New Developments in 2020
One-year enhancements. Effective January 1, 2020, the 1-year enhancement of Pen C §667.5(b) is limited to priors for sexually violent offenses as defined in Welf & I. C §6600, The 5-year washout remains, as does the 3-year term for each prior violent felony. See chap 37.
Primary caregiver diversion. Effective January 1, 2020, Pen C §1001.83 allows participating counties to create a pretrial diversion program for defendants charged with misdemeanors or nonserious, nonviolent felonies, who are also the primary caregivers of a child under 18 years of age. It does not apply to defendants who are alleged to have committed the crime against that child. See chap 27.
Drug registration. Effective January 1, 2020, AB 1261 (Stats 2019, ch 580) repeals the drug registration requirements of Health & S C §§11590, 11592, and 11593, See chap 41.
Plea bargains. Effective January 1, 2020, Pen C §1016.8 provides that a provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy. See chap 26.
Department of Youth and Community Restoration. Effective July 1, 2020, Stats 2019, ch 25 (SB 94) establishes a Department of Youth and Community Restoration (YCR) in the California Health and Human Services Agency (HHS), and abolishes the Division of Juvenile Justice (DJJ). The YCR is vested with all the powers, functions, duties, responsibilities, obligations, liabilities, and jurisdiction of the Division of Juvenile Justice. Govt C §12821(a). Any reference in statute, regulation, or contract to DJJ, Division of Juvenile Facilities (DJF), or California Youth Authority (CYA) should be considered reference to the YCR. Govt C §12821(b). See chap 56.
Jurisdiction of juvenile court. Effective January 1, 2020, Welf & I C §707.5 allows for persons whose case was transferred from juvenile to criminal court to return the case to juvenile court for disposition. See chap 56.
Professional licensing. Operative January 1, 2020, under Bus & P C §480, a board may not deny a license “on the basis of acts underlying a conviction for a crime” if the person has obtained a certificate of rehabilitation, been granted clemency or a pardon by a state or federal executive, or has made a showing of rehabilitation under Bus & P C §482, or the conviction has been dismissed under Pen C §§1203.4, 1203.4a, 1203.41, 1203.42, or 1203.425, or a comparable dismissal or expungement. See chap 53.
Fines, fees, and assessments. The California Supreme Court has granted review in People v Kopp (review granted Nov. 13, 2019, S257844; superseded opinion at 38 CA5th 47) to determine whether a court must consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments and, if so, which party bears the burden of proof regarding the defendant’s inability to pay. See chaps 36, 38.
Release conditions. In In re Webb (2019) 7 C5th 270, the California Supreme Court held that when the defendant posts bail, the court may impose reasonable release conditions related to public safety. See chap 5.
Discovery. The California Supreme Court has granted review in People v Superior Court (Jones) (review granted July 24, 2019, S255826; superseded opinion at 34 CA5th 75) to determine whether Pen C §1054.9 entitles an eligible defendant to discovery of a trial prosecutor’s notes about jury selection with respect to an error under Batson v Kentucky (1986) 476 US 79, 106 S Ct 1712, and People v Wheeler (1978) 22 C3d 258. See chap 11.
Right to Truth in Evidence. In People v Guzman (2019) 8 C5th 673, the California Supreme Court held that the Right to Truth-in-Evidence provision of Cal Const art I, §28(f)(2) abrogates Pen C §632(d), which mandates the exclusion of recorded confidential communications. See chap 16.
Expert testimony. The California Supreme Court, in People v Veamatahau (2020) 9 C5th 16, held that an expert witness did not relate inadmissible case-specific hearsay to the jury by using a drug database to identify the chemical composition of a drug. In People v Perez (2020) 9 C5th 1, the supreme court also held that a defendant’s failure to object to case-specific hearsay at trial before People v Sanchez (2016) 63 C4th 665 was decided did not forfeit the issue. See chap 31.
Retroactivity. In People v McKenzie (2020) 9 C5th 40, the California Supreme Court held that a defendant who was granted probation after imposition of sentence was suspended, and who did not timely appeal from the order, may take advantage of ameliorative statutory amendments during a later appeal from a judgment revoking probation and imposing sentence. See chap 35.
Waiver of right to appeal. The California Supreme Court has granted review in People v Barton (review granted June 19, 2019, S255214; superseded opinion at 32 CA5th 1088) to determine whether a defendant’s waiver of the right to appeal his or her sentence as part of a plea agreement precludes a future challenge to the stipulated sentence based on an ameliorative, retroactive change in the law. see chap 44.
Right to counsel. A defendant is entitled to counsel at a prosecution appeal of a misdemeanor suppression motion under Pen C §1538.5. See Gardner v Appellate Div. (2019) 6 C5th 998 in chap 5.
Certificate of probable cause. The California Supreme Court has granted review in People v Stamps (review granted June 13, 2019, S255843; superseded opinion at 34 CA5th 117) and People v Kelly (review granted June 13, 2019, S255145; superseded opinion at 32 CA5th 1013) to determine whether a certificate of probable cause is required for a defendant to challenge a negotiated sentence based on a later ameliorative, retroactive change in the law. See chap 44.
Parole consideration. In In re McGhee (2019) 34 CA5th 902, the court of appeal held that the screening and referral process of 15 Cal Code Regs §3492 that excluded from parole consideration otherwise eligible inmates based on their in-prison conduct was at odds with Cal Const art I, §32(a)(1). In addition, the California Supreme Court has granted review in In re Gadlin (review granted May 15, 2019, S254599; superseded opinion at 31 CA5th 784) to determine whether the CDCR may 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.
Immigration custody. The California Supreme Court has granted review in People v Maya (review granted July 10, 2019, S255371; superseded opinion at 33 CA5th 266) to determine whether Pen C §1203.4a(a) authorizes a court to consider an individual’s time spent in immigration custody after judgment of conviction, as part of the determination whether that individual has “lived an honest and upright life.” See chap 52.
Death penalty. Although evidence of the defendant’s racist beliefs may be introduced for the purpose of illuminating the circumstances of the crime or past acts of violence, the offensiveness of those beliefs may not be used to discredit the defendant’s character. See People v Young (2019) 7 C5th 905 in chap 54.
Attorney sanctions. A defense attorney may not be sanctioned for failing to disclose a witness that he or she did not intend to call but whom counsel expected the codefendant to call. See People v Landers (2019) 31 CA5th 288 in chap 58.
Electronic search conditions. In In re Ricardo P. (2019) 7 C5th 1113, the California Supreme Court held that an electronic search condition was invalid when there was no indication that the probationer had used or would use electronic devices in connection with drugs or illegal activity. See chap 38.
Implied consent. Implied consent under Veh C §23612 does not apply when driving a boat. See People v Gutierrez (2019) 33 CA5th Supp 11 in chap 55.
Proposition 57. The California Supreme Court has granted review in O.G. v Superior Court (review granted Nov. 26, 2019, S259011; superseded opinion at 40 CA5th 626) to determine whether SB 1391 (Stats 2018, ch 1012) unconstitutionally amends Proposition 57. See chap 56.