New Developments in 2017
Proposition 64 (Adut Use of Marijuana Act), passed by the voters on November 8, 2016, reduced several felony marijuana offenses down to misdemeanors, or repealed them entirely, and reduced several misdemeanor marijuana offenses down to infractions, or repealed them entirely. It also enacted Pen C §11361.8, permitting people whose conviction would have been for a lesser degree or lesser offense or no offense at all to petition or apply for a reduction and resentencing or dismissal. See chaps 37, 41.
Proposition 57 (Public Safety and Rehabilitation Act), passed by California voters in November 2016, added §32 to Article I of the California Constitution. It requires the California Department of Corrections and Rehabilitation (CDCR) to propound regulations that provide potentially earlier parole for inmates not convicted of a violent felony. The Proposition also requires the CDCR to draft regulations that allow prison inmates to earn additional nonstatutory credits against their sentences. These credits are seemingly not available to inmates housed in jails pursuant to the realignment statutes. The CDCR has yet to draft these regulations, but practitioners, probation officers, and the courts should be on the alert for them. See chaps 37, 47. Proposition 57 also amended Welf & I C §§602 and 707 to grant the juvenile court original jurisdiction over all offenders who are under age 18 at the time of offense, regardless of the crime. A judicial transfer hearing is required before any minor may be transferred to adult criminal court. See chap 56.
CALIFORNIA RULES OF COURT
Effective July 2016, opinions of the courts of appeal that have been granted review are no longer automatically depublished (Cal Rules of Ct 8.1105(e)(1)(B)) and may be cited, but only for their "potentially persuasive value," not as binding precedent (Cal Rules of Ct 8.1115(e)(1)), unless otherwise ordered by the California Supreme Court (Cal Rules of Ct 8.1105 and 8.1115(e)(2), (3)). Any citation to a court of appeal opinion while review is pending must note the grant of review and any subsequent action by the California Supreme Court (Cal Rules of Ct 8.1115(e)(1)). See chap 18.
Right to counsel. Restrictions on the ability to use the phone to contact counsel, including on pretrial detainees, implicate the right to counsel. People v Clark (2016) 63 C4th 522.
The critical stages of a criminal proceeding, when the right to counsel attaches, include postconviction resentencing following a Pen C §1178.18 petition when the case involves more than one felony, so that the court has discretion to restructure the sentence on all counts. People v Rouse (2016) 245 CA4th 292. See chap 3.
Competent juvenile counsel. Only those attorneys who, during each of the most recent 3 calendar years, have dedicated at least 50 percent of their practice to juvenile delinquency and demonstrated competence or who have completed a minimum of 12 hours of training or education during the most recent 12-month period in the area of juvenile delinquency may be appointed to represent youth. Cal Rules of Ct 5.664(b)(1). See chap 56.
Confessions. Beginning January 1, 2017, Pen C §859.5 requires electronic recording of the entire custodial interrogation of any person suspected of committing murder. See chap 23.
Discovery. A Pitchess motion is not necessary for the defense to obtain in discovery the police dashboard camera video footage of an arrest. See City of Eureka v Superior Court (2016) 1 CA5th 755 and chap 11.
Proposition 47 and plea bargains. When a defendant seeks to have his or her sentenced recalled under Proposition 47 and the qualifying conviction was the result of a plea bargain, the prosecution may not set aside the plea bargain. Harris v Superior Court (2016) 1 C5th 984. See chap 35.
Peremptory challenges to trial judge. A district attorney office's blanket use of peremptory challenges (CCP §170.6) against a single judge, even in retaliation for the judge's order in a different case determining that the district attorney's office engaged in misconduct and even when it substantially disrupts court operations, does not violate separation of powers. People v Superior Court (Tejeda) (2016) 1 CA5th 892. See chap 21.
Special-circumstance juvenile priors. For use as a special circumstance, a prior out-of-state conviction for murder committed while the defendant was a juvenile need not meet California standards for trying a juvenile in adult court. People v Salazar (2016) 63 C4th 214. See chaps 24, 54.
Jury questionnaires in death cases. It is reversible error to discharge a prospective pro-life juror solely on the basis of his or her questionnaire answers. People v Covarrubias (2016) 1 C5th 838. See chap 54.
Evidence Code §352. The prejudice that exclusion of evidence under Evid C §352 is designed to avoid is not the damage to the defense that flows from relevant, highly probative evidence but instead refers to that evidence which tends to evoke an emotional bias against the defendant and has very little effect on the issues. People v Fruits (2016) 247 CA4th 188. See chap 24.
Evidence Code §1101(b). "If the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded." People v Williams (2017) 7 CA5th 644 (quoting People v Daniels (1991) 52 C3d 815, 855). See chap 24.
Evidence Code §1108. Other charged offenses in the current prosecution must be proved beyond a reasonable doubt before they can be used to show a propensity under Pen C §1108. People v Cruz (2016) 2 CA5th 1178. See chap 24.
Prior strike convictions. A court cannot find facts that were not determined by a jury or admitted by the defendant in a previous case in order to establish that a prior qualifies as a strike. People v Navarette (2016) 4 CA5th 829 (relying on Apprendi and Descamps). See chap 28.
Appeals and victims' rights. A victim is entitled to file a victim impact statement on appeal. Cal Const art I, §28, as amended by Marsy's Law in 2008. This does not, however, permit a victim to present legal issues that were not raised by the appellant or facts that were not in the record below. People v Hannon (2016) 5 CA5th 94. See chap 43.
Refiling after appeal and vindictive prosecution. The filing of new charges after an appellate court reversal raises a presumption of vindictiveness that the charges were filed in response to the defendant's appeal. The prosecution can overcome the presumption only by a strong, two-part showing. Johnson v Superior Court (2016) 4 CA5th 937. See chap 28.
Proposition 47 and mentally disordered offenders (MDOs). The subsequent reduction of the underlying commitment felony to a misdemeanor under Proposition 47 does not act to retroactively change an MDO's initial commitment, and the only things that must be established at a recommitment hearing are that the patient has a severe mental disorder that is not in remission or that cannot be kept in remission without treatment and that, as a result, the patient represents a substantial danger of physical harm to others. People v Goodrich (2017) 7 CA5th 699. See chap 48.
Proposition 47 and disqualifying strike priors. A prior conviction making a person ineligible for Proposition 47 relief on a current qualifying offense need not have occurred prior in time to the qualifying offense as long as the conviction occurred prior in time to the court's ruling on the petition for resentencing or application for redesignation. People v Walker (2016) 5 CA5th 872. See chap 35.
Revocation of postrelease community supervision (PRCS). The Postrelease Community Supervision Act of 2011 (Pen C §§3450—3465) does not include a definition of residence. As a result, the court in People v Gonzalez (2017) 7 CA5th 370 turned to the broad definition in the Sex Offender Registration Act (Pen C §§290—294) and concluded that since the defendant was homeless, he had neither a residence nor a change of residence to report. A person subject to PRCS, however, whether or not homeless, has an obligation under Pen C §3453(e) "to report as directed" by the supervising county agency. See chap 47.
Juvenile offenders and life without the possibility of parole (LWOP). California's youth offender parole hearings (Pen C §3051) process satisfies the prohibition in Miller v Alabama (2012) ___ US ___, 132 S Ct 2455, against mandatory life imprisonment for juvenile offenders. People v Franklin (2016) 63 C4th 261. See chap 56.
Youth offender parole hearings. Penal Code §3051(a)(1) defines a "youth offender parole hearing" as a parole suitability hearing for any person who was under 23 years of age at the time of his or her controlling offense. The hearing must provide "a meaningful opportunity for release." People v Garett (2017) 7 CA5th 871. The controlling offense is defined as the "offense or enhancement for which any sentencing court imposed the longest term of imprisonment." Pen C §3051(a)(2)(B). See chaps 47, 56.
Habeas relief for newly discovered evidence. Newly enacted Pen C §1473(b)(3)(A) lowered the standard of proof for newly discovered evidence required to obtain habeas relief, and the newly lowered standard of proof is applicable for all defendants whose petitions were pending when the law was passed. In re Miles (2016) 7 CA5th 821. See chap 42.