Selected Developments in 2019
Bail reform. Effective October 1, 2019, designated pretrial assessment services will replace bail. See Stats 2018, ch 244 (repealing Pen C §§1268 and 1320.5, amending Govt C §27771, and adding Pen C §§1320.6-1320.34). However, on January 16, 2019, Referendum 18-0009, which seeks to overturn SB 10, qualified for the November 3, 2020 ballot, Qualification of this referendum suspends enactment of the legislation. See Cal Const art II, §9; Rossi v Brown (1995) 9 C4th 688, 703. The California Supreme Court has also granted review In re Humphrey (review granted May 24, 2018, S247278; superseded opinion at) 19 CA5th 1006) to determine whether in setting bail a court must consider the client’s ability to pay bail, nonmonetary alternatives to money bail, and public safety concerns. See also In re Webb (7 C5th 270; superseded opinion at 20 CA5th 44); In re White (review granted May 23, 2018, S248125; superseded opinion at 21 CA5th 18). See chap 5.
Prosecution motion to transfer minor to adult court Effective January 1, 2019, under Welf & I C §707, the prosecution may make a motion to transfer if (1) a minor who was 16 or older at the time of the alleged offense is accused of committing a Welf & I C §707(b) offense, or any other felony; or (2) a minor who wasage 14 or 15 at the time of the alleged offense is accused of committing a §707(b) offense, but was not apprehended before the end of the juvenile court’s jurisdiction. Stats 2018, ch 1012. See chap 56
Striking enhancements. Effective January 1, 2019, Pen C §§667 and 1385 were amended to allow the court to strike a prior conviction of a serious felony for purposes of a 5-year enhancement. Stats 2018, ch 1013. See chap 37.
Recalling sentences. Effective January 1, 2019, under Pen C §1170(d)(1), the prosecution may ask the court to recall and resentence a defendant beyond 120 days of the original sentencing. Stats 2018, ch 1001. See chap 41.
Mental health diversion. Effective June 27, 2018, the court may divert an individual that suffers from a mental disorder, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia.Pen C §1001.36(b)(1)(A). Diversion is not available for defendants charged with murder or voluntary manslaughter; rape; lewd or lascivious act on a child under 14 years of age; any offense requiring registration under Pen C §290; or violations of Pen C §220, 264.1 or 288.5. Pen C §1001.36(b)(2). The diversion period may not last longer than 2 years. Pen C §1001.36(c)(3). See Stats 2018, ch 1005; Stats 2018, ch 34. See chap 27.
Repeat theft diversion. Effective January 1, 2019, each county may establish a diversion or deferred entry of judgment program for repeat theft crimes. See Pen C §§1001.81;1001.82. If a county creates such a program, on receipt of a case or at arraignment, the prosecutor must either refer the case to the county probation department to conduct a prefiling investigation report to assess the appropriateness of program placement or, if the prosecutor's office operates the program, determine if the case appropriate for referral to the program. Pen C §1001.81(c). The program is repealed on January 1, 2021. Stats 2018, ch 803. See chap 27.
Terms of commitment. Effective January 1, 2019, under Pen C §1370(c)(1) or §1370.1(c)(1), a person confined in state hospital will receive Pen C §4019 credit and the maximum confinement time is 2 years. Stats 2018, ch 1008. See chap 48.
CALIFORNIA RULES OF PROFESSIONAL CONDUCT
On May 10, 2018, the California Supreme Court issued an order approving the new Rules of Professional Conduct, which went into effect on November 1, 2018, and includes a renumbering of the rules. See chap 2
Requirements on guilty plea. The totality of the circumstances test applies also when the record is silent as to advisements and waivers. People v Farwell (2018) 5 C5th 295. See chap 26. Grounds for challenging expert testimony. The California Supreme Court has granted review in People v Veamatahau (review granted Sept. 12, 2018, S249872; superseded opinion at 24 CA5th 68) to determine whether the prosecution's expert witness related inadmissible case-specific hearsay to the jury by using a drug database to identify the chemical composition of the drug defendant possessed. See chap 31.
Warrant requirement. A warrant is required for the government’s seizure of cell-site location cell-site location information (CSLI) from wireless carrier, absent exigent circumstances. Carpenter v U.S (2018) ___ US ___, 138 S Ct 2206. See chap 16.
Warrantless searches. When the defendant seeks to suppress evidence obtained from a series of warrantless searches and seizures, the defendant must identify the searches or seizures that are being challenged as unlawful. Davis v Appellate Div.> (2018) 23 CA5th 387, 395. See chap 16.
Diversion for persons with mental disorders. The California Supreme Court has granted review People v Frahs (review granted Dec. 27, 2018, S252220; superseded opinion at 27 CA5th 784) to determine whether Pen C §1001.36 applies retroactively to all cases in which the judgment is not yet final, and if the court of appeal erred by remanding for a determination of defendant's eligibility under Pen C §1001.36. See chap 27.
Contempt. The California Supreme Court has granted review in People v Partee (review granted July 11,2018, S248520; superseded opinion at 21 CA5th 630). In Partee, the court of appeal upheld a conviction for being an assessory after fact that was based defendant’s refusal to testify after being granted immunity. See chap 58.
Early termination of probation. A court may dismiss a case under Pen C §1385 any time before the power to pronounce judgment runs out, including after successful completion of probation. People v Chavez (2018) 4 C5th 771. See chaps 25, 38.
Limitations on initial sentences for minors in adult court. Sentences of 50 years to life and 58 years to life for nonhomicide offenses committed while under age 18 violate the Eighth Amendment. People v Contreras (2018) 4 C5th 349. See chap 56.
Recall, resentencing and redesignation. Cases that were pending appeal when Proposition 47 was passed are not automatically reduced, but must follow the petition procedures, including risk assessment. People v DeHoyos (2018) 4 C5th 594. See chap 35.
Collateral consequences of previous felony convictions. In People v Buycks (2018) 5 C5th 857, the supreme court held that it was appropriate to strike felony-based enhancements. See chap 35.
Expungement of DNA profiles and samples. Juveniles who have had their offenses reduced to misdemeanors under Proposition 47 are not entitled to have their DNA samples removed from the databank. In re C.B. (2018) 6 C5th 118. In addition, the compulsory collection of a biological sample from all adult felony arrestees for purposes of DNA testing underPen C §§296(a)(2)(C), and 296.1(a)(1)(A)) does not violate the Fourth Amendment or Cal Const art I, §13. People v Buza (2018) 4 C5th 658, See chap 41.
Appointment of counsel on appeal for indigent defendants. The California Supreme Court has granted review in Gardner v Superior Court (review granted Feb. 28, 2018; S246214; superseded opinion at 17 CA5th 636) to determine whether the appellate division of the superior court is required to appoint counsel for an indigent defendant charged with a misdemeanor offense on an appeal by the prosecution. See chap 43.
Parole suitability. In In re Butler (2018) 4 C5th 728, the California Supreme Court held that the BHP is no longer constitutionally required to calculate base terms for life prisoners and to promulgate regulations for doing so following statutory reforms to the parole suitability and release date scheme for life prisoners, which now mandate release on parole on a finding of parole suitability. See chap 47.
Crimes of violence. The U.S. Supreme Court has held that the residual clause definition of a crime of violence under 18 USC §16(b) is unconstitutionally vague, citing Johnson v U.S. (2015) ___ US ___, 135 S Ct 2551 Sessions v Dimaya (2018)___US___, 138 S Ct 1204. See chap 52.
Conduct of guilt phase at trial. If the defendant informed counsel not to concede his guilt or that he killed the victims, it is structural error for counsel to do so, requiring automatic reversal. McCoy v Louisiana (2018) ___ US ___, 138 S Ct 1500. See chap 54.