New Developments in 2022
Defendant’s right to be present. Effective January 1, 2022, AB 700 (Stats 2021, ch 196) allows a defendant who is in custody to appear by counsel in criminal proceedings, without a written waiver, if the court makes specified findings on the record by clear and convincing evidence. Under amended Pen C §§1043 and 1043.5, felony trials and preliminary hearings are now deemed to have “commenced in the presence of the defendant” if the court finds certain factors are met. See Chap 8.
Striking enhancements. Effective January, 1, 2022, SB 81 (Stats 2021, ch 721) amends Pen C §1385 by adding subdivision (c), requiring the trial court to dismiss an enhancement, if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. The court is required to consider and afford great weight to evidence offered by the defendant to prove that specified mitigating circumstances are present. Proof of the presence of one or more specified mitigating circumstances now weighs greatly in favor of dismissing an enhancement, unless the court finds that dismissal would endanger public safety. See Chap 25.
Determinate sentencing. Effective January 1, 2022, SB 567 (Stats 2021, ch 731) amends Pen C §1170 to require the court to impose a term of imprisonment not exceeding the middle term unless there are circumstances in aggravation that have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. It also requires the court, on the request of the defendant, to bifurcate the trial on the circumstances in aggravation from the trial of charges and enhancements, except in specified circumstances. In addition, amended Pen C §1170 allows the court to consider prior convictions based on a certified record of conviction without a finding by the jury. See Chap 37.
Recall of sentence. Effective January 1, 2022, AB 1540 (Stats 2021, ch 719) adds Pen C §1170.03(a) to replace Pen C §1170(d), which was deleted by SB 567 (Stats 2021, ch 731). See Chap 35.
Gang enhancements. Effective January 1, 2022, AB 333 (Stats 2021, ch 699) amends Pen C §186.22 to more clearly define and limit the scope of gang enhancements and adds Pen C §1109 to permit bifurcation of the trial of gang enhancements from the substantive crime. See Chap 37.
Limit on acts or omissions made punishable by different provisions. Effective January 1, 2022, AB 518 (Stats 2021, ch 441) amends Pen C §654(a) to authorize an act or omission that is punishable in different ways by different laws to be punished under either of those provisions, instead of under the law that provides for the longest possible term of imprisonment. See Chap 37.
Court-imposed costs. On and after January 1, 2022, under Pen C §1465.9, as amended by AB 177 (Stats 2021, ch 257), the balance of any court-imposed costs under Pen C §§1001.15, 1001.16, 1001.90, 1202.4, 1203.1, 1203.1ab, 1203.1c, 1203.1m, 1203.4a, 1203.9, 1205, 1214.5, 2085.5, 2085.6, or 2085.7, as those sections read on December 31, 2021, is unenforceable and uncollectible, and any portion of a judgment imposing those costs must be vacated. See Chap 41.
Competency. Effective January 1, 2022, under SB 317 (Stats 2021, ch 599), Pen C §1370.01 authorizes the court to conduct an inquiry into a misdemeanor defendant’s competency, and if the defendant is found incompetent to stand trial, to suspend the proceedings and take certain actions, including granting diversion not to exceed 1 year or dismissing the charges. See Chap 48.
Sexually Violent Predator Act. Effective January 1, 2022, SB 248 (Stats 2021, ch 383) amends Welf & I C §6601 to close a loophole in the Sexually Violent Predator Act (Welf & I C §§6600–6609.3) that allowed a sexually violent predator (SVP) serving an indeterminate term, who later received a new prison commitment, to be re-screened by CDCR as an SVP after serving their new term. See Chap 48.
Transfer to adult court. Effective January 1, 2022, AB 624 (Stats 2021, ch 195) adds Welf & I C §801, allowing the immediate appellate review of an order transferring a minor from the juvenile court to an adult court if a notice of appeal is filed within 30 days of the order. See Chap 56.
RULES OF COURT
Certificates of probable cause. Effective January 1, 2022, Cal Rules of Ct 8.304(b)(2) identifies exceptions to the certificate of probable cause requirement, including an appeal that challenges the denial of a motion to suppress evidence under Pen C §1538.5, and an appeal that does not challenge the validity of the plea or the admission of a probation violation. See Chap 44.
Bail. The California Supreme Court has granted review in In re Harris (review granted Mar. 9, 2022, S272632; superseded opinion at 71 CA5th 1085) to determine what evidence a trial court may consider at a bail hearing when evaluating whether the facts are evident, or the presumption great, with respect to a qualifying charged offense, and whether there is a substantial likelihood the person’s release would result in great bodily harm to others. See Chap 5.
Motions to suppress. The California Supreme Court has granted review in People v Brown (review granted Dec. 22, 2021, S271877; superseded opinion at 69 CA5th 15). The court of appeal held that if a trial court finds that the request for a continuance of a motion to suppress lacks good cause under Pen C §1050, the trial court has the authority to deny the continuance even if this may foreseeably result in a dismissal of the prosecution. See Chap 20.
Misdemeanor diversion. In Grassi v Superior Court (2021) 73 CA5th 283 and Tan v Superior Court (2022) 76 CA5th 130, two courts of appeal held that Veh C §23640 bars misdemeanor diversion under Pen C §1001.95 in DUI cases. There is a split in the appellate divisions on whether a defendant charged with a misdemeanor DUI is eligible for pretrial diversion. Compare People v Superior Court (Espeso) (2021) 67 CA5th Supp 1 (Veh C §23640 bars diversion in DUI cases) with People v Superior Court (Diaz-Armstrong) (2021) 67 CA5th Supp 10 (Veh C §23640 does not bar diversion in DUI cases). See Chap 27.
Mental health diversion. Under Pen C §1001.36(c), mental health diversion is available “until adjudication.” The California Supreme Court has granted review in People v Braden (review granted July 14, 2021, S268925; superseded opinion at 63 CA5th 330) to determine how late a defendant’s request for mental health diversion may be considered timely under Pen C §1001.36. See Chap 27.
Striking charges and enhancements. In People v Esquivel (2021) 11 C5th 671, the California Supreme Court held that a judgment is not final for purposes of applying a later ameliorative change in the law when probation is granted and execution of sentence is suspended, if the defendant may still timely obtain direct review of an order revoking probation and imposing sentence. See Chap 37.
Petitions under Pen C §1170.95. In People v Lewis (2021) 11 C5th 952, the California Supreme Court held that petitioners are entitled to the appointment of counsel on filing of a facially sufficient petition, and that only after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether the petitioner has made a prima facie showing of entitlement to relief under Pen C §1170.95(c). See Chap 41.
Appeals. The California Supreme Court has granted review in People v Delgadillo (review granted Feb. 17, 2021, S266305; no published court of appeal opinion) to determine what procedures appointed counsel and the courts of appeal must follow when counsel determines that an appeal from an order denying postconviction relief lacks arguable merit, and whether defendants are entitled to notice of these procedures. See Chap 44.
Probation revocation. The California Supreme Court has granted review in People v Gray (review granted July 14, 2021, S269237; superseded opinion at 63 CA5th 947) to determine whether the trial court violated the defendant’s right to confrontation at probation and parole revocation hearings by admitting hearsay statements in a bodycam video under the excited utterance exception of Evid C §1240 without first making a finding of good cause and determining whether a balancing of the relevant factors under People v Arreola (1994) 7 C4th 1144 favored admission. See Chap 46.
Proposition 57. In In re Mohammad (2022) 12 C5th 518, the California Supreme Court held that the CDCR acted within the authority provided by Cal Const art I, §32(b) by adopting 15 Cal Code Regs §3490(a)(5), which excludes inmates currently serving a term for a violent felony offense. See Chap 47.
Immigration consequences of plea. In People v Vivar (2021) 11 C5th 510, the California Supreme Court held that a defendant demonstrated a reasonable probability that if he had been properly advised by counsel about the immigration consequences of his plea, he would not have pleaded guilty to an offense subjecting him to mandatory deportation. See Chap 52.