Vega Abrogated. Under former law, when an enhancement specifically provided for a term to be served in state prison, the entire term had to be served in state prison, even when the underlying offense would otherwise be served in county jail under Pen C §1170(h). See People v Vega (2014) 222 CA4th 1374. However, in 2020 the Legislature abrogated Vega to provide that, notwithstanding the separate punishment for any enhancement, such 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 Stats 2020, ch 29, adding new Pen C §1170(h)(9)). See §§2.13, 3.13, 3.34, 3.40A, 4.23, 5.6, 8.7, 8.11A.
Adequate Notice of Enhancements Required. The Supreme Court has made clear that listing an enhancement on one count but not others fails to provide fair and adequate notice of a defendant’s potential sentence. People v Anderson (2020) 9 C5th 946, 956 (statutory pleading requirements of Pen C §§12022.53 and 1170.1(e) require more than simply alleging facts supporting an enhancement somewhere in information, disapproving People v Riva (2003) 112 CA4th 981). See §5.3.
Court May Not Strike Firearm Enhancements if Conviction Final. Courts lack jurisdiction for remand and resentencing under Pen C §§12022.5(c) and 12022.53(h) when a conviction becomes final. People v Fuimaono (2019) 32 CA5th 132. See §5.17.
Striking Prior Serious Felony Enhancement in Negotiated Disposition Cases. The California Supreme Court has ruled that a petitioner who had entered a plea agreement that included a prior serious felony enhancement under Pen C §667(a) need not obtain a certificate of probable cause to request on appeal that the trial court exercise its discretion to strike the enhancement. However, the court also concluded that this would have consequences to the original plea bargain. People v Stamps (2020) 9 C5th 685, 707. See §§5.17, 8.24, 15.20.
Gang Murder Special Circumstance. The court in People v Arce (2020) 47 CA5th 700, 710 held that Pen C §190.2(a)(22) is constitutional as it sufficiently narrows the class of persons eligible for the death penalty. To qualify for this special circumstance, the murder must also “be committed to further the criminal street gang’s pattern of criminal behavior described in section 186.22, subdivision (e),” and the defendant must “specifically intend” to further the gang’s criminal activities. See §7.24.
Gang Predicates and Case-Specific Hearsay. There is a split of authority concerning whether a gang expert’s testimony regarding a gang’s predicate offenses is “case specific.” People v Ochoa (2017) 7 CA5th 575 ruled that it is, and this was followed by several other cases finding similarly. People v Bermudez (2020) 45 CA5th 358, 375, on the other hand, ruled that expert testimony about predicate crimes in which the defendant was not involved is “background information” because it is merely “a chapter in the gang’s biography.” The issue is currently before the California Supreme Court. See §7.35.
Objecting to Case-Specific Hearsay. The California Supreme Court has ruled in People v Perez (2020) 9 C5th 1, that the failure to object to case-specific hearsay does not result in forfeiture of the issue. See §7.35.
New AB 1950 Probation Limits and DUI Cases. Effective January 1, 2021, while the maximum term of probation for most misdemeanors is now 1 year (Pen C §1203(a)), it does not apply to any offense that includes specific probation lengths within its provisions, including driving under the influence misdemeanors (see Veh C §2600(b)(1)). But the 1-year limitation will apply to alcohol-related reckless driving offenses (Veh C §23103.5) See §§9.14, 9.11.
Kidnapping Enhancement. The requirement of illegal purpose or illegal intent does not apply to the kidnapping of an intoxicated, resisting adult victim. People v Hartland (2020) 54 CA5th 71, 80. But see People v Daniels (2009) 176 CA4th 304, 308 (Oliver/Michele D. doctrine may apply to kidnapping of unresisting adult victim who is completely incapacitated by intoxication and only intermittently conscious). See §10.14
Felony Murder Liability Clarified. See In re Scoggins (2020) 9 C5th 667, where the supreme court held that defendant who planned unarmed assault and robbery but did not know accomplices likely to use deadly force did not act with reckless indifference to human life. See §10.28B.
Juvenile Carjacking Strike Requirement. In order for a juvenile adjudication for carjacking to qualify as a strike, the carjacking must have been committed while the juvenile was armed with a dangerous or deadly weapon. In re Brown (review granted June 10, 2020, S261454; superseded opinion at 45 CA5th 699). See §10.30.
Credit Calculation for Violent Felonies and Nonviolent Crimes Together. For defendants convicted of violent felonies and nonviolent crimes, the accrual of conduct credits is limited to 15 percent until the term for the violent conviction has been served. This applies even to presentence credits accrued before the violent felony is charged. People v Brown (2020) 52 CA5th 899. See §§11.5, 11.13.
Multiple Victim Special Circumstance. The court in People v Foley (2020) 56 CA5th 401, 411 held that the multiple victim circumstance does not include conviction that was in an entirely separate proceeding that concluded long before the trial of the present offense. See §11.26.
Expansion of Fraud Enhancement Related to Natural Disaster Damage Repair (Pen C §667.16). The plan or scheme to defraud an owner by offer or performance of a repair for damage caused by a natural disaster now includes improvements to an owner’s structure or property (including by adding or subtracting grounds in connection therewith), and will receive a 1-year enhancement in addition and consecutive to the penalty prescribed for the theft-related felony. See §12.25.
Plea Bargains and Transportation of Narcotics Cases. Since the 3-year enhancement of Health & S C §§11352 and 11379 no longer applies to convictions based on transportation for personal use or prior convictions for transportation for sale (Health & S C §11379) unless the controlled substance was amphetamine or methamphetamine, an ameliorative remedy applies to any case that is not final, including cases on direct appeal. However, the prosecution is entitled to withdraw from a plea agreement that included admission of the enhancement under the former statute. People v Barton (2020) 52 CA5th 1145, 1159. See §15.24.
Plea Bargains and Penal Code §667.5(b) Enhancements Split. The Fifth Appellate District has held that if a defendant was sentenced pursuant to a plea bargain that included a Pen C §667.5(b) enhancement but the enhancement is later vacated because it can no longer be supported under the ameliorative legislation, the prosecution must be given the opportunity to withdraw from the plea agreement. People v Hernandez (review granted, Jan. 27, 2021, S265739; superseded opinion at 55 CA5th 942) Similarly, a panel of the First Appellate District held the plea agreement unenforceable, but ruled that if the parties reach a new plea agreement, the court may not impose a sentence longer than the original. People v Griffin (review granted, Feb. 17, 2021, S266521; superseded opinion at 57 CAth 1088). Another panel of the First Appellate District held in People v France (2020) 58 CA5th 714, 730 that a defendant is entitled to have a prison prior enhancement stricken without undoing the plea bargain, because retroactivity of ameliorative legislation should not depend on prosecutorial assent. See also People v Matthews (2020) 47 CA5th 857, 869 (if plea agreement specified terms of sentence on each of multiple counts, court cannot increase term on any of counts on remand to compensate for elimination of enhancement on appeal). See §15.27.