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AB 200 update renumbers select resentencing statutes and continues implementing the planned closure of the Department of Juvenile Justice

Assembly Bill No. 200 is a budget bill that consolidates four recall and resentencing statutes in one article and makes changes to the Welfare and Institutions Code to continue changes brought about by the shutdown of the Department of Juvenile Justice.

Changes to Penal Code section numbering include:


§ 1170.03 (created by AB 1540, which moved former section 1170, subdivision (d), to this location) is now § 1172.1

§ 1170.95 (created by SB 1437) is now § 1172.6

§ 1171 (created by SB 483) is now § 1172.7

§ 1171.1 (created by SB 483) is now § 1172.75

This bill also amended Penal Code section 1385 but retained the language of subdivision (c)(2)(C), requiring dismissal of an enhancement where “[t]he application of an enhancement could result in a sentence of over 20 years.” The fact that the Legislature could have amended this subdivision but did not implies this language is not the result of a drafting error.

These changes were created by a budget bill and are therefore effective immediately, i.e., June 30, 2022. (§ 47.) See AB 200 for full text.

Changes to the Welfare and Institutions Code section include, inter alia:

Modification of section 875, subdivision (c)(1)(B) [aggregate maximum term of confinement] and adding sections 1732.9 [housing persons 18 years old or older] and 1732.10 [state hospital referrals].


AB 199 amends rules affecting a defendant’s right to be present, authorizing some criminal remote proceedings

Assembly Bill No. 199 (2021-2022 Reg. Sess.) promulgated rules affecting a defendant’s right to be present “physically” and “remotely” rather than the prior “personally” present rules. (Stats. 2022, ch. 57, §§ 14-15.) The new law authorizes some criminal remote proceedings; it still requires the accused’s consent. And the court maintains the right to require a defendant’s physical presence in a felony proceeding. Among the key provisions, the bill amended Penal Code section 977 to specify the following:

· Where a felony is charged, the defendant shall be physically present for the arraignment, plea, preliminary hearing, trial proceedings where evidence is taken before the trier of fact, and sentencing, unless the defendant waives physical or remote presence (§ 977, subd. (b));
· Permits the court to require the defendant be physically or remotely present during a proceeding (§ 977, subd. (b)(3));

· Presents an amended written waiver form (§ 977, subd. (b)(4));

· Permits the use of remote technology, with some exceptions, where the defendant waives physical presence (§ 977, subd. (c));

· Generally requires the defendant’s physical presence during felony trial and sentencing, though not post-conviction (§ 977, subd. (c)(1)(D)-(E));

· Permits witnesses to appear remotely for felony proceedings except trial (§ 977, subd. (c)(1)(F)); § 977.3);

· Permits oral or written waiver by a defendant who does not want to be physically or remotely present for noncritical portions of a trial (§ 977, subd. (c)(2)(A));

· Permits the prosecution and defense counsel to appear remotely under some circumstances (§ 977, subds. (e), (f));

· Requires the court reporter to be physically present in a courtroom (§ 977, subd. (g)(2));

· Requires the court to make and state findings concerning waiver of presence on the record (§ 977, subd. (h)).

Other existing provisions under section 977 concerning a defendant’s right to be present remain intact. Related rules under other sections of the code were amended to conform with the new laws.

The bill also created section 977.3, which permits a witness to testify remotely under some circumstances; and reduced the civil assessment for failure to appear to no more than $100 (Pen. Code, § 1241.1, subd. (a)) and rendered civil assessments imposed prior to July 1, 2022, unenforceable and uncollectible (§ 1465.9, subd. (c)).

These changes were created by a budget bill and are therefore effective immediately, i.e., June 30, 2022. (§ 25.) See Assembly Bill No. 199 for full text.

 

SB 317 extends conduct credits to those confined in a state hospital or other mental health treatment facility pending a return to mental competency

On October 6, 2021, Governor Gavin Newsom signed Senate Bill No. 317, effective January 1, 2022, extending custody credits under Penal Code section 4019 to include persons committed to a state hospital or other mental health treatment facility while awaiting a return to competency. The bill also makes changes to the current trial competency scheme by repealing and replacing Penal Code section 1370.01.

SB 775 modifies Penal Code section 1170.95 by, inter alia, expanding its application to attempted murder and manslaughter, codifying the holding of People v. Lewis (2021) 11 Cal.5th 952, outlining what evidence is admissible at the (d)(3) hearing, and reaffirming the proper burden of proof at the (d)(3) hearing

On October 5, 2021, Governor Gavin Newsom signed Senate Bill No. 775, effective January 1, 2022, which amends Penal Code section 1170.95. The changes are significant. They are:

  • Amendment to subdivision (a) expands eligibility to file a petition to vacate convictions to persons who were convicted of murder based on a theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural probable consequences doctrine or who were convicted of manslaughter.
  • Addition of subdivision (b)(3) clarifies that after receiving a petition which is facially sufficient, or where any missing information could readily be ascertained, the court must appoint counsel if petitioner so requests. This subdivision codifies a holding from People v. Lewis (2021) 11 Cal.5th 952, 963.
  • Amendment to subdivision (c) clarifies that after the parties submit briefing, the court must hold a hearing to determine whether petitioner has established a prima facie case for relief; and if the court declines to find a prima facie case and issue an order to show cause, it must provide a statement of reasons for its decision
  • Amendment to subdivision (d)(3) clarifies two important points: the government’s burden and the evidence which can be admitted at the hearing to determine whether petitioner is entitled to relief.
    • With respect to the burden, it is the government that must show, beyond a reasonable doubt, that petitioner is guilty of murder or attempted murder under California law as amended by Senate Bill No. 1437, to defeat relief. The new statute specifically states: “A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petition is ineligible for resentencing.”
    • With respect to evidence that can be admitted at the hearing, the amendment removed language permitting the parties to rely on the record of conviction. Instead, the prior appellate opinion can be considered for the procedural history of the case. The amendment explicitly allows admission of evidence as governed by the Evidence Code. And, it clarifies that evidence admitted at a prior hearing or trial can be admitted during the (d)(3) hearing, only if that evidence is admissible under current law. Notably, hearsay evidence admitted at a preliminary hearing under Penal Code section 872, subdivision (b) (see Whitman v. Superior Court (1991) 54 Cal.3d 1063) must be excluded unless it is admissible pursuant to another exception to the hearsay rule.
  • Amendment to subdivision (e) directs that if petitioner is entitled to relief, and a target offense was not charged but rather only murder or attempted murder were generically charged, the conviction shall be redesignated as the target offense or underlying felony for resentencing purposes.
  • Addition of subdivision (g) allows defendant to pursue relief based on the changes to Penal Code sections 188 and 189, in the direct appeal. This new subdivision explicitly overrules People v. Gentile (2020) 10 Cal.5th 830, 851-852.
  • Amendment to redesignated subdivision (h) sets the maximum permissible parole period after resentencing to be two years instead of three years.

See Potentially Favorable Changes in the Law, which discusses procedures at each stage of an appeal and basic principles of retroactivity.

AB 177 repeals more fees, including collection fees, and makes the unpaid balance uncollectible

On September 23, 2021, Governor Gavin Newsom signed Assembly Bill No. 177, effective January 1, 2022, which, much like last year’s Assembly Bill No. 1869, repeals the authority to collect certain amounts imposed during criminal proceedings and makes the unpaid balance of many imposed costs unenforceable and uncollectible. The bill also requires that the portion of any judgment imposing these costs be vacated. Administrative fees for collection efforts are stricken. Various Penal Code sections, including sections 1202.4, 1203.1, 1203.1ab, 1203.4a, 1205, and 1465.9, among others, and some Vehicle Code sections have been amended to conform to this bill by removing references to fees and collections. [Click here for helpful chart.] As with other recently enacted legislation, the legislative findings include language referring to disproportionate burdens due to racial discrimination and indigence.

AB 1228 requires a court to release a person on their own recognizance pending probation revocation hearing, absent clear and convincing evidence that conditions or bail are necessary

On October 5, 2021, Governor Gavin Newsom signed Assembly Bill No. 1228, effective January 1, 2022, which amends the court’s authority over a person arrested for violation of probation. The new law requires the court to consider releasing the person pending a revocation hearing in accordance with new Penal Code section 1203.25. Section 1203.25, subdivision (a), requires release of such person “on their own recognizance unless the court finds, by clear and convincing evidence, that the particular circumstances of the case require the imposition of an order to provide reasonable protection to the public and reasonable assurance of the person’s future appearance in court.” The new provision requires the court to select the least restrictive conditions of release if conditions are deemed necessary, such as telephonic reporting to the probation department, protective orders, GPS monitoring, or an alcohol use detection device. Costs of release conditions shall not be assessed against the person. As with conditions, cash bail shall not be imposed unless the court finds clear and convincing evidence that other conditions are inadequate to protect the public and assure the person returns for the revocation hearing. Bail must be set at a level the person can reasonably afford. Bail bonds and property bonds are not permitted. For misdemeanor conduct that may violate probation, the court must release the probationer unless the person fails to comply with a court order, such as an order to appear. If the basis for the probation violation results in a new charge, the court’s authority to hold or release is not limited by this statute.

List and chart of select new laws effective January 1, 2022, that impact many criminal, some delinquency and some dependency cases

The Legislature was busy last year, and the Governor approved many new laws by the end of the legislative session. Please find a helpful, descriptive list and chart of select new laws which may impact our clients. Many of the new laws affect criminal sentencing. Judge Couzens has written a new article, posted here with his permission, discussing these changes: Selected Changes to California Sentencing Laws Effective 2022. And the Judicial Council of California has prepared a comprehensive summary of court-related legislation: Judicial Council of California Summary of Court-Related Legislation.

SB 567, AB 124, and AB 1540 amend sentencing rules, provide more lenience to victims of human trafficking, intimate partner violence, or sexual violence who have been arrested or convicted, and specify a procedure following a court's receipt of a recommendation to recall and resentence a defendant

On October 8, 2021, Governor Gavin Newsom signed three bills, effective January 1, 2022, that each sought, inter alia, to amend Penal Code section 1170. Bills are chaptered sequentially by the order which they were signed. So if bills are interdependent as they are with this trio, and the bill which prevails is the one which is last-enacted, review the chapter number to tell which bill was signed before or after others.

Senate Bill No. 567 amends Penal Code section 1170 to give the court discretion to impose sentence not to exceed the middle term unless circumstances in aggravation were stipulated to by the defendant or found true beyond a reasonable doubt by the fact-finder. (Pen. Code, § 1170, subds. (b)-(c).) Upon request of the defendant, trial on aggravating circumstances must be bifurcated, with some exceptions. (Id. at subd. (b)(2).) In addition, the court is permitted to consider prior convictions from a certified record of conviction without submitting the prior convictions to a jury. (Id. at subd. (b)(3).) Reasons for imposing the selected term must be stated in the record. (Id. at subd. (b)(5).) A court is now mandated to impose the lower term if trauma, youth, violence or trafficking victimization, as specified, was a contributory factor to commission of the offense, unless the court finds aggravating circumstances outweigh mitigating and imposition of the lower term would be contrary to the interests of justice. (Id. at subd. (b)(6).) Former section 1170, subdivision (d), is stricken and recodified as section 1170.03. (See Assembly Bill No. 1540, post.) Because SB 567 passed after Assembly Bill Nos. 124 and 1540, the current version of section 1170 is contained in section 1.3 of SB 567; sections 1, 1.1, and 1.2 of SB 567 are inoperative. (SB 567, § 3.)

Assembly Bill No. 124 provides a petition process for persons to request an arrest or conviction for nonviolent offenses be vacated if the arrest or conviction was a direct result of the person being a victim of intimate partner violence or sexual violence. (Pen. Code, § 236.15.)The new law also changes prior law to now permit a coercion defense to be used in the case of a serious felony or charge of human trafficking, where coercion was a direct result of the defendant being a human trafficking victim at the time of the offense and the defendant had a reasonable fear of harm. (Pen. Code, § 236.23, subd. (a), as amended.) Coercion is also made a permissible defense for victims of intimate partner violence or sexual violence. (Pen. Code, § 236.24.) The petition process is available to juveniles found to be wards of the court under Welfare and Institutions Code section 602. (Pen. Code, § 236.15, subd. (j).) Petitions for relief under section 236.15 shall not disclose the petitioner’s full name. (Id. at subd. (q).) In addition, the new bill requires a prosecutor engaged in plea negotiations to consider as a mitigating circumstance the defendant’s trauma, youth, or victimization of intimate partner violence or human trafficking. (Pen. Code, § 1016.7.) Sections 5.1, 5.2, and 5.3 of this bill did not become operative since SB 567 was the last of the three bills to pass. (AB 124, § 6.)

Assembly Bill No. 1540 sets out more detailed procedures for hearings on recall of sentence under former Penal Code section 1170, subdivision (d), which has been moved to newly created section 1170.03. Section 1170.03 specifies that a court receiving a commendation for recall shall apply any changes in law that reduce sentences or provide for judicial discretion in order to eliminate sentencing disparities. (Subd. (a)(2).) The new procedures also permit the court two options in acting on the recommendation, regardless of whether the conviction was by trial or plea: reduce the petitioner’s term by modifying the sentence; or vacate the conviction and impose judgment on a necessarily included lesser included or lesser related offense, whether or not charged or with the prosecutor’s and defendant’s concurrence, and resentence to a lower term. (Subd. (a)(3).) A court may consider postconviction factors including disciplinary and rehabilitation records, evidence reflecting whether age, time served, or diminished physical capacity have reduced the defendant’s risk of future violence, and evidence of changed circumstances indicating continued incarceration is no longer in the interests of justice. (Subd. (a)(4).) The court shall also consider if the defendant has experienced childhood trauma, violence, or human trafficking, was a youth at the time of the offense, and whether those were contributory factors to commission of the offense. (Ibid.) Reasons for granting or denying recall and resentencing must be stated on the record. (Subd. (a)(6).) Resentencing cannot be denied without a hearing, and remote appearance by a defendant at the hearing is sufficient unless the defense requests physical presence in court. (Subd. (a)(8).) The new statute also requires notice be given to the defendant, counsel appointed, and a status conference set within 30 days after the court receives the recall recommendation, and creates a presumption favoring recall and resentencing, which can be overcome only upon a finding the defendant is an unreasonable danger to public safety. (Subd. (b).) Findings of the Legislature, relating to an aging prison population, costs, the inefficacy of lengthy prison sentences, decreasing crime rates, evolving public views on incarceration, and the need for courts to give more weight to recall recommendations, are codified in § 1 of AB 1540. Sections 2.1, 2.2, and 2.3, and 3 of this bill did not become operative. (AB 1540, §§ 5, 6.)

SB 483 declares certain enhancements legally invalid including prior prison terms and some drug enhancements

On October 8, 2021, Governor Gavin Newsom signed Senate Bill No. 483, effective January 1, 2022, which makes retroactive changes to the law brought about by SB 136 and SB 180 to all persons currently serving a term of incarceration for the repealed sentence enhancements. The declared purpose of the bill is to ensure equal justice and address systemic racial bias in sentencing, and the Legislature’s intent is that any changes of sentence brought about by this bill shall not be a basis for the prosecution or court to rescind a plea agreement. The bill adds sections 1171 and 1171.1 to the Penal Code. Section 1171 makes legally invalid any sentence enhancement pursuant to Health and Safety Code section 11370.2 (prior drug conviction enhancement) that was imposed prior to January 1, 2018, while section 1171.1 invalidates section 667.5, subdivision (b), enhancements (prior prison term enhancement) imposed prior to January 1, 2020. Both new statutes require the CDCR to give each sentencing court information on persons whose sentences include the enhancement. The court must then recall and resentence those defendants per the schedule included in the new statutes. The new sentence must be lower than the original unless clear and convincing evidence demonstrates a lower sentence would endanger public safety. In addition, the court is permitted to consider postconviction factors in determining whether the defendant’s risk for future violence has decreased.

SB 81 amends Penal Code section 1385 to require dismissal of enhancements if it is in the furtherance of justice

On October 8, 2021, Governor Gavin Newsom signed Senate Bill No. 81, effective January 1, 2022, which amends Penal Code section 1385 by adding a new subdivision. The bill’s key provision requires a court to dismiss an enhancement if it is in the furtherance of justice to do so, unless any initiative statute prohibits such action. (Prohibition by initiative statue, for example, occurs (1) in Proposition 83 pertaining to sex offenses, firearms, and causing great bodily injury during the commission of specified crimes, which passed in 2006; and (2) in Proposition 115 pertaining to special circumstances for murder, which passed in 1990.) In its exercise of discretion, the court must give great weight to evidence offered by the defendant to prove any of nine non-exclusive mitigating circumstances, set out later in the statute. Proof of mitigating circumstances “weighs greatly” in favor of dismissing the enhancement unless the court finds dismissal would endanger public safety, which is defined in the statute. Examples of mitigating circumstances are where: the enhancement would result in discriminatory racial impact; multiple enhancements are alleged in a single case, in which case all but one enhancement must be dismissed; the enhancement could result in a sentence exceeding 20 years, in which case the enhancement must be dismissed; and the enhancement is based on a prior conviction that is over five years old. The statute allows a court to exercise its new discretion before, during, or after trial or entry of plea as well as at sentencing. The new subdivision applies to all sentencings occurring after the act’s effective date.

AB 333 redefines Penal Code section 186.22's "pattern of criminal gang activity" and requires separate trials on the underlying offense and gang enhancement when requested by the defense

On October 8, 2021, Governor Gavin Newsom signed Assembly Bill No. 333, effective January 1, 2022, which redefines and narrows “pattern of criminal gang activity” in Penal Code section 186.22 and changes the procedure for trial on gang enhancements. The purpose of the new law is to remedy inequities in the criminal justice system brought about by the 1987 STEP Act, which historically affects neighborhoods impacted by poverty, racial inequality, and mass incarceration. Under revised section 186.22, the pattern of criminal gang activity must result in a benefit that is “more than reputational” to the gang, such as financial gain, retaliation, targeting a gang rival, or intimidating or silencing a witness. The bill also removes looting, felony vandalism, and certain personal identity fraud violations from crimes defining a pattern of criminal gang activity. In addition, the currently charged crime cannot be used to prove the pattern of criminal gang activity. Under new Penal Code section 1109, guilt on the underlying offense or a substantive gang charge must be heard prior to the proceeding on the gang enhancement, when requested by the defense.

SB 73 permits persons convicted of certain drug offenses to be granted probation or a suspended sentence

On October 5, 2021, Governor Gavin Newsom signed Senate Bill No. 73, effective January 1, 2022, which amends Health and Safety Code section 11370, repeals Penal Code section 1203.073, and repeals and replaces Penal Code section 1203.07. Under prior law, a court was prohibited from granting probation or suspending a sentence for persons convicted of certain crimes relating to controlled substances if the person had a prior conviction for specified drug-related offenses. Crimes for which probation and suspended sentence are no longer prohibited include possessing or agreeing to sell or transport opiates, possessing or transporting cannabis, planting or cultivating peyote, and crimes relating to forging or altering prescriptions. The new law also permits a court to waive prohibitions against probation in the interests of justice. In addition, the bill amends Penal Code section 29820 to add drug offenses to the list of crimes resulting in a person being prohibited from firearm ownership or possession until age 30 or older.

AB 518 amends Penal Code section 654 to permit an act punishable in different ways by different laws to be punished under any one of those laws

On October 1, 2021, Governor Gavin Newsom signed Assembly Bill No. 518, effective January 1, 2022, revising Penal Code section 654. While the law currently requires an act or omission punishable in different ways by different laws be punished under the law with the longest possible term of imprisonment, under this amendment the court can choose to impose sentence under any one of the provisions. This bill brings the court’s Penal Code section 654 discretion to its pre-1998 level, as recognized in People v. Norrell (1996) 13 Cal.4th 1. The Author’s Statement to the bill points to the need to restore judicial discretion in sentencing as the purpose of this amendment.

AB 1259 expands category of persons who can seek to vacate conviction or sentence under Penal Code section 1473.7

On September 30, 2021, Governor Gavin Newsom signed Assembly Bill No. 1259, effective January 1, 2022, which expands the category of persons able to seek to vacate a conviction or sentence as legally invalid, regardless how that person was convicted or sentenced. Penal Code section 1473.7 allows defendants who are no longer in custody to seek to vacate their convictions based on three delineated reasons. (Pen. Code, § 1473.7, subd. (a)(1)-(3).) The amendment replaces the “plea of guilty or nolo contendere” language with the more consistent “conviction or sentence” language. By doing so, the amendment allows one convicted by jury trial to bring a Penal code section 1473.7 motion to overturn the conviction.

New Law Redefines Peremptory Challenge Procedures to Eradicate Implicit Bias - Assembly Bill No. 3070

On September 30, 2020, Governor Gavin Newsom signed Assembly Bill No. 3070, which applies in jury trials in which jury selection begins on or after January 1, 2022. Codified in Code of Civil Procedure section 237.1, the new law modifies the criteria prohibited in exercising a peremptory challenge, empowers the trial court to object on its own motion to a peremptory challenge, eliminates step one of a challenge under Batson v. Kentucky(1970) 476 U.S. 79 [establishing a prima facie case of discriminatory use of peremptory challenges], places the burden on the party exercising the challenge to state reasons why the challenge has been made, sets forth the court’s responsibility in assessing the reasons and the non-exclusive circumstances the court may consider, authorizes certain remedies, and subjects the denial of a challenge to de novo review by an appellate court. For additional analysis, see ADI's article: New Law Redefines Peremptory Challenge Procedures to Eradicate Implicit Bias.

AB 624 creates new appealable order - juvenile court order transferring minor from juvenile court to court of criminal jurisdiction is appealable

On September 22, 2021, Governor Gavin Newsom signed Assembly Bill No. 624, effective January 1, 2022, which creates Welfare and Institutions Code section 801. This new code section makes an order transferring a minor from the juvenile court to a court of criminal jurisdiction (adult criminal court) to be an appealable order – subject to immediate review through an interlocutory appeal. Under this new law, the notice of appeal be must be filed within 30 days of the order transferring the minor. Upon request of the minor, the superior court must issue a stay of the criminal court proceedings until there is a final determination of the appeal. This interlocutory appeal is to have precedence in the court to which the appeal is taken and is to be determined as soon as practicable after the notice of appeal is filed. The Judicial Council will establish new rules of court for these interlocutory appeals, but they are not expected to be in effect until January 2023.

Juvenile Justice Realignment - Senate Bill No. 92

On May 14, 2021, Senate Bill No. 92 became law, effective immediately. It provides additional changes to implement the realignment of youths from the Department of Juvenile Justice (DJJ) to county-based custody. It also sets June 30, 2023 as the date DJJ closes. Senate Bill No. 823, which became effective on September 30, 2020, is the genesis of reformation of the juvenile justice system. For more information, see ADI's article: Juvenile Justice Realignment - 2021 - Senate Bill No. 92.

Juvenile Justice Realignment - Senate Bill No. 823

Senate Bill No. 823, which became effective immediately when Governor Gavin Newsom signed it on September 30, 2020, provides remarkable reformation of the juvenile justice system. Commencing July 1, 2021, the new laws direct the gradual closure of the Department of Juvenile Justice (DJJ) and transfer the management, supervision, and care of juveniles to county jurisdictions. As of July 1, 2021, a court cannot commit a minor to DJJ unless the minor qualifies under stringent criteria. The new laws provide resources to counties to undertake the new responsibility. The newly created Office of Youth Community and Restoration will oversee the gradual transition from state to local custody. The new laws create a separate dispositional track for higher-need youth, adjust the age requirement for court jurisdiction over a minor, and modify the provisions governing the detention of minors in adult facilities. To gather relevant information, the new laws require establishment of a modern database and reporting system for tracking realigned juveniles. For more information, see ADI’s article: Juvenile Justice Realignment - 2021, A General Overview at Juvenile Justice Realignment - Senate Bill No. 823.

Racial Justice Act of 2020 - Assembly Bill No. 2542

Assembly Bill No. 2542, which Governor Gavin Newsom signed on September 30, 2020 and became effective January 1, 2021, provides groundbreaking reform of the criminal justice system. The new law, which is codified in Penal Code section 745, prohibits the state from seeking or obtaining a criminal conviction or seeking, obtaining, or imposing a sentence on the basis of race, ethnicity, or national origin. It provides procedural remedies available before and after judgment. Before judgment, a defendant may file a motion. After judgment, a petition for writ of habeas corpus under Penal Code section 1437 if defendant remains in custody, or a motion under Penal Code section 1473.7 if defendant is no longer in criminal custody, may be filed. A hearing is held upon a prima facie showing of a violation of the statute. If the defendant demonstrates at that hearing, by a preponderance of the evidence, a violation, the trial court must impose a remedy tailored to the violation which is selected from a list of enumerated remedies and may impose any other remedies available under the United States Constitution, the California Constitution, or any other law. The new law applies to adjudications and dispositions in the juvenile delinquency system. (Pen. Code, § 745, subd. (f).) It applies only prospectively in cases in which judgment has been entered on and after January 1, 2021; however, there is legislative effort to make the new law retroactive to judgments final prior to January 1, 2021: Assembly Bill No. 256

AB 1869 repeals 23 Criminal Administrative Fees and writes off outstanding debt related to them

As of July 1, 2021, Assembly Bill No. 1869, which was signed by the Governor on September 18, 2020, becomes effective. It impacts clients’ sentences by eliminating assessment and collection of 23 different criminal administrative fees relating to arrest/booking (e.g., arrest and booking fees, administration fee, citation process/OR), probation/parole (e.g., probation supervision cost, pre-sentence/investigation report, jurisdictional transfer, interstate compact supervision, home detention, electronic monitoring), counsel (e.g., registration fee, cost of court-appointed counsel, cost of court-appointed counsel for minor in criminal court), and pre-trial/alternative services (e.g., work furlough program, work furlough administration, voluntary work release – SWAP, electronic monitoring instead of bail or jail). In addition, the new law writes off all outstanding debt related to these fees – not only any outstanding debt but also any resulting civil judgment. Note that some fees can still be charged and collected after the law becomes effective. And, fines as well as restitution are not affected. Here is a list of the affected fee statutes.

If the appeal remains pending as of July 1, 2021 and the judgment contains these eliminated fees, appellate briefing can assert the affected fees should be vacated under the principles set forth in In re Estrada (1965) 63 Cal.2d 740. Before pursuing this issue, you may want to contact trial counsel to determine if the county has already halted collecting the relevant fees. If the appeal is finished, defendant can reach out to the relevant Clean Slate unit (see ADI’s MCLE presented December 10, 2020) or Debt Free Justice California to ensure collection of the fees has stopped.

Consultation with the staff attorney buddy can help counsel determine the appropriate steps to take in a particular case.

AB 1950 reduces the length of probationary terms

As of January 1, 2021, Assembly Bill No. 1950, which was signed by the Governor on September 30, 2020, became effective. (Stats. 2020, ch. 328, § 2.) It impacts clients’ sentences by reducing the maximum term of probation available in many felony and misdemeanor cases.

AB 1950 amended Penal Code section 1203.1, subdivision (a), setting the maximum term of probation for many felony cases at two years. With respect to the felony case application, there are exceptions to this general rule now setting this two year term limit for felony probation. Penal Code section 1203.1, subdivision (m) outlines the exceptions: offenses listed in Penal Code section 667.5, subdivision (c), and offenses that include specific probation lengths within its provisions (see, e.g., Pen. Code, §§ 273.5 and 1203.097 [requiring a 36 month term of probation]), as well as certain theft offenses where the value of the stolen property exceeds $25,000. This new bill also amended Penal Code section 1203a to set the maximum probation term for most misdemeanor cases at one year. As with the felony probation term, this one year misdemeanor limitation does not apply when the offense includes a specific probation length within its provisions.

For a summary of the law, see Retired Judge J. Richard Couzens’s memorandum: Revision of the Maximum Term of Probation, November 18, 2020 edition, posted with the author’s permission.

Likely Estrada retroactivity and steps for counsel

Based on People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308 and People v. Frahs (2020) 9 Cal.5th 618, 624, ADI has concluded this amendment 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). (People v. Vieira (2005) 35 Cal.4th 264, 305-306, quoting People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.) The discussion of likely Estrada retroactivity concerning SB 136, SB 1393, Proposition 57, and AB 1810, in another section on this web page applies also to cases involving AB 1950. Two Court of Appeal cases have found this change to be retroactive: People v. Sims (2021) 59 Cal.App.5th 943 and People v. Quinn (2021) 59 Cal.App.5th 874.

Counsel should be mindful of the potential for unnecessarily delaying relief in pursuing the claim on appeal. To ensure the client obtains relief as expeditiously as possible during the probationary period, it may be advisable to coordinate with trial counsel to first address the claim at the trial court level. The trial court has authority to reduce the probationary term while appeal is pending, because it has jurisdiction to modify the terms of probation at any point during the probationary period. (Pen. Code, §§ 1203.2, subd. (b), 1203.3, subd. (a); see In re Osslo (1958) 51 Cal.2d 371, 380; In re Omar R. (2003) 105 Cal.App.4th 1434, 1439.)

Consultation with the staff attorney buddy can help counsel determine the appropriate steps in a particular case. In addition, consultation of the procedures outlined in Potentially Favorable Changes in the Law may be helpful.

AB 3043 grants right to confidential phone call with client in CDCR custody

On September 30, 2020, Governor Newsom signed AB 3043, effective January 1, 2021. Newly created Penal Code section 5058.7 grants attorneys, and their prisoner clients, the right to one confidential legal telephone call, lasting up to 30 minutes, each month.

To arrange a confidential telephone call with your client incarcerated in CDCR, contact the Litigation Coordinator at the State Prison where your client is in custody. Even though the communication will be by telephone, CDCR will execute a background check. Once you pass the background check, the Litigation Coordinator will schedule the call.

To request the call, expect to prepare:
1. Written request on official letterhead
2. CDCR Form 106A
3. CDCR Form 181
4. Criminal Arrest History Form
5. Copy of Driver's License
6. Copy of State Bar Card

Amendment to Penal Code section 667.5, subdivision (b) potentially reduces sentences starting in 2020 – SB 136

As of January 1, 2020, one bill passed by the Legislature and signed by the Governor on October 8, 2019, becomes effective. It potentially reduces enhancement to some clients’ sentences by limiting the nature of the prior conviction that qualifies for the enhancement.

SB 136 amends the convictions that qualify for the one year enhancement pursuant to Penal Code section 667.5, subdivision (b). Whereas before a prior prison term served for any felony qualified as a one year enhancement, under the amended subdivision a prior prison term served only for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b) now qualifies for this enhancement. Note that the enhancement under Penal Code section 667.5, subdivision (a) remains unchanged.

Likely Estrada retroactivity and steps for counsel

ADI has concluded this amendment 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). People v. Vieira (2005) 35 Cal.4th 264, 305-306, quoting People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.)

The discussion of likely Estrada retroactivity and steps for counsel concerning SB 1393 in another section on this web page applies also to cases involving SB 136.

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.

SB 1393 amendments to Penal Code sections 667(a) and 1385 will allow judges to strike serious prior conviction enhancements under section 667(a)

As of January 1, 2019, SB 1393 ends the statutory prohibition on using Penal Code section 1385 to strike prior serious felony enhancements under Penal Code section 667, subdivision (a). It potentially reduces some clients’ sentences.

Likely Estrada retroactivity

ADI has concluded SB 1393 is very likely 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). (People v. Vieira (2005) 35 Cal.4th 264, 305-306, quoting People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.) 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, 2019, would be deemed timely to meet a January 1, 2019, cert 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.)

SB 1393 is similar to SB 620, which Courts of Appeal have applied retroactively to cases that were not final on SB 620’s effective date based on the principles set forth in In re Estrada. (See, e.g., People v. Phung (2018) 25 Cal.App.5th 741, 763; People v. Almanza (2018) 24 Cal.App.5th 1104, 1109-1111; People v. Valenzuela (2018) 23 Cal.App.5th 82, 87-88; People v. McDaniels (2018) 22 Cal.App.5th 420, 424-428; and People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091.) In light of the similarities between SB 620 and SB 1393 – granting section 1385 power to strike in specific contexts – it is very likely that the Courts of Appeal will also apply SB 1393 retroactively to cases that are not final on SB 1393’s effective date (which is January 1, 2019; Cal. Const., art. IV, sec. 8(c)).

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.

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. Indeed, the appellate courts accepted similar arguments last year in the SB 620 context after the Legislature authorized Penal Code section 1385 power within the gun-use enhancement context. By the time most pending cases are decided with respect to this new Penal Code amendment, 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. Nothing else need be done.

If the case will still be on appeal in the California courts on January 1, 2019, counsel may present the SB 1393 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 2019, 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, 2019, counsel should assess whether a cert petition is advisable to keep the case on direct appeal through the effective date. 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 1393 sample argument, and a copy of Guide for Prospective Indigent Petitioners for Writs of Certiorari. (There are sample cert petitions at the bottom of ADI’s FORMS & SAMPLES page.)

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. These include both lead cases and cases on grant and hold. The cases will not be final for certiorari purposes by January 1, 2019, 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 on remand. 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 as of January 1, 2019

If one of your cases is post-remittitur but recent enough to qualify for Estrada retroactivity because the cert period will not expire before January 1, 2019, 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.

SB 1437 narrows accomplice liability that can support a murder conviction and provides a mechanism for retroactive relief in Penal Code section 1170.95

To provide more equitable sentences for offenders in accordance with their culpability and involvement in homicides, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.), herein after “Senate Bill No. 1437". (Stats. 2018, ch. 1015, § 1, subds. (b), (e).) The revised laws have eliminated vicarious liability for murder under the natural and probable consequences doctrine and have narrowed the reach of the felony-murder doctrine.

While, Penal Code section 188 still requires a principle of murder to act with malice aforethought – either express or implied –this mental state can no longer be imputed solely based on an offender’s participation in a crime. (Pen. Code, 188, subd. (a)(3).) Accordingly, the high court in People v. Gentile (2020) 10 Cal.5th 830 held that SB 1437 “bars a conviction for second degree murder under the natural and probable consequences theory.” (Id. at p. 839.)

After amendment, the felony-murder doctrine in Penal Code section 189, subdivision (e), now requires for a conviction of murder that the participant in the felony: (1) was the actual killer; or (2) with intent to kill, aided and abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer in the commission of murder in the first degree; or (3) was a major participant in the underlying felony and acted with reckless indifference. (Pen. Code, § 189, subd. (e)(1)-(3).)

Senate Bill No. 1437 makes these statutory changes retroactive exclusively through the petition procedure set forth in Penal Code section 1170.95. (Gentile, supra, 10 Cal.5th at pp. 853-859.) Under this section, defendant must file a petition in the trial court, supported by a declaration, which sets forth three claims:

(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.

(Pen. Code, § 1170.95, subds. (a)(1)–(3); see also Pen. Code, § 1170.95 subd. (b)(1)(A).) The law authorizes the court to appoint counsel if petitioner so requests in the petition. (Pen. Code, § 1170.95, subd. (b)(1)(C).) If the petition is facially sufficient and meets subdivision (b)’s three requirements, the court shall determine whether petitioner has made “a prima facie showing” for relief. (Pen. Code, § 1170.95, subd. (c).) Although many early cases posited this new law set forth two separate prima facie showings, the high court determined in People v. Lewis (2021) 11 Cal.5th 952, that only a single prima facie showing is required. (Id. at pp. 961-962.) Based on the logical and natural reading of the statute, the court set forth the statute’s required procedure: “a complying petition is filed; the court appoints counsel, if requested; the issue is briefed; and then the court makes one (not two) prima facie determination.” (Id. at p. 966.)

Judge J. Richard Couzens has prepared a treatise on the statutory changes made by Assembly Bill No. 1437: Accomplice Liability For Murder (SB 1437). He has graciously offered to share the document with ADI. Please find the April 2022 update of the memorandum, here.

There are still several cases pending in the Supreme Court that consider aspects of the law created by Senate Bill No. 1437. They are:

  • People v. Lopez (2019) 38 Cal.App.5th 1087, review granted November 13, 2019, S258175 [(1) Does Senate Bill No. 1437 apply to attempted murder liability under the natural and probable consequences doctrine?; (2) In order to convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, must a premeditated attempt to murder have been a natural and probable consequence of the target offense? In other words, should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v. United States (2013) 50 U.S. 99 and People v. Chiu (2014) 59 Cal.4th 155?; (3) what is the significance of SB 775 to the issues presented in this case?]
  • People v. Duke (2020) 55 Cal.App.5th 113, review granted January 13, 2021, S265309 [People’s burden to establish petitioner’s ineligibility for resentencing under Penal Code section 1170.95, subdivision (d)(3) – substantial evidence or beyond a reasonable doubt?]
  • People v. Delgadillo (November 18, 2020, B304441) [nonpub. opn.], review granted February 17, 2021, S266305 [what procedures must appointed counsel and the Courts of Appeal follow when counsel determines that an appeal from an order denying post-conviction relief lacks arguable merit? Are defendants entitled to notice of these procedures?]
  • People v. Strong (December 18, 2020, C091162) [nonpub. opn.], review granted March 10, 2021, S266606 [does a pre-Banks and pre-Clark felony murder special circumstance preclude defendant from making a prima facie showing of relief under Penal Code section 1170.95?]
  • People v. Carney (December 10, 2019, C077558) [nonpub. opn.], review granted March 25, 2020, S260063 [what impact do People v. Chiu (2014) 59 Cal.4th 155 and Senate Bill No. 1437 have on the “substantial concurrent causation” theory of liability stated in People v. Sanchez (2001) 26 Cal.4th 834?]

1. Several years earlier in People v. Chiu (2014) 59 Cal.4th 155, the high court recognized “the connection between the defendant’s culpability and the perpetrator’s premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine….” (Id. at p. 166.) It held “a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine.” (Id. at p. 167.)

2. Note that the clarifications of Senate Bill No. 775 (2021-2022 Reg. Sess.) override Gentile’s exclusive remedy holding. (Stats. 2021, ch. 551, sec. 2: new Penal Code section 1170.95, subdivision (g).) See the Recent Changes in the Law discussion of Senate Bill No. 775 for a discussion of this clarifying statute.

3. Senate Bill No. 775's modification of Penal Code section 1170.95, subdivision (a) will impact this first question.

4. Senate Bill No. 775's addition of new language in Penal Code section 1170.95, subdivision (d)(3) will impact this question. The Supreme Court has asked for supplemental letter briefs addressing the significance, if any, of Senate Bill No. 775 (Stats. 2021, ch. 551).

5. Senate Bill No. 775's addition of new language in Penal Code section 1170.95, may impact this question. The Supreme Court has asked for supplemental letter briefs addressing the significance, if any, of Senate Bill No. 775 (Stats. 2021, ch. 551).

SB 1391 restricts district attorney’s ability to seek transfer of cases from juvenile court if defendant was a minor when the offense was committed

Proposition 57: elimination of direct filing by district attorney in criminal court

On November 8, 2016, California voters approved Proposition 57, which significantly amended Welfare and Institutions Code sections 602 and 707 and removed the prosecution’s authority to directly file, in adult court, cases against persons who committed crimes as juveniles. Under the amended statutes, it was only the juvenile court that could authorize removal of a minor’s case to adult criminal court after a fitness hearing, either in matters where minor is alleged to have committed a felony offense when he or she was 16 years or older, or where the minor is alleged to have committed an enumerated serious offense when he or she was 14 or 15 years old. (Former Welf. & Inst. Code, § 707, subd. (a) or (b).)

The Supreme Court found in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 that this statutory change applied retroactively. The court approved the remedy set forth in People v. Vela (2017) 11 Cal.App.5th 68, for juveniles who had cases pending in criminal court prior to the passage of Proposition 57. The Supreme Court wrote:

Specifically, the Vela court ordered as follows: “Here, under these circumstances, Vela’s conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. (§ 707.) When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Vela’s cause to a court of criminal jurisdiction. ([Welf. & Inst. Code], § 707, subd. (a)(1).) If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela to a court of criminal jurisdiction because he is ‘not a fit and proper subject to be dealt with under the juvenile court law,’ then Vela’s convictions and sentence are to be reinstated. (§ 707.1, subd. (a).) On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction, then it shall treat Vela’s convictions as juvenile adjudications and impose an appropriate ‘disposition’ within its discretion.” (Vela, supra , 11 Cal.App.5th at p. 82, rev.gr.)

(People v. Superior Court (Lara), supra, 4 Cal.5th at p. 310.) Since Lara , Courts of Appeal have retroactively applied the changes created by Proposition 57 and remanded the cases to the juvenile court for a transfer hearing. (See, e.g., People v. Carter (2018) 26 Cal.App.5th 985; People v. Phung (2018) 25 Cal.App.5th 741, 762-763; People v. Vela, supra , 21 Cal.App.5th 1099, 1112-1113.)

SB 1391: Restriction on transfer of minor from juvenile to adult court

The Legislature has now further restricted what cases can be eligible for transfer from juvenile to adult court. On September 30, 2018, Senate Bill No. 1391 was enacted. It becomes effective January 1, 2019. Like Proposition 57, the new legislation allows the district attorney to seek transfer of a defendant from juvenile to adult court when the defendant was 14 or 15 years old at the time the offense was committed and the offense is a serious felony listed in Welfare and Institutions Code section 707, subdivision (b), but SB 1391 adds the restriction that such a transfer may be sought only if the defendant was not apprehended until after the end of juvenile court jurisdiction . In considering when “the end of juvenile court jurisdiction” occurs, counsel should consult Welfare and Institutions Code sections 602 and 607 subdivisions (a) and (b), recently amended by AB 1812.

Retroactivity and steps for counsel

Using the legal analysis set forth in People v. Superior Court (Lara), supra , 4 Cal.5th 299, ADI has concluded SB 1391’s amendment further restricting the district attorney’s ability to request transfer of a juvenile case to adult court 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.

The discussion of likely Estrada retroactivity and steps for counsel concerning SB 1393 in the preceding section on this web page applies also to cases involving SB 1391 (except for the paragraph listing cases construing SB 620).

Counsel should call the court’s attention to the Vela procedure approved by the Supreme Court in Lara and discuss its applicability to the case at hand.

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)

On September 30, 2018, the Governor signed California Senate Bill No. 215 (2017-2018 Reg. Sess.) which amended Penal Code section 1001.36 to restrict application of the new mental health diversion disposition and eliminate this alternative disposition where the defendant committed enumerated violent crimes. This modification of Mental Health Diversion eligibility will be effective January 1, 2019. (Cal. Const., art. IV, § 8(c).)

The Judicial Council of California has prepared a PowerPoint document outlining AB 1810 Implementation. (Published 01/01/2019)

Retroactivity

The Supreme Court found that this law is 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 – when it decided People v. Frahs (2020) 9 Cal.5th 618.

Responsibilities of counsel

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.

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.

Resources

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. 124, hcc@adi-sandiego.com

Cindi Mishkin, 619-696-0284, ext. 155, 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.

Resources

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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*The material found on this Web site is for informational purposes only. It should not be considered to be legal advice and is not guaranteed to be complete or up to date. Use of this Web site is not intended to create, and receipt of it does not constitute, an attorney-client relationship between the user and Appellate Defenders, Inc. (ADI) or any of the firm's attorneys. Readers should not rely upon or act upon this information without seeking professional counsel. See full disclaimer.