San Francisco Criminal Lawyer BlogNew Criminal Laws 2019
Here are some of the significant changes to Criminal Laws in 2019.
Post-conviction Discovery
• Under existing PC 1054.9, a person sentenced to death or LWOP is entitled to post-conviction discovery to file a habeas or motion to vacate judgment. Amendments expand this right to defendants sentenced to:any case in which a defendant is convicted of a serious or violent felony resulting in a sentence of 15 years or more.
• Also, where conviction results in sentence of 15 years or more for a serious or violent felony, it requires trial counsel to retain a copy of his or her client’s files for the term of his or her imprisonment. An electronic copy is sufficient only if every item in the file is digitally copied and preserved
Judges now have discretion restored under 1385(b) to strike 5 year priors (667(a).)
•667(a) & 1385(b) amended.
1170(d) RECALL OF SENT AMENDED
•Expands factors a court can consider in recalling a sentence to include post- conviction factors, such as:
Post-Conviction Factors:
Disciplinary record; Rehabilitation;Age, time served, diminished physical condition = have reduced risk for future violence;Continued incarceration no longer in the interest of justice;
• Took effect 6/27/2018
•District Attorney can now recall sentence “at any time”;
AB 2138 Professional Licenses
License may not be denied unless: applicant was convicted of a substantially related crime or subjected to formal discipline by a licensing board, within seven years (several enumerated exemptions).
AB 2845 Certificate of Rehabilitation
• Applies to employers with 5 or more employees
• May Not consider, distribute, or disseminate information about arrest not followed by conviction (exceptions), referral to diversion program, convictions expunged, sealed, dismissed or convicted person received full pardon or has been issued a certificate of rehabilitation.
Now, anyone who “was convicted of a felony or of a crime the accusatory pleading of which was dismissed pursuant to section 1203.4.”can apply for a certificate of rehabilitation.
AB 2845 Gubenatorial pardon process
• The governor establishes criteria to allow Board of Parole Hearings within one year of receipt of the certificate to issue a recommendation as to whether the Governor should pardon that individual. Any criteria established by the Governor shall be made publicly available.
• Notification will issue to applicant when board receives application and when it issues recommendation.
• The board can make recommendations at any time and the Governor can request investigation into candidates at any time.
• If petitioner has urgent need for pardon, such as deportation, the board “shall” consider expedited review.
• Applicant is eligible for pardon or certificate of rehabilitation regardless of immigration status.
AB 1065 Misdemeanor Release
Arrest and Release: PC 853.6
• Misdemeanors “shall be released”… :
• Sub (4) There were one or more outstanding arrest warrants or failures to appear in court on previous misdemeanor citations that have not been resolved…
• Sub (9)…An arrest warrant or failure to appear that is pending at the time of the current offense…
• Sub (11) The person has been cited, arrested, or convicted for misdemeanor or felony theft from a store or vehicle in the previous 6 months;
• Sub (12) There is probable cause to believe that defendant is guilty of committing organized retail theft, as defined in PC 490.5 sub. (a).
Guns & AmmoSB 1235
Buying Ammo after July 1, 2019
• Date of sale, ammo: brand, type, amount.
• Purchaser’s ID, DOB, name, signature, residential address and telephone number
• Salesperson’s name
• Ammunition vendor shall
electronically submit info to DOJ.
• Will have to verify person is authorized to purchase ammo.
Punishment for violating ammo sale:
1 year Misdemeanor and/or $1k infraction.
Mental state: knows or should have known is prohibited from having ammunition.
AB3129 — Domestic Violence and Guns
Conviction prior to January 2019 triggers 10 year ban; Now, there is a lifetime ban.
Anyone convicted on or after January 1, 2019 of a misdo PC 273.5
•and has firearm will be guilty of 1 year misdo and/or $1k infraction.
•lifetime ban.
SB 746 Guns and warrants
People with warrants for felonies and some misdemeanors cannot possess guns (PC 29810)
Provides procedure for transferring guns and ammunition/ammunition feeding devices to authorized firearms dealer or law enforcement and procedure for getting it returned by law enforcement.
•Expands definition of ammunition to include magazine;
Subject of gun violence restraining order must surrender guns and give court a receipt for them. Now, court must transmit copy of the receipt to DOJ to keep in records.
SB 1200 — Gun violence Restraining Order
Prohibits fees associated with costs of applying for order including
• modification and order showing cause
• A person requesting protective orders must complete Confidential CLETS Information form. Its purpose is to provide law enforcement with information about the person restrained and the person to be protected.
SB 1382 Guns & pickup-trucks
Previously gun had to be locked in trunk, in a locked container out of view, or in a locked container that is permanently affixed to the interior and not in plain view.
Now:
Toolbox or utility box defined: fully enclosed container that is permanently affixed to the bed of a pickup truck or car that does not have a trunk & is locked.
You can keep your gun in a toolbox or utility box in the back of your pickup truck.
AB 1065-resoponse to complaints about Prop 47:
Enacted a new law of “organized retail theft,” making it punishable as an 1170(h) felony;
Allows the county to create diversionary program for those offenders cited for multiple acts of theft within a 12-month period.
§490.4
(1) Acts in concert with 1 or more to steal (includes on-line) with the intent to sell, exchange, or return the merchandise for value.
(2) Acts in concern with 2 or more to receive, purchase, or possess . . . knowing or be believing it to have been stolen.
(3) Acts as an agent of another to steal from 1 or more merchants (includes on-line) as part of an organized plan to commit theft.
(4) Recruits, coordinates, organizes, supervises, directs, manages, or finances another to undertake acts described in (1), (2), or any other statute defining theft of merchandise.
Marijuana
Adult Use of Marijuana Act (Health & Safe., §11362.1, eff. 11/9/16)
Adult (21 and over) may possess, give away, and/or transport for own use:
• 28.5 grams MJ
• 8 grams concentrated
• 6 plants.
Petitions under §11361.8
Most offenses reduced, so e.g., 11360 becomes a 6-month misdemeanor offense (over 28.5 grams).
Reduced for “all purposes.”
Petitioner presumed eligible unless state presents “clear and convincing evidence” otherwise.
No deadline to bring petition.
New Law: Health & Safe. Code, §11361.9 Prosecutorial Review and Resentencing
New law in response to legislature’s concern that (as of 9/17) only 4885 people petitioned for
relief when there are 500k arrested for marijuana possession in the last decade.
DOJ required to notify DA.
By 7/1/19, DOJ must identify those who are potentially eligible for relief.
By 7/1/20, the local prosecutor must identify those cases being challenged, notifying PD and Court. (Proof by c&c evidence.)
PD shall make a “reasonable effort” to notify those whom a challenge is being made.
Court shall grant relief on those petitions not challenged.
Mitigation Evidence, Veterans §§1170.9, 1170.91
The bill enacting §§1170.9, 1170.91, effective 1-1-15:
Requires the court to consider in mitigation, whether defendant was a member of the United States military who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service.
New Amendment: Recall Sentence under §1170.91
Those who are serving a State Prison sentence for a felony conviction, sentenced before 1-1-15, may petition to recall sentence.
•15 day notice.
•Available regardless of whether plea, or jury trial.
Complaining witness has a right to be heard under Marsy’s Law.
§851.91 Sealing (eff. 1-1-18)
New Amendment (eff. 1-1-19)
Requires jails to post a sign “A person who has been arrested but not convicted may petition the court to have his or her arrest and related records sealed. The petition form is available on the Internet or upon request in this facility.”
New forms created: CR-409 and 410.