Proposition 57. On November 8, 2016, California voters passed by initiative the Public Safety and Rehabilitation Act of 2016 (Proposition 57), which added a constitutional provision making persons sentenced to prison for a "nonviolent felony" offense eligible for parole consideration after completing the full term for their primary offense (excluding enhancements, consecutive sentences, or alternative sentencing). Cal Const art I, §32. See chaps 1, 5–6, 10–11.
Sentencing Statute. Penal Code §1170(a)(1) has been amended to reflect that the purpose of sentencing is not only punishment but also "rehabilitation, and restorative justice." See chap 1.
Great bodily injury enhancements. Penal Code §1170.1(g) does not preclude the imposition of both a §12022.7 enhancement for the infliction of GBI and a §667(a)(1) enhancement for committing a serious felony after having been previously convicted of a serious felony, even though the current felony qualified as serious solely because the defendant inflicted GBI. People v Wilson (2016) 5 CA5th 561. See chap 4.
Arming enhancements. Because the longest potential term for the enhancement for being armed in the commission of a narcotics offense is longer than the sentence for being a felon in possession of a firearm, Pen C §654 acted to stay the arming enhancements for all but one of the unstayed counts of the defendant's narcotic-related convictions as well as the sentence for being a felon in possession of a firearm on the same occasion. People v Buchanan (2016) 248 CA4th 603. See chap 5.
Use enhancements. At least one court has held that despite the use of the word "intentionally" in Pen C §12022.53(c) and (d), the statute specifies general rather than specific intent. People v Lucero (2016) 246 CA4th 750. See chap 5.
Deadly weapon enhancements. The exposed blade of a nonlocking folding knife or a pocketknife must be "locked into position" for the weapon to be a dirk or dagger. Pen C §16470; People v Castillolopez (2016) 63 C4th 322. See chap 5.
Arson. To be "inhabited," a building must be "currently used for dwelling purposes, whether occupied or not." Further, there must be evidence that someone lived in the structure or intended to live there at the time the fire was set. People v Vang (2016) 1 CA5th 377. See chap 6.
Gangs. Trial courts have discretion under Pen C §1385 to dismiss or strike entirely the Pen C §186.22(b)(1) gang enhancement. People v Fuentes (2016) 1 C5th 218. See chap 7.
Gangs and expert testimony. When a gang expert's opinion is based on "case specific" facts from hearsay sources that are presented as true by the expert, that evidence must fall within a statutory hearsay exception and, if "testimonial," must also satisfy the confrontation clause. People v Sanchez (2016) 63 C4th 665. See chap 7.
Kidnapping. Movement from one room to another in a small apartment, without a substantial increase in the risk of harm to the victim or evidence showing the movement to be a separate crime, does not constitute movement that is not merely incidental to an underlying sex crime. People v Perkins (2016) 5 CA5th 454. See chap 10.
Proposition 36. The question of whether the burden of proof to establish a defendant is ineligible for Proposition 36 relief is proof beyond a reasonable doubt or by a preponderance of the evidence is currently pending in the California Supreme Court. People v Frierson (review granted Oct. 19, 2016, S236728; superseded opinion at 1 CA5th 788). See chap 5.
Preplea diversion and DUI. Two cases came to opposite conclusions about whether preplea diversion for a DUI charge is available under Pen C §1001.80 and were taken up for review by the California Supreme Court. Compare Hopkins v Superior Court (review granted Nov. 16, 2016, S237734; superseded opinion at 2 CA5th 1275) (yes) with People v Van Vleck (review granted Nov. 16, 2016, S237219; superseded opinion at 2 CA5th 355) (no). See chap 9.
Prison priors. When the only impediment to the 5-year "washout" period is an intervening felony conviction that was later reduced to a misdemeanor under Proposition 47 (Pen C §1170.18(k)), and that reduction occurred before the defendant is sentenced on the current conviction, it no longer exists as a felony and is insufficient to prove the defendant failed to remain free from subsequent felony convictions for a continuous period of 5 years. People v Abdallah (2016) 246 CA4th 736. See chap 15.
Record of conviction and "least adjudicated elements test." The California Supreme Court has granted review in People v Gallardo (review granted Feb. 17, 2016, S231260; superseded opinion at (Nov. 16, 2015, B257357) 2015 Cal App Unpub Lexis 8238), which presents the question whether Descamps v U.S. (2013) 570 US ___, 133 S Ct 2276, prohibits a trial court from using the preliminary examination transcript as part of the record of conviction to find that the defendant used a deadly weapon in the commission of her prior conviction for a violation of Pen C §245(a)(1), assault with force likely to produce great bodily injury or with a deadly weapon. See chap 15.