Last year brought a barrage of news you may find dispiriting, instigated by a President alleged to be racist, intolerant, and ignorant. This year has already provided more of the same news, and today his recent comments cause considerable alarm, but perhaps not for those who believe that Haitians and Africans are less worthy immigrants than Norwegians, for example. Many agree, and I have heard it said (to borrow a rhetorical flourish of his) that our President’s viewpoints and policies are antithetical to notions of equal protection and due process under the law. For starters, he has expressed approval of torture and summary executions, argued for beating protesters, expressed contempt for the courts, accused federal judges of bias based upon their race, and advocated for lying under oath. He argues the guilt of defendants exonerated by DNA evidence. He may have attempted obstruction of justice. His Attorney general has scaled-back civil rights prosecutions, removed charging discretion in mandatory-minimum cases, unleashed the DOJ to pursue marijuana matters, ended DOJ police reform, and rescinded guidelines against fines that overburden poor defendants.
In California, we know how to get along. It’s almost all good news on the state criminal justice front. Our clients, with few exceptions, continue to enjoy the benefits of criminal justice system reform advanced by progressive people inspired by notions of fair play and justice. We have also been helped by the old incarceration model almost bankrupting the State. (Do any of you recall the parking lot at RJ Donovan looking like a new car dealership, full of modified pickup trucks and pricey new vehicles all apparently driven by the members of the prison guard’s union? I do, and the parking lot now approximates the look of a public high school lot, as it should.)
I hope the progressive trajectory continues, but in the meantime, let’s take time in this article to enjoy some of the most inspired, impactful and significant recent changes in California criminal justice. As Chuck Sevilla admonishes, “competence rests on knowledge,” and “knowledge is power.” So be prepared to take advantage of these relatively new laws.
- Juvenile Justice: Proposition 57 and SB 260, SB 261, SB 394, and AB 1308, provide youth offender parole hearings to people serving life or lengthy determinate sentences who were 25 years old or younger at the time of their crime and a parole hearing to those who were under the age of 18 at the time of their crime and sentenced to life without the possibility of parole, see California Penal Code sections 3041, 3046, 3051, and 4801. As usual, there are some exceptions; see, http://prisonlaw.com/wp-content/uploads/2017/10/Youth-Offender-Parole-Guide-v9-oct-4-2017-final.pdf.
- Parole: Proposition 57 also provides parole for non-violent inmates when the “full term” for the “primary offense” is completed, exclusive of enhancements, consecutive sentences, or alternative sentences. This is great news for thousands of prisoners. California Department of Corrections and Rehabilitation (CDCR) guidelines for implementing parole are set forth in 15 CCR 2449.1, et. seq. Note that lawyers are not appointed to assist in a determination of eligibility even though the Board of Parole Hearing Commissions is conducting reviews and the District Attorney is expressly part of the process. If your client is up for eligibility consideration, you need to get involved. https://www.cdcr.ca.gov/BOPH/nvopr_overview.html.
- Prison Credits: Since 2009, CDCR has been subject to Federal Judicial oversight for overcrowding. As of December 15, 2017, CDCR is 135% over design capacity, per case 3:01-cv-01351-JST, document 3000. Proposition 57 established new Article I, section 32 in the California Constitution, which requires CDCR to issue rules regarding credits and early parole. In response, CDCR has expanded credits for good behavior and approved rehabilitative or educational programs on an emergency and temporary basis until the rule-making process fully plays out and overcrowding is handled. The allowed credits are more than those credits provided for in the Penal Code (which remains unchanged). As such, I worry this is a gift that CDCR can and will take back .For now, see how much your client benefits: http://prisonlaw.com/wp-content/uploads/2017/04/Prop-57-Parole-and-Credits-Dec-14-2017.pdf.
- Marijuana: Proposition 64 radically changed the landscape for the prosecution of marijuana related offenses and allows for several types of relief. Resentencing, resignation, and sealing of criminal records are set forth in Health and Safety Code sections 11362.1, 11362.2, 11362.3, and 11362.4; see also, http://www.courts.ca.gov/documents/prop64-Memo-20161110.pdf.
- Post-Conviction Relief: Penal Code section 1473(3)(a) allows habeas relief when new evidence is presented that would have “more likely than not” changed the outcome at trial. Time to file the habeas has passed? Penal Code section 1473.7(2) is written in the disjunctive to provide two distinct reasons for relief when newly discovered evidence of actual innocence exists: “as a matter of law or in the interests of justice.”
- Immigration Consequence Relief: Penal Code section 1473.7(a)(1) provides a statutory basis to challenge a conviction or sentence as invalid “due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contender.” The recent decision Jae Lee v. United States 582 U. S. ____ (2017), provides a bookend to 1473.7 so that non-citizen California defendants have a powerful tool for attacking defective convictions; you can find more information and briefing samples at https://www.ilrc.org/immigrant-post-conviction-relief.
- Diversion: The “Deferred Entry of Judgment” program is again a true “pretrial diversion” program. See, Penal Code § 1000, amended by AB 208.
- Electronic data: The Legislature continues to tinker with the “”Electronic Communications Privacy Act,” at Penal Code section 1546 et. seq. The essential features of the Act remain unchanged. As suppression of evidence is provided for violation of privacy protections for Californians’ electronic information and electronic devices, the Act is required reading for criminal defense lawyers.
- Sex Registration: SB384 (effective 2021), replaces the lifetime registration requirements under Penal Code section 290, et. seq., with a three-tier system of 10/20/life, much like the Federal model.
- Voir Dire: AB1541 amended Code of Civil Procedure section 223 to provide that “[t]he trial judge shall permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case or the parties before the court . . . [t]he trial judge shall not impose specific unreasonable or arbitrary time limits or establish an inflexible time limit policy for voir dire.”
- Guns: Good news, SB620 provides discretionary relief from the formerly mandatory gun enhancements in Penal Code sections 12022.5 and 12022.53 (7-11 stores will have to take down the “use a gun go to prison” posters to be replaced by “use a gun probably go to prison” posters); SB180 greatly limits the application of the three-year enhancement under 11370.2.
- Guns: Some bad news, Proposition 63 amends Penal Code Section 29810 et. seq. to require prohibited persons to comply with firearm reporting provisions and the transfer of firearms within certain deadlines. The law is triggered “upon conviction,” requires County Probation to report compliance, has time-deadlines of 5 days for those not in jail and 15 days for those in jail, and authorizes searches of locations based upon probable cause to believe firearms may be present. Obviously, the 5th Amendment is implicated, and our clients should be advised accordingly.
Ok, that felt good to write. I am comforted by the fact that many favorable California enactments are not listed here and many more are on the way. So, until the Special Counsel Robert S. Mueller completes his work, or perhaps in 7-years, whichever is first, some of you might want to balance depression-inducing national criminal justice news with mood-elevating California criminal defense CLE courses!*
By the way, I am solely responsible for the content of this article and none of the views expressed here should be taken as an express or implied endorsement by CDLC or CDBA of any political candidate, party or office.
Domenic J. Lombardo
President, Criminal Defense Lawyers Club of San Diego
*Audio and written CLE’s are available on the California Public Defender’s Association website, http://www.claraweb.us/.