New Developments in 2018
Striking enhancements. Effective January 1, 2018, Pen C §§12022.5 and 12022.53 were amended to allow a court, in the interest of justice under Pen C §1385, to strike or dismiss a firearm enhancement otherwise required to be imposed on a felony conviction by Pen C §12022.5 (personal use) or Pen C §12022.53 (personal use in specified violent offense). This new authority extends to any resentencing that may occur under any other law. Stats 2017, ch 682. See chap 37.
Pretrial diversion. Effective January 1, 2018, Pen C §§1000–1000.65 no longer require a guilty plea and deferred entry of judgment. Deferred entry of judgment is still available in the limited context of “Back on Track” programs (Pen C §1000.8) and child abuse (Pen C §1000.12). Stats 2017, ch 778. See chap 27.
Youth offender parole hearings expanded. The legislature has extended the availability of youth offender parole hearings to anyone who was age 25 or younger at the time of the offense. Stats 2017, ch 675. In addition, Pen C §3051 was amended to add youth parole eligibility during the 25th year of incarceration for juveniles whose controlling LWOP offense was committed before the person reached age 18. Stats 2017, ch 684. See chap 56.
Elderly offender parole hearings. Under newly enacted Pen C §3055, prisoners 60 years and older who have served at least 25 years for the offense are entitled to parole consideration. Stats 2017, ch 676. See chap 47.
3-year drug enhancements. Under Health & S C §11370.2, a 3-year enhancement for specified prior convictions now only applies when the prior conviction involved the use of a minor in the commission of the offense. Stats 2017, ch 677. See chap 37.
Voir dire. Under the revised CCP §223, criminal lawyers may conduct “liberal and probing” voir dire examination to discover bias or prejudice. Stats 2017, ch 302. See chap 54.
Arrest record sealing. Under the revised provisions of Pen C §§851.87–851.92, a person who suffered arrest but no conviction is now eligible to have the arrest record sealed. Stats 2017, ch 680. See chap 41. Revisions to Welf & I C §786 and newly enacted Welf & I C §786.5 provide that juveniles whose petitions were not sustained or who had their cases dismissed may have the arrest records sealed, although the prosecution retains the right to refile within 6 months for new evidence or witness availability. Stats 2017, ch 685. See chap 56.
Juvenile sex offenders. Effective January 1, 2021, a new system will supersede the current version of Pen C §290.008, allowing juveniles convicted of specified sex offenses to petition for termination of the registration requirement after an enumerated term of years. Stats 2017, ch 541. See chap 56.
CALIFORNIA RULES OF PROFESSIONAL CONDUCT
Effective November 2, 2017, prosecutors are obligated to timely disclose any “evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence.” Cal Rules of Prof Cond 5–110(D). See chap 2.
Death penalty. Proposition 66 measures to speed up the appeals process in death penalty cases have been upheld, but time limits imposed have been interpreted as directory rather than mandatory. Briggs v Brown (2017) 3 C5th 808. See chap 54.
Prior convictions. In determining whether a defendant’s current sentence may be enhanced on the basis of a prior conviction, the trial court can only consider those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea; going behind the record violates the Sixth Amendment. People v Gallardo (2017) 4 C5th 120, overruling People v McGee (2006) 38 C4th 682. See chap 37.
Speedy trial. When proceedings are suspended under Pen C §§1367–1376 before a plea is entered, the 10- or 60-day preliminary hearing requirement does not begin to run on the date the case is reinstated but on entry of the plea. People v Figueroa (2017) 11 CA5th 665. See chap 19.
Dismissal. The California Supreme Court has granted review in People v Chavez (review granted Mar. 1, 2017, S238929; superseded opinion at 5 CA5th 110) to determine whether Pen C §1203.4 is the exclusive method to dismiss a conviction when the defendant has successfully completed probation, depriving the court of authority to grant relief under Pen C §1385. See chaps 25, 38.
Juvenile offenders and life without the possibility of parole (LWOP). The California Supreme Court has held that the Pen C §1170(d)(2) resentencing procedure does not provide an adequate remedy for a claim based on Miller error. In re Kirchner (2017) 2 C5th 1040. See chap 56.
Arbuckle waivers. The California Supreme Court has held that a defendant’s failure to make a record regarding the identity of the sentencing judge after entry of a guilty plea does not constitute an Arbuckle waiver. K.R. v Superior Court (2017) 3 C5th 295. See chap 35.
Habeas relief for ineffective assistance of counsel. The U.S. Supreme Court held in Davila v Davis (2017) ___ US ___, 137 S Ct 2058, that a federal court cannot hear a procedurally defaulted claim of ineffective assistance of appellate counsel when the petitioner’s state postconviction counsel provided ineffective assistance by failing to raise that claim. See chap 45.
Recall and resentencing. The California Supreme Court has held that Proposition 47’s definition of dangerousness does not apply to resentencing under Proposition 36. People v Valencia (2017) 3 C5th 347. See chap 37.
Noncitizen criminal defendants. A defendant subject to deportation may bring a motion to withdraw a guilty plea and/or a petition for writ of habeas corpus on grounds of ineffective assistance of counsel for failure to advise of actual immigration consequences, even if the court made a proper advisement of potential consequences under Pen C §1016.5. People v Patterson (2017) 2 C5th 885. See chap 52.
Proposition 47. Convictions for theft of access card information may be reduced to misdemeanors under Proposition 47 if the value of the stolen card is less than $950. People v Romanowski (2017) 2 C5th 903. See chap 35.
Parole revocation. A parole officer’s determination of probable cause made 3 days after arrest, and a judicial officer’s revocation hearing 14 days after arrest, did not satisfy due process if the defendant was denied opportunity to appear, be heard, present evidence, and question the parole officer who brought the accusation. People v DeLeon (2017) 3 C5th 640. See chap 47.
Right to counsel. Indigent misdemeanor defendants are entitled to appointed counsel on appeal of a restitution order. Harris v Appellate Div. (2017) 14 CA5th 142. See chap 43.
Juvenile transfer hearings. In People v Superior Court (Lara) (2018) 4 C5th 299, the California Supreme Court held that Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted. See chap 56.
Discovery. An indigent defendant facing retrial is presumptively entitled to a “full” and “complete” transcript of the prior trial—including the statements of counsel. People v Reese (2017) 2 C5th 660. See chap 11.
Restitution. Restitution does not extend to conduct that occurred before the defendant committed the crime but which constitutes an element of the crime itself. In People v Martinez (2017) 2 C5th 1093, the court found that restitution could only apply to the act of leaving the scene of the accident and not to the accident itself. See chap 40.
Probation conditions. In People v Trujillo (2017) 15 CA5th 574, the court found that probation terms that included the ability to search the defendant’s computers, cellphones, and recordable media were reasonably related to prevention of future criminality. Infringement on the defendant’s privacy rights was outweighed by the state’s strong need to monitor his conduct and ensure public safety. See chap 38.