New Developments in 2021
Probation. Effective January 1, 2021, AB 1950 (Stats 2020, ch 328) amends Pen C §1203.1 to allow a court in felony cases to grant probation for up to 2 years. This 2-year limit does not apply to offenses in Pen C §667.5(c) and offenses that include specific probation lengths. The 2-year limit also does not apply to convictions under Pen C §§487(b)(3), 503, and 532a, if the total value of the taken property exceeds $25,000. In misdemeanor cases, the court may grant probation for up to 1 year, unless an offense includes a specific probation length within its provision. See Chap 38.
Three-tiered Pen C §290 registration. Effective January 1, 2021, a three-tiered sex offender registration system replaces the former Pen C §290 system. See Stats 2017, ch 541 (SB 384). The person must register as a tier-one offender under Pen C §290(d)(1), unless the court finds the person should register as a tier-two or tier-three offender and states on the record the reasons for its finding. See Chap 41.
Court-initiated misdemeanor diversion. Effective January 1, 2021, AB 3234 (Stats 2020, ch 334) adds Pen C §§1001.95–1001.97, which allow a superior court judge to offer misdemeanor diversion to a defendant over the objection of a prosecuting attorney, except as specified. See Chap 27.
Fire camp. Effective January 1, 2021, AB 2147 (Stats 2020, ch 60) adds Pen C §1203.4b, which allows persons who have successfully participated in the California Conservation Camp Program, or a county incarcerated individual hand crew as incarcerated individual hand crew members, and have been released from custody, to petition to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty. See Chap 41.
State barred from seeking, obtaining, or imposing a sentence on the basis of race, ethnicity, or national origin. Effective January 1, 2021, AB 2542 (Stats 2020, ch 317) adds Pen C §745(a), which bars 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. In addition, newly added Pen C §1473.7(a)(3) permits the defendant to file a motion to vacate a conviction on the basis of newly discovered evidence of a conviction or sentence sought, obtained, or imposed on the basis of race, ethnicity, or national origin in violation of Pen C §745(a). See Chap 41.
Peremptory challenges. Effective January 1, 2021, AB 3070 (Stats 2020, ch 318) amends CCP §231.7 to change the burden from purposeful discrimination to a substantial likelihood that an objectively reasonable person would view the membership in a protected group as a factor in the use of the peremptory challenge. See Chap 29.
Juvenile delinquency proceedings. Effective September 30, 2020, SB 823 (Stats 2020, ch 337) adds Welf & I C §208.5(a), which requires a person whose case originated in juvenile court to remain, if the person is held in secure detention, in a county juvenile facility until the person reaches 25 years old, except as provided in Welf & I C §208.5(b) and (c) and Welf & I C §731(a)(4). In addition, effective July 1, 2021, SB 823 (Stats 2020, ch 337) establishes an Office of Youth and Community Restoration (YCR) in the California Health and Human Services Agency (HHS). The office’s mission is “to promote trauma responsive, culturally informed services for youth involved in the juvenile justice system that support the youths’ successful transition into adulthood and help them become responsible, thriving, and engaged members of their communities.” See Chap 56.
Sentencing enhancements. Effective August 1, 2020, SB 118 (Stats 2020, ch 29) abrogates People v Vega (2014) 222 CA4th 1374 in Pen C §1170(h)(9) to provide that, notwithstanding the separate punishment for any enhancement, any enhancement shall be punishable in county jail or state prison as required by the underlying offense and not as would be required by the enhancement. See Chap 37.
RULES OF COURT
Appointed counsel. Effective September 1, 2020, under amended Cal Rules of Ct 8.851, the appellate division must appoint appellate counsel for a defendant who was represented by appointed counsel in the trial court or establishes indigency, and who was convicted of a misdemeanor and is subject to incarceration or a fine of more than $500, including penalty and other assessments, or who is likely to suffer significant adverse collateral consequences as a result of the conviction, or is charged with a misdemeanor and the appeal is a critical stage of the criminal process. See Chap 43.
Bail. In In re Humphrey (Mar. 25, 2021, S247278) 2021 Cal Lexis 2195, the California Supreme Court held that the court must consider the defendant’s ability to pay the amount of bail when a financial condition is necessary for release. Other conditions of release may be used to assure the defendant’s appearance and to protect public and victim safety. In addition, to detain a defendant, the court must find by clear and convincing evidence that no condition short of detention would suffice to reasonably protect the state’s interests. The supreme court declined to consider how Cal Const art I, §12(b) and (c) and Cal Const art I, §28(f)(3) could or should be reconciled, or whether they authorize or prohibit pretrial detention in noncapital cases beyond those in Cal Const art I, §12(b) and (c). See Chap 5.
Ameliorative legislation. The California Supreme Court has granted review in People v Federico (review granted Aug. 26, 2020, S263082; superseded opinion at 50 CA5th 318) and People v Padilla (review granted Aug. 26, 2020, S263375; superseded opinion at 50 CA5th 244) to determine whether a case is no longer final for the purpose of applying an intervening ameliorative change in the law when after a judgment becomes final it is later vacated, altered, or amended and a new sentence is imposed. See Chaps 47 and 56.
Felony murder or murder under natural and probable circumstances. The California Supreme Court has granted review in People v Lewis (review granted Mar. 18, 2020, S260596; superseded opinion at 43 CA5th 1128) to determine whether a trial court may consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Pen C §1170.95, and when the right to appointed counsel arises under §1170.95(c). The supreme court has also granted review in People v Duke (review granted Jan. 13, 2021, S265309; superseded opinion at 55 CA5th 113) to determine whether the People can meet their burden of establishing a petitioner’s ineligibility for resentencing under Pen C §1170.95(d)(3) by presenting substantial evidence of the petitioner’s liability for murder under Pen C §§188 and 189 as amended, or whether the People must prove every element of liability for murder beyond a reasonable doubt. See Chap 41.
Discovery. A public agency may not shift the cost of redacting exempt information from electronic records to the requester. See National Lawyers Guild v City of Hayward (2020) 9 C5th 488 in Chap 11.
Prior convictions. The California Supreme Court has granted review in In re Milton (review granted Mar. 11, 2020, S259954; superseded opinion at 42 CA5th 977) to determine whether People v Gallardo (2017) 4 C5th 120 applies retroactively to final judgments. See Chap 37.
Proposition 57. In In re Gadlin (2020) 10 C5th 915, the California Supreme Court held that the CDCR may not categorically exclude from early parole consideration all prisoners who have been previously convicted of a sex offense requiring registration under Pen C §290. See Chap 47. The California Supreme Court has granted review in People v Williams (review granted July 22, 2020, S262191; superseded opinion at 47 CA5th 475) to determine whether Pen C §3051(h) violates equal protection by excluding young adults convicted and sentenced for serious sex crimes under Pen C §667.61 from youth offender parole consideration, while young adults convicted of first degree murder are entitled to such consideration. See Chap 47.
Speedy trial. For several cases discussing speedy trial rights, see Lacayo v Superior Court (2020) 56 CA5th 396, Bullock v Superior Court (2020) 51 CA5th 134, Salari v Superior Court (2020) 49 CA5th 325, and Garcia v Superior Court (2020) 47 CA5th 631 in Chap 19. Delays attributable to public health situations may constitute good cause. For a case discussing good cause and emergency orders issued during the COVID-19 pandemic, see Stanley v Superior Court (2020) 50 CA5th 164 in Chap 19.
Diversion for persons with mental disorders. In People v Frahs (2020) 9 C5th 618, the California Supreme Court held that Pen C §1001.36 applies retroactively to all cases in which the judgment is not yet final. See Chap 27.
Expert testimony. The California Supreme Court has granted review in Walker v Superior Court (review granted Sept. 9, 2020, S263588; supersed opinion at 51 CA5th 682) to determine whether the court violated People v Sanchez (2016) 63 C4th 665 by relying on case-specific hearsay in psychological evaluations in finding probable cause. See Chap 48.
Habeas corpus. In Robinson v Lewis (2020) 9 C5th 883, the California Supreme Court held that a delay of up to 120 days between denial of a petition in the superior court and the filing of a new petition in the court of appeal, or between a denial of a petition in the court of appeal and the filing of a new petition in the supreme court, is not substantial delay. See Chap 45.
Immigration consequences. The California Supreme Court has granted review in People v Vivar (review granted Mar. 25, 2020, S260270; superseded opinion at 43 CA5th 216) to determine whether the trial court erred in ruling that defendant failed to demonstrate prejudice under Pen C §1473.7 with trial counsel’s failure to properly advise him of the immigration consequences when he rejected immigration-neutral prison offer in favor of felony reducible with drug treatment. See Chap 52.