Changes in the Law

On September 29, 2022, effective January 1, 2024, through Senate Bill No. 990, the Governor enacted statutory changes to Penal Code section 3003, such that persons released on Parole or PRCS will have options where they will be released. The Office of the State Public Defender has prepared a helpful memorandum/FAQ document outlining these legislative changes; ADI posts it here with permission.

On September 29, 2022, effective January 1, 2023, through Senate Bill No. 1008, the Governor enacted several statutory changes which require CDCR to provide free communication services to prisoners so they can speak with family members. The Office of the State Public Defender has prepared a helpful memorandum/FAQ document outlining these legislative changes; ADI posts it here with permission. CDCR has already launched free audio calls for its incarcerated population; it is providing tablets and telephone calls.

On September 29, 2022, Governor Gavin Newsom signed Assembly Bill No. 256, effective January 1, 2023, which amends Penal Code sections and 1473. The changes to Penal Code section 745 are significant because they extend the Racial Justice Act (RJA) protections [effective in 2021 through Assembly Bill No. 2542] to cases which are final. Retroactivity is phased. The following defendants are eligible to pursue relief through the RJA scheme:

• Eligible January 1, 2023: people sentenced to death or facing possible immigration consequences;
• Eligible January 1, 2024: serving a sentence for a felony conviction in prison, in county jail, or in the Division of Juvenile Justice (DJJ);
• Eligible January 1, 2025: people no longer incarcerated, but with a felony conviction or a juvenile case that resulted in commitment to DJJ entered after 2015;
• Eligible January 1, 2026: anyone with a felony conviction or a juvenile case that resulted in a commitment.

The Office of the State Public Defender has prepared a helpful FAQ document; ADI posts it here with permission.

On September 29, 2022, effective January 1, 2023, through Assembly Bill No. 960, the Governor enacted significant changes to the compassionate release procedure pursued by the Department of Corrections and Rehabilitation. The Office of the State Public Defender has prepared a helpful memorandum outlining these legislative changes; ADI posts it here with permission.

On September 29, 2022, effective January 1, 2023, through Senate Bill No. 1106, the Governor enacted several statutory changes which prohibit unpaid restitution to be a barrier to post-conviction relief or release on parole to an out-of-state location. The Office of the State Public Defender has prepared a helpful memorandum outlining these legislative changes; ADI posts it here with permission.

On September 28, 2022, effective January 1, 2023, through Senate Bill No. 1209 , the Governor amended Penal Code section 1170.91, which allows veterans to petition for resentencing if they suffered trauma or a condition related to their military service. Because of the amendment, this petition process is available to prisoners serving life sentences, to those serving a sentence as a result of a plea, and to those who were sentenced before 2015. The Office of the State Public Defender has prepared a helpful memorandum/FAQ document outlining these legislative changes, both in English and Spanish; ADI posts it here with permission.

On September 23, 2022, effective January 1, 2023, through Assembly Bill No. 1803, the Governor enacted statutory changes so that a person petitioning for record relief, who meets certain criteria indicating indigency, will be exempt from paying filing fees. The Office of the State Public Defender has prepared a helpful memorandum/FAQ document outlining these legislative changes; ADI posts it here with permission.

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:

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].

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.

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.

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.

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.

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.)

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.

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.

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.

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. [See our helpful chart.] As with other recently enacted legislation, the legislative findings include language referring to disproportionate burdens due to racial discrimination and indigence.

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.

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.

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.

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.

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.

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.

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.

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

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.

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

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).)

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.

Chiu

People v. Chiu (2014) 59 Cal.4th 155 held an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. The defendant was charged with murder under two theories: (1) he directly aided and abetted the murder, and (2) he aided and abetted the perpetrator of the target offense, disturbing the peace or assault, the natural and probable consequence of which was the victim’s murder. A jury found him guilty of first degree murder. Interpreting the legal principles establishing aider and abettor culpability (e.g., Pen. Code, § 31), Chiu concluded the second theory is legally incorrect. Aider and abettor culpability in the natural and probable consequences context is not sufficient to support liability for first degree murder. (Chiu, at pp. 164-166.) “[T]he connection between the defendant’s culpability and the perpetrator’s premeditative state is too attenuated.” (Id. at p. 166.) The instructional error was prejudicial under Chapman v. California (1967) 386 U.S. 18. (Chiu, at p. 168.)

Retroactivity

Chiu’s holding is a substantive rule of law that defines the reach of aider and abettor liability, and so it should be fully retroactive. (See Schriro v. Summerlin (2004) 542 U.S. 348, 351-352; Bousley v. United States (1998) 523 U.S. 614, 619-621 [decision that a substantive criminal statute does not encompass certain conduct is fully retroactive]; People v. Mutch (1971) 4 Cal.3d 389, 394-396 [reinterpretation of substantive definition of kidnapping applies to defendant whose conviction became final before People v. Daniels (1969) 71 Cal.2d 1119]; In re Hansen (2014) 227 Cal.App.4th 906, 916-917 [retroactively applying People v. Sara Chun (2009) 45 Cal.4th 1172, on merger of shooting at inhabited dwelling with resulting homicide, to conviction final on appeal].)

Responsibilities of counsel

In pre-remittitur cases, appellate counsel should raise issues related to Chiu when they would be beneficial, no matter what the stage. (See Potentially Favorable Changes in the Law, which discusses procedures at various post-conviction stages and explains the basic principles of retroactivity.)

In post-remittitur cases, a petition for writ of habeas corpus in the trial court to seek reversal pursuant to Chiu may be filed. Normally, trial counsel would be responsible for it. ADI cannot offer any realistic expectation that appellate counsel would receive compensation from the Court of Appeal for efforts on post-remittitur cases. Counsel may wish to seek a superior court appointment, however – or at least voluntarily help affected former clients by alerting them or their trial counsel to Chiu and ADI’s materials for unrepresented inmates (next topic).

Materials for unrepresented inmates

ADI has prepared materials for unrepresented inmates, which counsel may send to former clients or trial counsel:

1. Cover letter to inmate introducing the materials and procedures.
2. Instructions for preparing the habeas corpus petition.
3. Answer to Question 6, “Grounds for Relief” (Attachment to Petition)
4. MC-275 (required form for pro per habeas corpus petition)