relinquish all guns through a designated person, and the PPRF.

ABA Criminal Justice Standard, Defense Function. 4-5.1(e) Defense counsel should provide the client with advice sufficiently in advance of decisions to allow the client to consider available options, and avoid unnecessarily rushing the accused into decisions.

PPRF ( a)(1) Upon conviction of any offense [listed in] [PC] 29800 or [PC] 29805 , [D] shall relinquish all firearms [D] owns, possesses, or has under [D’s] custody or control [by] … (3) Using the [PPRF to] … name a designee [either a local law enforcement agency or a 3rd party to] transfer[ ] or dispos[e] of any firearms.

D’s subject to PC 29800 (relevant provisions) (a)(1) Any [D] … convicted of … a felony …, or of an offense enumerated in [PC] … 23515 [subds. (a), (b) or (d) ] …. (a)(2) Any [D] [with] two or more convictions for violating [PC 417, subd. (a)(2)] …. (b) …, any person who has been convicted of a felony or of an offense enumerated in [PC] 23515, [resulting from] certification by the juvenile court [to] adult court under [WI 707] ….

D’s subject to PC 29800 (relevant provisions) Every crime in PC 23515 is either a wobbler or a straight misdemeanor. So , some misdemeanors do make D ineligible for guns for life. (a) PC 245, subds. (a)(2); (a)(3); and (d). (b) PC 246. (c) PC 417(a)(2) (d) PC 417(c)

D’s subject to PC 29800 (relevant provisions) PC 29805 : A wobbler to have guns within 10 years of conviction of some 41 PC misdemeanors , and some 5 WI misdemeanors . Among the PC misdo’s that don’t necessarily involve guns are 136.1, 240, 242, 243, 243.4, 245, , 273.5, 273.6, 422 and 646.9. Don’t rely on memory. Don’t rely on forms. Check PC 29805 every time.

PPRF: The Judicial Council Memo of November 2, 2017. http://www.yolocounty.org/home/showdocument?id=47015 Attachments: • Appendix 1, Qualifying Offenses • Proposition 63 Reference Guide • CR-210, Prohibited Persons Relinquishment Form Findings • BOF 1022, Prohibited Persons Relinquishment Form (PPRF) • BOF 1023, Defendant Firearm Relinquishment Information (Supplemental Form) • BOF 1024, Designee Firearm Relinquishment Information (Supplemental Form) • BOF 1025, Firearm Disposition Receipt • BOF 1026, Probation Officer Verification Form

PC 29810, subd. (f): What is an “alternative method of relinquishment”? This undefined method may be allowed “For good cause.” Per PPRF, guns are relinquished to law enforcement or licensed gun dealers. Per DOJ’s California Firearms Summary, 2016: ***“A ‘ Private Party Transfer’ (PPT) can be [done] at [a] licensed [CA] [gun] dealer[ ] [with a 10 day wait[], and forms and fees]. *** “[T]ransfer … between [parent, child, grandparent, or grandchild , need not] be conducted through a licensed … dealer.… [with] a Firearm Safety Certificate requirement …, prior to taking possession …. [and a report within 30 days to DOJ on form] “BOF 4544A”.

PC29810 & PPRF: Potential big appeal or writ issues Do the PPRF’s required statements re: alienage and guns violate the Fifth Amendment? Does PC 29810’s relinquishment requirement violate the Fourth or Fifth Amendments? Do PPRF’s alienage Qs violation the CVA or PC 1016.3 or 10156.5?

PC29810 & PPRF: Potential big appeal or writ issues What is the scope of PC 29810, subd . (g): (g) [D] shall not be subject to prosecution for unlawful possession of any firearms declared on the [PPRF] if the firearms are relinquished as required . What is the scope of “immunity” from use of the compelled PPRF statements, and PC 29810’s compelled relinquishment, in this and other prosecutions, revocations, immigration, etc.?

The Fair and Accurate Gang Database Act of 2017 PC 186.34, subd. (s) (1): Commencing January 1, 2018, any shared gang database … including, but not limited to, the CalGang database, shall be under a moratorium . During the moratorium, data shall not be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The moratorium … shall not be lifted until the [AG] certifies that the purge [in subd. (r)] has been completed. After [that] …, new data may be entered, provided [it] meets the criteria established by the … purge.

The California Values Act GC §§ 7284 to 7284.12 From the Legislative Counsel’s Digest: This bill [inter alia,] subject to exceptions, prohibit[s] state and local law enforcement …, including school police…, from using money or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, …. [and], proscribe[s] other activities … in connection with immigration enforcement by law enforcement agencies.… [whenever there is] discretion to cooperate with immigration authorities.

Jail Contracts With the U.S. to Detain People for Immigration Purposes: Limited From the Legislative Counsel’s Digest: This bill … prohibit[s] a city or county or local law enforcement agency from, on or after June 15, 2017, entering into a contract [or expanding or renewing an existing one] with the [feds] to house or detain [a] noncitizen in a locked … facility for … civil immigration custody. This bill … similarly prohibit[s] [these things for] minor[s] in the custody of or detained by [the federal Office of Refugee Resettlement or ICE] in a locked detention facility.”

Incompetent to Stand Trial (I.S.T.) "Determination of Probable Cause.” If D is charged with a felony involving death, GBI, or a serious threat to the physical well-being of another person, then, before D is found IST, P can request this. This is not a preliminary hearing. Reason: Before this bill, if such a D was found IST, and wasn’t restored after 3 years, but was still dangerous, D could not be put on the special “Murphy Conservatorship” for such Ds, unless there was an indictment or information. Now they can.

I.S.T.: “Brief Preliminary Evaluation” Amended Rule of Ct. 4.130 Subd. (a)(3) permits “a brief preliminary evaluation of [D’s] competency if (A) The parties stipulate to [do that]; and (B) The court orders [it] [under] a local rule … [specifying its] content … and the procedure for its preparation ….” When a full evaluation is ordered, amended Subd. (d)(2), now specifies the report’s required contents.

Voir dire expanded and liberalized: CCP 223, subd. (b)(1): “… The … judge.… shall permit liberal and probing exam[ ] calculated to discover bias or prejudice [regarding] the … case or the parties…. The fact that a topic has been included in the trial judge’s exam[ ] shall not preclude … followup [Qs] … by counsel. The … judge should [normally] permit counsel to conduct voir dire … without requiring prior submission of [Qs]….”

Voir dire expanded and liberalized: CCP 223, subd. (b)(2): The … judge shall not impose … unreasonable or arbitrary time limits or [have] an inflexible time limit policy …. [T]he trial judge shall permit supplemental time for [Qs] based on individual responses or conduct of jurors that may evince attitudes inconsistent with [service] as a fair and impartial juror ….

Voir dire expanded and liberalized: CCP 223, subds. (b)(3) & (c): (b)(3) [An] “improper [Q]” is any [Q] that, as its dominant purpose, attempts to precondition [J] … to a particular result or indoctrinate [them]. (c) In [using] discretion, the … judge shall consider …: (1) The amount of time requested by … counsel. (2) [U]nique or complex legal or factual elements …. (3) The [trial] length. (4) The # of [Ds]. (5) The # of [Ws].

Voir dire expanded and liberalized: CCP 223, subds. (d) – (f): (d) …. Exam[] of prospective jurors shall be conducted only in aid of the exercise of challenges for cause. (e) The … judge shall … consider …written questionnaires when requested …. If [one is used] the parties [get] be given reasonable time to evaluate the responses … before oral questioning …. (f) … [At] the earliest practical time, the … judge … shall provide the parties with the list of prospective jurors in the order in which they will be called.

Ms under 16 “shall consult with legal counsel” before custodial interrogation and Miranda waiver. WI 625.6. (a) Prior to a custodial interrogation, and … waiver of any Miranda rights, a youth [under 16 years old] shall consult with legal counsel in person, by telephone, or by video conference. [This] may not be waived. (b) The court shall, in adjudicating the admissibility of statements … consider the effect of failure to comply with subd[.] (a).

Ms under 16 “shall consult with legal counsel” before custodial interrogation and Miranda waiver. WI 625.6, subd. (c): This … does not apply to the admissibility of statements of a youth [under 16] if both of the following … are met: (1) The officer … reasonably believed the information … was necessary to protect life or property from an imminent threat. (2) The officer’s questions were limited to those … necessary to obtain that information.

Ms under 16 “shall consult with legal counsel” before custodial interrogation and Miranda waiver. “(d) This … does not require a [P.O.] to comply … in … normal performance … under [WI] 625, 627.5, or 628.” (e) [Requires the Governor to convene a panel of experts to review the implementation, effects, and outcomes, by Jan. 1, 2023, with another report due by April 2024. “(f) This section [sunsets on] January 1, 2025.”

What is the remedy for violation of WI 625.6? Cal. Const. Art. I, § 28, subd. (f)(2): “Except [for a] statute … enacted by a [2/3] vote … in each house …, relevant evidence shall not be excluded in … any trial or hearing of a juvenile …, whether … in juvenile or adult court.” This bill wasn’t passed by 2/3. In re Lance W. (1985) 37 Cal.3d 873: this “abrogated [D’s] right to … suppress evidence [violating] the [CA], but not the [U.S.], Const [.]” So, violation doesn’t automatically result in suppression, because the 4th Amend. doesn’t have this requirement. But, can the court consider violation as one among many factors? Trials in Juvy Court are by the court. Surely the court can consider the weight and credibility of violative statements.

Many Juvenile fees and costs eliminated or curtailed. WI 659 requires that parents or guardians whose child faces a juvenile court petition, get a notice that they and M are entitled to legal assistance, and that “… [they] shall be liable … for all or a portion of the cost….” To that is added : “but [they] shall not be liable for the cost of counsel or legal assistance furnished … for … representing [M].

Many Juvenile fees and costs eliminated or curtailed. Amendments to WI 634, 652.5, 654, 654.6, 656, and 700, eliminate the liability of a parent or guardian to pay many fees and costs formerly required.

Many Juvenile fees and costs eliminated or curtailed. Minors ordered into drug treatment under WI 729.9 no longer must pay for that. Parents and guardians no longer can be charged fees if Minor is ordered into drug and alcohol treatment under WI 729.10.

Many Juvenile fees and costs eliminated or curtailed. Many other juvenile fees and costs have been eliminated or curtailed by SB 190. So: for any costs and fees in a juvenile case, look them up, and see if they have been eliminated or curtailed.

Restraints on Juveniles During Transport, and in Court, Limited This bill, enacting WI 210.6, goes a long way to ending the spectacle of juveniles being paraded on city streets, or around courthouses in public view, while handcuffed and shackled.

Restraints on Juveniles During Transport, and in Court, Limited From new WI 210.6: (a) (1) Mechanical restraints, including, … handcuffs [&] chains, …may be used on a juvenile detained in … a local secure juvenile facility… during transportation outside of the facility only upon a determination … by the [P.O.], in consultation with the transporting agency, that … restraints are necessary to prevent … harm to [M] or another … or due to a substantial risk of flight.

Restraints on Juveniles During Transport, and in Court, Limited From new WI 210.6: (b)(1) Mechanical restraints may only be used during a juvenile court proceeding if the court determines that [M’s] behavior in custody or in court establishes a manifest need [for them] to prevent physical harm to [M] or another … or due to a substantial risk of flight.

No fees for Pub. Def. or appointed counsel if no conviction. Added to PC 987.8 [the main statute for these fees], is a new ending phrase to subd. ( i ), saying this only applies if D “is convicted of a felony or a misdemeanor.”

No drug testing or home detention fees for under Ds under age 22. Part of SB 190 on many juvenile fees and costs. Amends PC 1203.016 (electronic home detention); 1203.1ab (drug testing conditions for probationers); and 1208 (work furlough). E.g.: PC1203.016, subd. (g), now authorizes “a … fee [for] each … participant … over 21 ….”

Felony arrestees, FTAs, and pretrial release programs PC1319.5 lists a many situations where a D with a specified history of FTA’s, when arrested for a new offense, cannot get an O.R. without a court hearing. This bill changes the mix of those situations, and permits some releases of such people without a hearing under the auspices of approved pretrial release programs.

Employer’s ability to ask about, or use, conviction history limited. Adds GC 12952, Repeals Labor Code 432.9. From the Legislative Counsel’s Digest: The bill [prohibits] an employer with 5 or more employees to include on any application for employment [a Q seeking] … an applicant’s conviction history, [or from] … consider[ ing ] conviction[s] … until that applicant has received a conditional offer, and [limits consideration of certain] prior arrests, diversions, and convictions.

Employer’s ability to ask about, or use, conviction history limited. [ R]equire[s] an employer who intends to deny … employment … because of … conviction history to make an individualized assessment … of whether [this] has a direct[,] adverse relationship [to] the … [job.] [The] … employer [must give]… written [notice] of the [preliminary] decision [and give] an applicant 5 … days to respond … before the employer may make a final decision. [The applicant can dispute the record in writing, and gets 5 more days to get evidence.] “Conviction history” includes release on bail and O.R. [E]xempt[s] [jobs where the law requires consideration of convictions; criminal justice agencies; and as a farm labor contractor ].

Risk/Needs Assessment Rule 4.405(12) defines “ Risk/needs assessment ” as “a standardized, validated evaluation tool designed to measure [D’s] actuarial risk factors and specific needs that, if successfully addressed, may reduce the likelihood of future criminal activity.” Referred to in many Felony Sentencing Rules, mainly in re: probation. [E.g. Rule 4.411.5(a)(8); Rule 4.413(c)(3); and Rule 4.415(c)(8).

Risk/Needs Assessment New Standard of Judicial Administration 4.35 is “Use of Risk/Needs Assessments at Sentencing.” (f) Amenability to or suitability for supervision (1) A court should not interpret a “high” or “medium” risk score as necessarily indicating that [D] is not amenable to or suitable for community based supervision. [This] may be most effective for [Ds] with “high” and “medium” risk scores.

2 New Grounds to Issue a Search Warrant: PC 1524. Prop.63 added (a)(15) “[When] the … things to be seized include a [gun] … owned [etc., by] a [D] … subject to the [gun] prohibitions [of PC] 29800 or 29805, and the court has [found] pursuant to [PC 29810, subd. (c)(3),] that [D] has failed to relinquish the [gun] ….”

2 New Grounds to Issue a Search Warrant: PC 1524. AB 539 permits a search warrant : (a)(18) “When the … things to be seized [are] evidence [of] a violation of [PC 647, subd.] (j)(1), (2), or (3)” These are misdo. peeping or similar invasion of privacy offenses. (PC 647, subd. (j)(4), “revenge porn,” distributing private sexual images of another person, is not covered.

County Jail Felony Sentences in Two Counties: Where Served? Renumbered, new, PC 1170, subd. (h)(6): When the court is imposing a [county jail felony sentence] … concurrent or consecutive to [another such sentence] … previously imposed … in another county …, the [second] court … shall determine the county … of incarceration and supervision …. PC 1170.3, subd. (a)(7), says The Judicial Council must write a Rule for this.

PC 290: 3 tiers in 2021 Your Codes have 2 versions of PC 290 et seq.: one operative today, and one operative Jan. 1, 2021! You need to know 2021’s version to properly handle your PC 290 cases today! Even though the 2021 version could be legislatively changed in the next 3 years.

Eff. 1/1/21, PC 290 will become 3-tiered Tier 3 people cannot apply to end registration. [No tier 3 for 602’s (Juvy Court] Tier 2: can apply after 20 yrs. [602’s, 10 yrs.] Tier 1: can apply after 10 years. [602’s, 5 yrs.] Under this new law, no one’s registration is guaranteed to ever end.

Eff. 1/1/21, PC 290 will become 3-tiered Tell today’s Ds: “ Registration is for life; do not plead guilty unless you accept that. If the scheduled changes in 2021 do occur, and you are tier 1 or 2, then, 10 or 20 years [602’s, 5 or 10 yrs.], from now you can ask to end it; but the new law never requires that it ever end .”

What crimes will require registration? PC 290, subd. (c) adult mandatory list: Added eff. 1/1/18 are subds. (5) and (7) of PC 261, so now it is all of PC 261. PC 290.006: nominally unchanged. But might the court be more ready to use PC 290.006? PC 290.008: Juvy list: unchanged.

What adults will be in Tier 1? PC 290, subd. (d)(1), operative 1/1/21: [D] is a tier one offender if [D] is required to register for … a misdemeanor … in subd[.] (c), or for … a felony … in subd[.] (c) that was not a serious or violent felony … in [PC 667.5, subd. (c), or 1192.7, subd. (c). (B) This … does not apply [if D is in tier 2 or 3].

Adults in Tier 2: PC 290, subd. (d)(2): (A) [D] is [in] tier two … if [D] was convicted of [a Subd. (c)] offense … that is also [in PC 667.5, subd. (c) or 1192.7, subd. (c), or [of certain sex offenses]. (B) This … does not apply if [D] is [in tier 3].

Adults in Tier 3: PC 290, subd. (d)(3). (A) An already- regis . D is convicted of a PC 667.5, subd. (c), crime, for which regis . is required. (B) D. is an SVP; (C) , (J), and (R) Many individual crimes are listed. (D) On the State Authorized Risk Assessment Tool for Sex Offenders (SARATSO) D got “well above average.” ( E ) D is a habitual sex offender (PC 667.71). ( F ) D. was convicted of PC 288, subd. (a), in 2 cases; ( G ) D. got “15 to 25 years to life” under PC 667.61. ( H ) D. was NGI of a PC 290 crime; ( I ) Certain human trafficking sex crimes.

What Ms Will Be In Tiers 1 & 2? PC 290.008, subd. (d)(1) and (d)(2), oper. 1-1-21 After being made a ward, and discharging or paroling from CDCR for a PC 290, subd. (c) crime, M is in tier 1 if, the crime was not in PC 667.5, subd. (c) or PC 1192.7, subd. (c). M is in tier 2 if, the crime was in PC 667.5, subd. (c), or PC 1192.7, subd. (c). (.)

Undetermined; PC 290.006 If D’s tier cannot be “immediately ascertained,” DOJ can put D. in “tier-to-be-determined category,” for up to 24 months. (PC 290, subd. (d)(5), oper. 1-1-21.) The court can, at conviction or sentence, for stated reasons, order regis. for a crime not in PC 290, subd. (c) . Regis. is in tier 1 unless the court orders tier 2 or 3 , after considering 5 listed factors, including the SARATSO score. (PC 290.006, oper. 1-1-21.)

How Does D Petition to End Regis.? Certs. of Rehab no longer work. Procedures for filing a petition to end registration , are in PC 290.5, subds. (a)(1) and (a)(2), oper. 1-1-21. If P doesn’t request a hearing, and the listed criteria are met, the petition “shall” be granted. ( Ibid. ) If P requests a hearing , the court decides if “community safety would be significantly enhanced by requiring continued registration,” considering certain criteria “ including the person’s risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available .” (PC 290.5, subd. (a)(3) oper. 1-1-21.

Petition denied? SARATSO! If D’s petition is denied , the court sets a period of 1 to 5 years before D can file a new petition. (PC 290.5, subd. (a)(4), oper. 1-1-21.) To learn more about the SARATSO, visit the California Sex Offender Management Board at http://www.casomb.org/index.cfm?pid=1211 , and the SARATSO web site at http://www.saratso.org/index.cfm?pid=1350 .

Court Can No Longer Initiate a CDL Suspension by Reporting FTP to DMV. Amends VC 13365, 13365.2, 40509, and 40509.2 From the Legislative Counsel’s Digest: [Before this bill] the court [would] notify [DMV] when [D] … failed to pay a fine or bail, [for] various [VC] violations …, and require[d] [DMV] to suspend [D’s] [CDL] upon receipt of the notice, as specified. The bill … repeal[s] the [court’s] authority … to notify [DMV] of a failure to pay a fine or bail, thereby deleting the requirement for [DMV] to suspend a person's driver's license upon receipt of that notice.

Walk, Don’t Walk, and “Countdown” Signals Amends VC 21456. From the Leg. Counsel’s Digest: This bill … authorize[s] a pedestrian facing a flashing “DON’T WALK” or “WAIT” or approved “Upraised hand” symbol with a “countdown” signal to proceed so long as he or she completes the crossing before the display of the steady “DON’T WALK” or “WAIT” or approved “Upraised Hand” symbol.” Violation is an infraction. Coming up: Test on this.

Walk, Don’t Walk, and “Countdown” Signals Did you know that, before this bill, the violation was to enter the crosswalk during the countdown! I didn’t either. The bill’s author says the reason for this bill is to bring the law in line with what people thought it was already.

Thank you for listening! Garrick Byers Statute Decoder Writs, Appeals, Motions, Case Consultations. gbyerslaw@comcast.net (510) 965-9505