NEW LAWS IN CALIFORNIA FOR 2018
New criminal laws taking effect in 2018 largely continue the trend in California to scale back criminal penalties and especially those that apply to drug offenders. The following page by Long Beach criminal law Specialist, attorney Matthew Kaestner, describes many of the important new criminal laws in California.
CHANGES TO DRUG LAWS
Prior convictions for commercial drug activity can no longer enhance a new conviction for commercial drug activity by three years. The so called “3 year priors” have been eliminated. (Health and Safety Code sec. 11370.2)
Penal Code section 1000, drug diversion, has been modified in several ways. A jury trial waiver, rather than a guilty plea, is required to participate. The program is now 12 months long instead of 18. Eligibility requirements have been liberalized to allow broader participation. Grounds for termination from diversion have been reduced. (H&S secs. 1000-1000.65.)
An “unsealed,” “open” container of marijuana may not be carried in the passenger compartment of a motor vehicle while driving. (Vehicle Code sec. 23222.) However, it can be carried unsealed in the trunk. Patients carrying a doctor’s recommendation or patient I.D. are exempt from this law.
A new single government system of administration will now control marijuana sales activity in California instead of the current two systems for medical and recreational marijuana.
The California Evidence Code sec. 956 was modified to allow lawyers to confidentially counsel clients regarding compliance with California marijuana laws as long as the lawyer advises the client on conflicts with federal law.
CHANGES TO LAWS AFFECTING FIREARM USE/POSSESSION BY CONVICTED PERSONS
Persons convicted of any felony or certain misdemeanors that make them ineligible to possess a firearm, must now, upon conviction, identify and relinquish all firearms owned or controlled by them. (Penal Code sec. 29810.) A convicted person must name a designee to relinquish the firearms. A completed Prohibited Persons Relinquishment Form must be submitted to a designated probation officer whether or not the convicted person owns firearms. A convicted person has 5 or 14 days to relinquish the firearms depending on their custodial status. Persons cannot be prosecuted for possessing firearms declared if properly relinquished. [P.C. sec. 29810(g).] Persons living with a convicted person must store firearms in locked containers or with a locking device. [P.C. sec. 29810(h).]
Trial courts are no longer prohibited from striking firearm enhancements that apply to persons who are convicted of using a firearm during the commission of various felonies. A trial court may now strike the 3, 4 or 10 year enhancement under Penal Code sec. 12022.5 or the 10, 20 or 25 to life enhancement under P.C. 12022.53 when a court finds it to be “in the interests of justice.” In the past, trial courts were prohibited from dismissing these allegations under any circumstances.
CHANGES TO LAWS GOVERNING LAW ENFORCEMENT “GANG” DATABASES
On January 1, 2018, a moratorium on the use of gang databases will commence. The moratorium will remain pending an audit to insure that placement of persons on the database was made based upon valid criteria. The California DOJ shall take over administration of the main gang database, Calgangs, from the CalGang Exec. Bd. A purge of all persons who do not meet criteria established by the DOJ for inclusion in a shared gang database will occur. New criteria that are not ambiguous, overbroad, or inconsistent with empirical research will govern who can be included and how long they can be retained in a shared gang database. Persons who are eventually placed in a gang database will have the right to notice and an opportunity to contest gang member designation. [Penal Code secs. 186.34-186.36.]
CHANGES TO LAWS CONCERNING JUVENILE OFFENDERS
Juveniles under 16 must be allowed to consult with legal counsel prior to interrogation unless immediate questioning is required to prevent imminent threat to life or property. (Welfare and Institutions Code sec. 625.6)
Other juvenile law changes have resulted in reduced fees to juveniles and their parents, a four hour limit on solitary confinement, and limits on the use of mechanical restraints of juveniles during transportation of juveniles who are detained.
DUI CHARGES MAY BE DIVERTED IN VETERANS COURT
Active military and veterans’ diversion now includes DUI cases. (P.C. 1001.80) These groups will still suffer DMV consequences of a DUI arrest just like everyone else.
CHANGES TO TRIAL COURT RULES
Jury questioning or “voire dire” has been expanded and liberalized. A trial judge may still curtail “improper questioning” of a jury by counsel but may not set “ unreasonable or arbitrary time limits” on questioning. (Code of Civil Procedure sec. 223.)
Support dogs can accompany a child or victim witness during their testimony with court approval. (P.C. 868.4.)
New Penal Code sections 851.91 and 851.92 along with amendments to Penal Code secs. 851.87, 851.90, 1000.4, 1000.9 and 11105 allows for partial sealing of arrests that did not result in a conviction and that cannot be re-filed.
Some electronic filing of charges, service, and transcripts will be phased in and allowed in criminal matters. (P.C. secs. 690.5; CCP 1010.6, WIC 212.5)
CHANGES TO LAWS GOVERNING POLICE PRACTICES
Penal Code section 832.18 regarding best practices for downloading and storage of body cam data was modified. “Evidentiary data” must still be retained for at least 2 years.
Custodial officers who do not qualify as peace officers by law may now use “less lethal” firearms in the performance of their duties.
Whether a new law or an old law will effect how your criminal case is handled, Long Beach criminal law attorney, Matthew Kaestner, is the best person to turn to for up to date, informed, and expert legal advice. He can be contacted directly at 562-437-0200.
