recent changes in the law


Diversion for offenders affected by mental disorders

Two new Penal Code sections, 1001.35 and 1001.36, now offer the possibility of diversion for some offenders affected by mental disorders. California Assembly Bill No. 1810 (2017-2018 Reg. Sess.) (hereinafter “AB 1810”), an omnibus mental-health bill, was signed by the Governor on June 27, 2018, and became effective immediately. Section 24, Chapter 2.8A of this legislation added Penal Code sections 1001.35 and 1001.36. These new sections grant the court the authority to order discretionary diversion of qualified persons who have committed a misdemeanor or felony where the person’s mental disorder “played a significant role in the commission of the charged offense.” (Pen. Code, § 1001.36, subd. (b)(2).)

Specifically, section 1001.36, subdivisions (b)(1) and (2), provide for a pre-trial hearing at which (1) the defense can present evidence of a defendant’s mental disorder, including a diagnosis by a qualified mental health expert, and (2) the court analyzes the role the disorder played in the commission of the charged offense. If the court finds the defendant’s mental disorder played a significant role in the commission of the charged offense, and “is satisfied that the defendant will not pose an unreasonable risk of danger to public safety” and “the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant,” “[t]he defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources,” for a period of no more than two years. (§ 1001.36, subds. (b)(1), (2) & (6), (c)(1)(A) & (B).)

Upon satisfactory completion of the period of diversion, “the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion” and “the arrest upon which the diversion was based shall be deemed never to have occurred.” (Pen. Code, § 1001.36, subd. (e).)

The new law sets forth a structure under which the defendant makes and then the court considers the request. The court cannot grant the request until it makes a dangerousness assessment – the same standard as that defined by Proposition 47 and codified in Penal Code section 1170.18, subdivision (c). (Pen. Code, § 1001.36, subd. (b)(6).)

(For a summary of the law, see Retired Judge J. Richard Couzens, July 13, 2018, Memorandum)


Whether this law will be retroactive within the meaning of In re Estrada (1965) 63 Cal.2d 740 – that is, applicable to all cases not yet final on appeal as of the law's effective date – is an open question.

ADI has already seen briefing on AB 1810 in cases at different stages of the appellate process in Division Three. In one, the court has granted counsel’s petition for rehearing and has asked for supplemental briefing on (1) whether Penal Code section 1001.36 applies retroactively to cases not yet final on appeal, and (2) if so, what would be an appropriate disposition.

In another, counsel had filed the AOB before AB 1810 became effective, but asked to strike that brief and file a new brief raising the argument that the case should be remanded so the trial court can consider ordering mental health diversion. The Court of Appeal granted the motion to strike the brief and file the new one addressing AB 1810.

In still another, the court granted a request for late filing of a petition for rehearing based on PC 1001.36 (after a Wende affirmance) and also granted rehearing without requesting an answer because the court's jurisdiction would soon expire. A supplemental opening brief is pending.

If your case is one where the trial court could have considered mental health diversion, the second question, on "what would be an appropriate disposition," could pose potential adverse consequences for your client. Because the law is new, there are numerous open questions: if diversion is granted, is a favorable plea bargain vacated? What happens to your client if he or she fails the mental health diversion? What constitutes "satisfactory completion"? Does your client want this remedy? Counsel must consider the potential downsides to diversion and the client’s wishes before raising this issue. It is essential to contact your ADI buddy for additional discussion.

Responsibilities of counsel

In pre-remittitur cases, appellate counsel should raise issues related to Penal Code sections 1001.35 and1001.36 when they would be beneficial, no matter what the stage. (See Potentially Favorable Changes in the Law, which discusses procedures at each stage of an appeal and basic principles of retroactivity.) Contact your ADI staff buddy for sample briefing.

California's sex offender registration laws to be restructured as of January 1, 2021

On October 6, 2017, Governor Jerry Brown signed into law Senate Bill 384, which makes significant changes to California’s sex offender registration law, Penal Code section 290 and associated statutes. Although these changes will not become operative until January 1, 2021, familiarity with the new law will enable counsel to explain its effects to affected clients and potentially, in some cases, bolster the prejudice argument of issues on appeal.

The heart of the change is the creation of different periods of required registration for different categories of convictions. Under the current system, all defendants subject to the registration requirement under section 290 must register for life while residing in California. Under the new section 290 operative in 2021, offenders are classified into three “tiers” with three different periods of required registration: 10 years, 20 years, and life. A new section 290.008 creates two tiers of juvenile offenders required to register for five and ten years. (Subsequent references to section 290 and related statutes are to the newly-enacted versions that become operative on January 1, 2021.)

Three tiers of registration requirements

Section 290, subdivision (c), lists the offenses that trigger registration requirements. The triggering offenses remain the same as in the current law. Subdivision (d) then categorizes those offenses into three tiers with three different periods of registration required.

In addition to the offenses listed in section 290, subdivision (c), section 290.006 authorizes a court to require registration for any conviction if it finds the defendant committed the offense as a result of sexual compulsion or for purposes of sexual gratification. In such a case, the court has discretion to order tier one, two, or three registration, with reasons stated on the record for placement in tiers two or three. (§ 290.006, subd. (b).) The statute includes five factors for the court to consider in determining the appropriate tier. (§ 290.006, subd. (c).)

  • Tier one offenders will be required to register for a minimum of 10 years. Tier one offenders are those convicted of offenses listed in section 290, subdivision (c) that are misdemeanors, or felonies not defined as serious or violent under sections 667.5, subdivision (c) or 1192.7, subdivision (c).
  • Tier two offenders, required to register for a minimum of 20 years, are those convicted of a triggering offense that qualifies as a serious or violent felony (as defined in §§ 667.5, subd. (c) & 1192.7, subd. (c)), or a violation of section 285, section 286, subdivision (g) or (h), section 288a, subdivision (g) or (h), section 289, subdivision (b), or section 647.6 if it is a second or subsequent conviction that was brought and tried separately.
  • Tier three offenders will continue to have to register for life as long as they reside in California. Specific offenses requiring lifetime registration are noted in section 290, subdivision (d)(3)(C), (F), (G), and (I) through (R). Tier three offenders also include those committed to a state mental hospital as a sexually violent predator (subd. (d)(3)(B)), or who, after previously being required to register based on a separate case, are convicted of triggering offense defined as violent in section 667.5, subdivision (c) (subd. (d)(3)(A)).
  • Also defined as tier three offenders requiring lifetime registration are habitual sex offenders (§ 667.71), mentally disordered sex offenders (§ 290.004), and a person whose “risk level on the static risk assessment instrument for sex offenders (SARATSO), pursuant to Section 290.04, is well above average risk at the time of release on the index sex offense into the community, as defined in the Coding Rules for that instrument.” (§ 290, subdivision (d)(3)(D), (E), & (H).)

Section 290, subdivision (e), states that the required registration periods in tier one or two start on the date of release from incarceration or commitment. The period is tolled during any subsequent incarcerations or commitments. The minimum registration period will be extended one year for each misdemeanor failure to register and three years for each felony failure to register. A subsequent conviction for an offense requiring registration will reset the clock when the offender is released.

Termination of registration requirement

New section 290.5, operative July 1, 2021, lays out the process to petition to terminate a registration requirement at the end of the statutory period. The filing of a petition triggers a requirement for relevant law enforcement agencies to report to the district attorney and trial court on whether the petitioner has met the requirements for termination under section 290, subdivision (e). The district attorney can request a hearing on the petition if the petitioner does not meet the requirements for termination “or if community safety would be significantly enhanced by the person’s continued registration.” (§ 290.5, subd. (a)(2).) If no hearing is requested and the petitioner meets the requirements to stop registering, the petition shall be granted. (§ 290.5, subd. (a)(2).) If the district attorney requests a hearing, he or she can present evidence “regarding whether community safety would be significantly enhanced by requiring continued registration.” (§ 290.5, subd. (a)(3).) The statute lays out factors for the court to consider in ruling on the petition. (§ 290.5, subd. (a)(3).) If termination is denied, the court sets a time period – between one and five years – after which the person can file a subsequent petition. (§ 290.5, subd. (a)(4).)

Early termination

New section 290.5, subdivision (b), provides possible early termination of the registration requirements for a small range of tier two and three offenders. A tier two offender is eligible for early termination of the registration requirement if he or she was under 21 at the time of the offense requiring registration, that offense is not listed in sections 667.5, subdivision (c) or 236.1, and there was no more than one victim who was at least 14 years old. Such a person can petition to stop registering after 10 years. (§ 290.5, subd. (b)(2).) People placed in tier three based solely on his or her risk level as defined by the static risk assessment instrument for sex offenders (under § 290, subdivision (d)(3)(D)), can petition for termination from the registry after 20 years. (§ 290.5, subd. (b)(3).)

Juvenile adjudications

Under the newly-enacted section 290.008, juveniles adjudicated a ward of the court based on the commission or attempted commission of certain sex offenses are required to register for either five or ten years. Tier one juvenile offenders, whose adjudications are for felonies not defined as serious (§ 1192.7(c)) or violent (§ 667.5(c)), are required to register for five years. (§ 290.008, subd. (d)(1).) If the adjudicated offense is serious or violent, the offender is in tier two and required to register for ten years. (§ 290.008, subd. (d)(2).) At the end of the mandated registration period, juvenile offenders may petition for removal from the sex offender registry. (§ 290.008, subd. (d)(3).)

Public disclosure

New sections 290.45 and 290.46 govern the public release of information in the sex offender registry “to allow members of the public to protect themselves and their children from sex offenders.” (§ 290.45, subd. (a)(2).) Section 290.46 codifies the requirements for maintaining sex offender registry information on an Internet Web site. Section 290.46, subdivision (d) provides for exclusion from the Internet Web site in certain limited circumstances. Both sections 290.45 and 290.46 provide protections against the misuse of the information made publicly available. (§§ 290.45, subd. (e), 290.46, subd. (h).)

Two amendments to statutes on enhancements potentially reduce sentences starting in 2018 – SB 620 and SB 180

As of January 1, 2018, two bills passed by the Legislature and signed by the Governor become effective. Each potentially reduces enhancements to some clients’ sentences.

  • SB 620: SB 620 ends the statutory prohibition on using Penal Code section 1385 to strike firearm enhancements under Penal Code sections 12022.5, subdivision (c), and 12022.53, subdivision (h).
  • SB 180: SB 180 eliminates 10 out the current 11 controlled substance statutory violations that under Health and Safety Code section 11370.2 can add a three-year enhancement to certain crimes involving controlled substances. The only remaining qualified enhancement is for prior convictions involving the use of minors as an agent of drug sales.

Likely Estrada retroactivity

ADI has concluded both of these amendments will likely be retroactive within the meaning of In re Estrada (1965) 63 Cal.2d 740 – that is, applicable to all cases not yet final for purpose of appellate review as of the effective date of the new laws. “Not yet final for purpose of appellate review” means the time for petitioning for certiorari in the United States Supreme Court has not yet expired (or, if such a petition is filed, certiorari has not yet been denied).

The statutory language itself asserts the amendments will apply to “resentencings,” confirming the intent for retroactive effect.

In a typical case, a petition for certiorari is due no more than 90 days after the California Supreme Court denied review. (Rules of the Supreme Court of the United States, rule 13, paragraph 1; see also rule 30, paragraph 1, on computation of time. A filing on January 2, 2018, would be deemed timely to meet a December 30 or 31, 2017, or January 1, 2018, deadline..) If review was granted or other complications arise, consult paragraph 3 of rule 13 of the Supreme Court Rules. (See also ADI Appellate Practice Manual, chapter 7, “The End Game: Decisions by Reviewing Courts and Processes After Decision,” §§ 7.75 et seq., 7.93 et seq., 7.113 et seq.)

Steps for Counsel

Raising the issue on appeal

Counsel are urged to follow the procedures outlined in Potentially Favorable Changes in the Law. Consultation with the staff attorney buddy can help counsel determine the appropriate steps.

Staff attorneys Art Martin and Lynelle Hee have prepared sample arguments for use with both amendments, based on samples produced by the First District Appellate Project, which has kindly given its permission to use these materials:

Although theoretically making these arguments before the new laws go into effect might be considered premature, the Fourth District and apparently most other appellate courts have been accepting supplemental briefs raising them. By the time most pending cases are decided, after all, the laws will be effective, and raising the issue earlier rather than later makes for a smoother, more efficient, and more economical process.

When Estrada is available

If the time for filing a certiorari petition will not have expired when the new laws become effective, Estrada retroactivity is available. (See rule 30, paragraph 1, of the Rules of the Supreme Court of the United States.) Nothing else need be done.

If the case will still be on appeal in the California courts on January 1, 2018, counsel may present the SB 620/SB 180 argument to the court having jurisdiction at the time of the filing (Court of Appeal or Supreme Court).

If the California courts no longer have appellate jurisdiction (for example, because a petition for review was denied), but the cert period will still be running at the first of 2018, an Estrada argument is available. But it must be presented by habeas corpus or other post-appeal mechanism, such as a motion to recall the remittitur. If the timing permits, counsel should anticipate the need for such a filing and prepare it while counsel is still on the case. Always consult ADI before filing a post-remittitur document. If it is too late for that, counsel may send the client a copy of the applicable sample argument, hopefully filled out with the appropriate details, and a copy of MC-275, the required Judicial Council form for pro per habeas petitions.

When certiorari petition is needed to protect Estrada availability

If the time for filing a cert petition has not expired yet but will expire before January 1, 2018, counsel should assess whether a cert petition is advisable to keep the case on direct appeal. Since such a petition requires the approval of the executive director, counsel should consult with the assigned staff attorney about seeking that approval.

If the appellate process is already over but there is still time to file a certiorari petition, counsel may send the client a sample certiorari petition, the applicable 620/180 sample argument, and a copy of Guide for Prospective Indigent Petitioners for Writs of Certiorari.

Cases now or recently in California Supreme Court

Counsel should also pay attention to their present and recently-resolved review-granted cases in the California Supreme Court. There are some lead cases and dozens of cases on grant and hold, mostly on Proposition 47 issues. Most of those cases will not be final for certiorari purposes by January 1, 2018, and so are entitled to Estrada retroactivity.

A problem for grant and hold cases is remedy – if the court simply dismisses review (as often happens, if the Court of Appeal opinion was in line with the Supreme Court decision), the appeal is over, and the client is relegated to habeas corpus or another post-appeal remedy. Counsel may write to the Supreme Court and ask for the opportunity to brief the statutory change issue, either in the Supreme Court or Court of Appeal, in the hope the appeal will continue. Or counsel may draft a habeas corpus petition during the hold period, to be filed when the appeal is over. Consult with your buddy on that.

Cases already final in California but still within cert period

If one of your cases is post-remittitur but recent enough to qualify for Estrada retroactivity, you may send the client a copy of the applicable sample argument, hopefully filled out with the appropriate details, and a copy of MC-275, the required Judicial Council form for pro per habeas petitions. We cannot realistically suggest counsel would be compensated for filing a habeas corpus petition themselves. Always consult ADI before filing a post-remittitur document.

Proposition 47 reduction of enumerated felonies to misdemeanors

In the November 4, 2014, election the voters approved Proposition 47, which reduces various felonies or wobblers to misdemeanors and provides procedures for resentencing or re-designating priors as misdemeanors.

ADI’s "Proposition 47 Practice Article" examines the provisions as they apply to our cases. In summary, the article discusses:

Reduced offenses

The offenses changed from felonies or wobblers to misdemeanors include:

  • New crime of shoplifting no more than $950 from commercial establishment during business hours.
  • Forgery of no more than $950.
  • Insufficient funds check of no more than $950.
  • Petty theft of no more than $950.
  • Receiving stolen property of no more than $950.
  • Simple possession of a narcotic, marijuana, or non-narcotic controlled substance.

The “priors” required for petty theft with priors have been drastically redefined.

An exception to the reduction applies in each enumerated statute if the person has prior convictions colloquially called “super strikes” – namely, one of those enumerated in Penal Code section 667, subdivision (e)(2)(C)(iv) or a registerable offense under section 290, subdivision (c).

The text of the new law and the referenced statutes is provided in the “Proposition 47 Practice Article.”

Procedures for those already sentenced

For those currently serving a sentence for one of the enumerated felonies, Proposition 47 creates a resentencing procedure – new Penal Code section 1170.18. Resentencing is subject to an exception for those whose release would pose an unreasonable risk to public safety, but that concept is defined very narrowly.

For those who have already served their sentences, subdivisions (f)-(h) of section 1170.18 provide for an application to reduce the offense to a misdemeanor.

Assistance to clients

ADI has prepared a Proposition 47 Handout for clients and a sample Penal Code section 1170.18 petition for resentencing or reduction from felony to misdemeanor. These can be distributed to clients. They’re especially important if the client is no longer represented.

Guidance to counsel

For cases not final when the initiative passed, the practice article suggests raising a claim under In re Estrada (1965) 63 Cal.2d 740, which presumes that the Legislature intended a reduction in punishment for a given crime or group of crimes to apply retroactively to non-final cases. This issue as applied to Proposition 36 is before the California Supreme Court in People v. Conley, S211275.

Arguably, the trial court has concurrent jurisdiction to entertain a section 1170.18 petition while the appeal is pending. The “Proposition 47 Practice Article” examines the relative advantages and disadvantages of Estrada on appeal versus a 1170.18 petition.

The article discusses some selected legal issues raised by the initiative. It also explores the interplay between Proposition 36 and Proposition 47 and explains how the definition of dangerousness in section 1170.18(c) can be applied in proceedings involving Proposition 36.


Besides the “Proposition 47 Practice Article” and the materials for clients, ADI has designated two staff attorneys as the point persons for a Proposition 47 “Hot Line”:

Howard Cohen, 619-696-0284, ext. 24, hcc@adi-sandiego.com

Cindi Mishkin, 619-696-0284, ext. 55, cbm@adi-sandiego.com

The practice article lists some resources already online when it was published. Counsel may also consult:

ADI will add to this list as resources become available.


Proposition 36 modifications to Three Strikes law

In the last election the voters approved Proposition 36, entitled the Three Strikes Reform Act of 2012. It became effective November 7, 2012.

Sentence for third-strike non-violent, non-serious felony: Proposition 36 amends Penal Code sections 667 and 1170.12 to replace the 25-life sentence for a third strike with a second-strike doubled sentence if the current offense is not a serious or violent felony – with these conditions:

Current crime: For a defendant to qualify for a Proposition 36 lower sentence, the current crime:

  • must not be a serious one under Penal Code section 1192.7, subdivision (c) or a violent one under section 667.5, subdivision (c).
  • must not be enhanced by Health and Safety Code section 11370.4 or 11379.8 (large amount of drugs).
  • must not be unlawful intercourse under Penal Code section 261.5 (defendant 21 or older with a minor under age 16) or spousal rape under section 262.
  • must not require mandatory sex offender registration under Penal Code section 290, subdivision (c) – except that registration required for violations of Penal Code section sections 266, 285, 286, subdivision (b)(1), 286, subdivision (e), 288a, subdivision (b)(1), 288, subdivision (e), 311.11, and 314 is not disqualifying. Crimes that merely may lead to discretionary registration are not disqualifying.
  • must not be a crime in which the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.

Prior strikes: To qualify for a Proposition 36 lower sentence, the prior convictions ("strikes"):

  • must not include a "sexually violent offense" listed in Welfare and Institutions Code section 6600.
  • must not include oral copulation, sodomy, or sexual penetration with a child who was then under 14 and more than 10 years younger than the defendant (Pen. Code, §§ 288a, 286, 289).
  • must not include a lewd or lascivious act involving a child under 14 (Pen. Code, § 288).
  • must not include murder, attempted murder, gross vehicular manslaughter while intoxicated or attempted gross vehicular manslaughter while intoxicated (Pen. Code, §§ 187-191.5) or solicitation to commit murder (§ 653(f)).
  • must not include assault with a machine gun on a police officer or firefighter (Pen. Code, § 245, subd. (d)(3)).
  • must not include possession of a weapon of mass destruction (Pen. Code, § 11418).
  • must not include any serious or violent felony punishable by life imprisonment or death.

Query: Is Proposition 36 resentencing available to defendants who pled guilty under a plea bargain? Couzens and Bigelow (PDF) discuss this question on pages 26-27.

New remedy for those already sentenced: Proposition 36 adds new Penal Code section 1170.126, which provides:

Petition for resentencing: Defendants already sentenced when the initiative went into effect may petition the trial court for resentencing under the new law if their third felony was not violent or serious and they meet the conditions set out above.

Mandatory resentencing, unless . . . : If a petitioning defendant is eligible under the new law, the trial court must resentence unless it finds, from the defendant's background and record in prison, that release would create an unreasonable risk of danger to the public safety. Because of this limitation, other remedies may be more favorable to a given client. Subdivision (k) provides section 1170.126 is not intended to abrogate or diminish other remedies.

Time limit: Inmates have two years to petition from November 7, 2012, but may show good cause for a later petition. As always, it is inadvisable to rely on a discretionary excuse for an untimely filing, unless circumstances leave no choice.


Articles posted with permission of the authors.

Potential Steps for Counsel

The steps to be taken depend on the stage of the case when (a) Proposition 36 passed and (b) relief is sought.

Preliminaries: Before commencing with the particulars, ADI renews the customary warnings ( Potentially Favorable Changes in the Law (PDF), Part One, section I):

  • Adverse consequences: Always analyze whether any potential adverse consequences could come from pursuing a remedy. If seeking Proposition 36 relief could make the defendant even worse off in some way, counsel the client and ask for a decision whether to go forward. (See ADI Manual, § 4.91 et seq.)
  • Time-sensitive cases: Always consider whether the case is time-sensitive and adjust the strategy accordingly. If the defendant would be entitled to immediate release on resentencing, for example, a speedier remedy than appeal could well be called for. (See ADI Manual, § 1.30 et seq.)
  • Contact with client and trial counsel: Appellate counsel should contact trial counsel to determine whether he or she plans to take any action and to ensure that the attorneys do not work at cross-purposes. Appellate counsel should also advise the client what is going on, both to keep the client informed and to guard against the possibility the client might attempt to do something without counsel's approval.

Estrada: In re Estrada (1965) 63 Cal.2d 740, 748, creates a presumption of retroactivity to non-final cases when a statute is amended to reduce the punishment for a given crime or group of crimes.

  • Applicability to Proposition 36: Estrada should be applicable to Proposition 36, if the defendant meets its conditions.
    • Although People v. Brown (2012) 54 Cal.4th 314 limited Estrada to situations in which the new law lowers the sentence for a given offense or groups of offenses, that is exactly what Proposition 36 does. Unlike the credits law in Brown, Proposition 36 reflects the electorate's explicit determination that a reduced sentence is adequate to protect society.
    • The Estrada presumption applies to voter-enacted, as well as legislative, amendments. (E.g., People v. Trippet (1997) 56 Cal.App.4th 1532, cited with approval in People v. Wright (2006) 40 Cal.4th 81, 93-95.)
    • Unlike the initiative in People v. Floyd (2003) 31 Cal.4th 179, which had an express "prospective application" provision, Proposition 36 does not negate retroactive application and indeed manifests an affirmative intent for full retroactivity in Penal Code section 1170.126, which allows defendants in even long-final cases to petition the court for resentencing.
  • Finality for Estrada purposes: By definition, cases now on appeal are not "final" for purposes of Estrada. Counsel should make every effort to raise Estrada at the earliest possible time, no matter what the stage of the appeal. For other situations, although the nuances of finality for Estrada have not definitively been resolved, these principles likely apply:
    • If the defendant did not appeal, the case is final when the time for appealing expires. (See United States. v. Plascencia (5th Cir. 2008) 537 F.3d 385 [when federal prisoner fails to file an effective notice of appeal, the prisoner's conviction becomes "final," for AEDPA purposes, upon expiration of period for filing direct appeal, and prisoner not entitled to 90-day period for certiorari].)
    • If the defendant appealed but did not file a petition for review, it becomes final when the time for the California Supreme Court to grant review expires. (See Gonzalez v. Thaler (2012) 565 U.S. ___ [132 S.Ct. 641] [90-day certiorari time is not included for AEDPA purposes if defendant did not petition for review to highest state court]; Roberts v. Cockrell (5th Cir. 2011) 319 F.3d 690, 694 [if defendant stops appeal process before going to court of last resort, conviction becomes final under AEDPA when time for seeking further direct review in state courts expires]; see also Cal. Rules of Court, rule 8.512.)
    • If the defendant appealed and petitioned unsuccessfully for review, a case is final when certiorari in the U.S. Supreme Court is denied or the time for seeking it (90 days after review in the California Supreme Court is denied) expires. (People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5; see also Beard v. Banks (2004) 542 U.S. 406, 411; see Nix v. Secretary for the Department of Corrections (11th Cir. 2004) 393 F.3d 1235, 1237 [for purposes of triggering AEDPA statute of limitations, certiorari time is included even if defendant did not raise a federal issue in state court].)

      Note: California does not have to apply the federal rule or AEDPA cases in defining its own rules of statutory interpretation and retroactivity, but in this area state principles tend to be congruent with federal ones. (See Bell v. Maryland (1964) 378 U.S. 226, 230 [referring to "universal common-law rule" of applying ameliorative change in punishment or outright decriminalization to any "proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it"].)

  • Estrada on appeal: For qualifying cases in the California courts, counsel may file a brief or petition arguing the new law applies to all cases not yet final under the principles of Estrada. (People v. Babylon (1985) 39 Cal.3d 719, 722 ["defendant is entitled to the benefit of a change in the law during the pendency of his appeal"; reversing convictions because amendment made defendants" acts non-criminal].) ADI's article on Potentially Favorable Changes in the Law (PDF) (Part One, section II) outlines procedures at the various stages of appeal.
  • Estrada on habeas corpus: If a case was not final when Proposition 36 was passed but the remittitur has since issued, the defendant is still entitled to Estrada relief. A habeas corpus petition may be filed. (In re Pine (1977) 66 Cal.App.3d 593, 596.) Estrada itself was a habeas case.

Section 1170.126 petition: New Penal Code section 1170.126 allows a petition for resentencing within two years for persons already sentenced when the initiative passed.

  • Pending cases: If the court rejects the Estrada argument or the remedy is inadequate for some reason, an additional avenue for pending (pre-remittitur) cases would be a petition under new section 1170.126. A PDF sample is here. That petition should not take the place of an Estrada issue on appeal, for reasons set out below under "Estrada versus section 1170.126," but it could be additional (see section below on "Pursuing both at the same time"). It may be faster for those clients who would be entitled to release immediately, or at least before an appeal would be over. Such a petition should be compensable if (a) appellate counsel determines trial counsel cannot or will not be doing it and (b) the work is done while the appeal is still going on.
  • Closed cases: For cases completely final (post-remittitur and time to petition for certiorari has expired) on or before November 6, 2012, a petition under 1170.126 is needed. ADI cannot offer compensation in final cases, but attorneys might consider voluntarily alerting their eligible clients or their trial counsel to its availability. ADI has a Proposition 36 PDF handout and a sample petition (above) for clients.

Section 1170.126 proceedings:

  • Timing: A petition can be filed during the two-year limitations period. If the client would be entitled to virtually immediate release, that need would of course trump other considerations. If immediacy is not a need, however, counsel should investigate whether some delay might be advisable. If the defendant has had recent disciplinary problems or needs time to build a more persuasive case for rehabilitation, it might be helpful to advise the client to work on developing a good record before petitioning. It is unclear when or whether successive petitions would be allowed.
  • Procedural rights: Section 1170.126 does not specify how the resentencing should take place.
    • Counsel: Quite arguably, once a defendant establishes prima facie eligibility (no disqualifying current or prior offenses) under section 1170.126, counsel should be appointed for any adjudicative issues, including dangerousness and, if a second-strike sentence is to be imposed, traditional sentencing choices such as upper, middle, or lower terms. (See Mempa v. Rhay (1967) 389 U.S. 128, 134-137 [sentencing is critical phase of prosecution to which right to counsel attaches]; People v. Clark (1993) 5 Cal.4th 750, 780 [if habeas petition attacking judgment states prima facie case, appointment of counsel is demanded by due process concerns]; People v. Shipman (1965) 62 Cal.2d 226, 231 [right to counsel at coram nobis proceeding when defendant has stated prima facie case for relief].) Couzens and Bigelow (PDF) so conclude (pp. 29, 30).
    • Victim's presence: Section 1170.126, subdivision (m), incorporates Article I, section (b), paragraph (7) of the California Constitution (right of victim to appear). (Marsy's Law.)
    • Query: Do the principles of Apprendi-Blakely apply to a finding of dangerousness? The structure of section 1170.126, subdivision (f) – the court "shall" impose a two-strike sentence "unless" it finds dangerousness – is arguably analogous to the mandatory presumption of the middle term in the former DSL struck down in Cunningham.
  • Defendant's appeal: The ruling on a section 1170.126 petition is appealable under Penal Code section 1237, subdivision (b), as an order after judgment affecting the substantial rights of the defendant. (Teal v. Superior Court (2014) 60 Cal.4th 595 [denial of resentencing under § 1170.126 on eligibility grounds is appealable].)
  • People's appeal: Counsel may eventually face the question whether People have a right to appeal after resentencing to contest the trial court's finding of no dangerousness or the new sentence. The governing provision of Penal Code section 1238 might be subdivision (a)(5) (order after judgment), or (a)(6) (order reducing punishment), or (a)(10) (unlawful sentence). Arguably there is no such right, unless the new sentence is outright "unlawful":
    • Subdivisions (a)(5) and (a)(6) apply to orders, whereas resentencing is a new judgment, not just an "order." (See People v. Rivera (1984) 157 Cal.App.3d 494, 497-498 [People cannot appeal lower sentence after § 1170, subd. (d) recall; resentence is not "order," but rather new judgment].)
    • Subdivision (a)(10) allows a People's appeal only from those sentences that are "unlawful" and specifically excepts such decisions as choice of upper-middle-lower term and consecutive versus concurrent. It defines "unlawful" as unauthorized by law or based on unlawful order striking or modifying an enhancement or prior.

Estrada versus section 1170.126: Subdivision (k) of section 1170.126 expressly provides that the petition under that section does not abrogate or diminish other rights the defendant may have.

  • Advantages of Estrada: Since Estrada has no dangerousness exception and gives a right to resentencing under the new law, that remedy is often more favorable to defendants than the one under section 1170.126. ADI's article on The Battle Is Joined: Estrada v. 1170.126 (PDF) lays out the arguments for why Estrada applies to cases not final on November 7, 2012.
  • Advantages of section 1170.126: Estrada does not apply to cases final before November 7, 2012, and therefore section 1170.126 may be the only option for those defendants. Further, for a client entitled to virtually immediate release if given a two-strike sentence, a section 1170.126 petition could well be faster than appeal.
  • Pursuing both at the same time: Estrada on appeal and section 1170.126 are not mutually exclusive remedies; one may seek both simultaneously, ADI thinks. Quite arguably the law gives a trial court jurisdiction to entertain such a petition during appeal, much as Penal Code section 1170, subdivision (d) allows resentencing despite a pending appeal. (Portillo v. Superior Court (1992) 10 Cal.App.4th 1829; see also People v. Meloney (2003) 30 Cal.4th 1145, 1153, fn. 5.) Counsel could argue for Estrada relief on appeal, for example, and at the same time seek section 1170.126 relief, if the client needs a speedier remedy. (If the section 1170.126 petition is successful, counsel should advise the appellate court. The Estrada issue on appeal may or may not be moot, depending on the People's position below and the possibility they might appeal – assuming they have the right to appeal.)


Welfare and Institutions Code section 786 modifications to law on sealing of juvenile records

In January 2015 the Legislature streamlined and expanded the process of sealing juvenile records after the individual’s sentence is served. The new statute, Welfare and Institutions Code in section 786, supplements the former law, section 781, which has a long waiting period or age requirement and other restrictive conditions. Section 786 mandates dismissal of the petition and sealing of related records in the custody of the juvenile court on the satisfactory completion of probation or informal supervision.

Corrective legislation to close some gaps in section 786 has been enacted, effective January 1, 2016. The amending bills include Assembly Bill 666, which has broad language to address the glitches in the original version, and Assembly Bill 989, which ensures access to the sealed records for data reporting and future placement considerations.

ADI has prepared a practice article, Sealing Past Juvenile Delinquency Records, describing the provisions of both the original and amended section 786. The Judicial Branch of California website also includes a helpful discussion entitled Sealing Juvenile Records.


Submit issue involving fines or fees to superior court before raising on appeal (new Penal Code section 1237.2)

Penal Code section 1237.2, effective January 1, 2016, requires that an issue involving fines or fees or other monetary assessments must be submitted to the superior court that rendered the judgment before it may be raised as the sole issue on appeal, unless it was already raised before or at the time of sentencing. Going to the trial court is appropriate but not necessary if other issues are being raised on appeal.

Section 1237.2, like a concurrent amendment to section 1237.1 on credits modifications, allows such a request to the superior court to be made informally, rather than as a formal motion. (Abrogating People v. Clavel (2002) 103 Cal.App.4th 516, 518-519.) These provisions were enacted in A.B. 249 of the 2015-2016 Legislative session.

Both sections now provide: “The trial court retains jurisdiction after a notice of appeal has been filed to correct any error [in their respective areas] upon the defendant’s request for correction.” This codifies existing law.

A more detailed analysis by FDAP executive director Jonathan Soglin is on that project’s website.

New forms for both kinds of applications are on the ADI FORMS AND SAMPLES web page under the “Credits Modification” and “Fines or Fees Modification” bullets.

Tracking pending legislation

One may search for pending California legislation and sign up for e-mail notifications of developments for any given bill here .


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