Senate Bill 1142 – Changing How Jails Release Inmates

Senate Bill 1142

Senate Bill 1142, also known as “The Getting Home Safe Act,” would change how inmates are released from county jail.

Changes Proposed by Senate Bill 1142

First, sheriffs would release inmates between 8 a.m. and 5 p.m. If inmates are not released during that time, they could remain in jail until normal business hours the next day.

Second, inmates could request transportation from jail up to 100 miles away.

Third, sheriffs would provide a safe place for inmates to wait for a ride. The place would have equipment to charge a cell phone and access to a free public telephone.

Fourth, sheriffs would provide a 3-day supply of medicine to anyone incarcerated for more than 30 days.

Fifth, inmates could request transportation from jail to a drug or alcohol rehabilitation facility.

Why do we need Senate Bill 1142

The late-night release of inmates is dangerous for inmates. It is also dangerous for the public health and safety of the community at large.

It is especially dangerous for women, including transgender women. Such women can be targets for physical abuse, sexual abuse, and sex trafficking.

Additionally, inmates with mental illness or substance addiction are unlikely to be able to access treatment services late at night.

In 2014, California passed legislation to allow county jails to voluntarily participate in a program to reduce the number of late-night releases. However, few jails changed their release policy. Instead, jails continue to regularly release inmates during late-night hours.

These release policies are cruel and fail to acknowledge lived trauma that inmates have experienced. This is particularly true of women who are involved in the criminal justice system.

The Legislature intends to ensure that people are released quickly from county jails. Further, inmates should be released under conditions that protect their health and maximize the likelihood of their success. Therefore, the legislature will impose statewide release standards for county jails to follow.

Contact

924 Anacapa Street, Suite 1-T
Santa Barbara, CA 93101
(805) 635-7766
RABLAW805@gmail.com

Senate Bill 1437 – Eliminating Felony Murder in California

Senate Bill 1437

Senate Bill 1437 would amend the penal code to more equitably sentence offenders according to their involvement in the crime.

Specifically, to be convicted of murder, the prosecution would need to prove that a participant in a crime acted with “malice.”

Senate Bill 1437 aims to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony.

Current Status of SB 1437

As of September 27, 2018, the bill is on Governor Brown’s desk, awaiting approval or veto.

Current Law

Malice

“Malice” is a deliberate unlawful intention to take away the life of another. Malice is required for a conviction for first or second degree murder, except in the case of felony murder.

Felony Murder

Under felony-murder, a defendant does not have to intend to kill anyone, nor commit the homicidal act, to be sentenced to first-degree murder. A defendant can be sentenced to first-degree murder even if the killing was unintentional, accidental, or negligent.

Proposed Changes

Malice

Under SB 1437, malice would not be imputed to a defendant based solely on his or her participation in a crime. The prosecution would need to prove that the defendant acted with deliberate intention to kill, killed without provocation, or killed with an abandoned and malignant heart.

Felony Murder

SB 1437 would change the felony murder rule so that a participant is only guilty of felony murder if:

The person was the actual killer, OR
The person, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, OR
The person was a major participant in the underlying felony and acted with reckless indifference to human life.

Current Law

First-Degree Felony Murder

A conviction for first-degree murder results in a sentence of 25 years to life.

To be convicted of first-degree felony murder, the prosecutor only needs to prove that the killing was committed in the perpetration or attempt to perpetrate a felony specified in Penal Code Section 189.

Those felonies are arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd act on a child under 14, oral copulation, and rape by instrument.

Current Law

Second-Degree Felony Murder

A conviction for second-degree murder results in a sentence of 15 years to life.

To be convicted of second-degree felony, the prosecutor only needs to prove that the killing was committed in the perpetration or attempt to perpetrate an “inherently dangerous felony.”

Inherently dangerous felonies include but are not limited to discharging a firearm at an inhabited dwelling, manufacturing methamphetamine, maliciously burning a car, and possessing a bomb in a residential area.

Contact

924 Anacapa Street, Suite 1-T
Santa Barbara, CA 93101
(805) 635-7766
RABLAW805@gmail.com

Can Police Search if They Smell Marijuana?

Can Police Search Me if They Smell Marijuana?

With some exceptions, police may not search a suspect or his/her property solely because they smell marijuana.

Proposition 64, known as the Adult Use of Marijuana Act, was enacted November 9, 2016. It prohibits a search based on legal possession or use of marijuana.

In order to conduct a search, police must have reason to believe the marijuana possession or use is illegal or that the suspect is engaged in some other illegal activity (In Re D.W.).

What Can Police Do if They Smell Marijuana?

Police MAY investigate further based on the smell or issue a notice to appear in court. Below is a discussion of some scenarios where police can arrest a suspect when they smell marijuana.

Driving Under the Influence

Driving a vehicle while “under the influence” of marijuana is illegal under Vehicle Code Section 23152(f).

Police may arrest the driver if they have probable cause to believe the driver is under the influence of marijuana.

Illegal Marijuana Activity

Police may arrest a suspect if they have probable cause to believe the suspect is illegally using, transporting, cultivating, selling, possessing marijuana, or manufacturing concentrates. See Health & Safety Code Sections:

11362.4(c)/11362.3(a)(5) – Use of Marijuana;
11360 – Transportation;
11358, 11362.4(f)/11362.2(a) – Cultivation;
11359 – Sale;
11357 – Possession; and
11358, 11362.4(d)/11362.3(6) – Manufacturing concentrates.

Search Incident to Lawful Arrest (“Sila”)

Police may search a suspect who in the process of being arrested or has been placed under arrest.

Police may search a suspect and the suspect’s immediate area for weapons or evidence that can be concealed or destroyed (Chimel v. California).

Probable Cause

Probable cause means law enforcement is aware of facts and circumstances that would lead a reasonable person to believe that the person is guilty of a crime (Brinegar v. United States).

Probable Cause for Marijuana-related Crimes

Common facts and circumstances used by law enforcement to support probable cause include:

- Smoke or paraphernalia in car.
- Smell marijuana smoke on hands or breath.
- Strong smell of marijuana in vehicle.
- Appearance and actions of driver.
- Failed field sobriety test(s) (ok to refuse).
- Suspect confesses to illegal conduct.
- Pay/owe sheets, scales, large quantities of money.
- Driver is sole occupant and/or car full of luggage.

Contact

(805) 635-7766
RABLAW805@gmail.com

Prop 47 Case Law Update

What is Prop 47?

Prop 47 makes certain drug and property offenses under $950 a misdemeanor.

Prop 47 Case Law

Prop 47 was passed on November 4, 2014. Since then, courts have ruled that the following charges should also be misdemeanors:

Embezzlement of $950 or less – Penal Code 503 (People v. Warmington)
Joyriding of a vehicle worth $950 or less – Vehicle Code 10851 (People v. Page)
Attempting to cash a check worth $950 or less – Penal Code 459.5 (People v. Gonzales)
Theft of Account Information of $950 or less – Penal Code 484e(d) (People v. Romanowski)

Proposition 47 Does Not Apply to the Following Charges

Medical Prescription Forgery – Health and Safety Code 11368 (People v. Gallardo)

Proposition 47 Applies to the Following Charges:

Shoplifting – Penal Code 459 – Shoplifting
Forgery – Penal Code 470-476
Fraud/Bad Checks of $950 or less – Penal Code 476a
Grand Theft of $950 or less – Penal Code 487
Petty Theft/Shoplifting of $950 or less – Penal Code 484, 484/666
Possession of Methamphetamine – Health & Safety 11377
Possession of Controlled Substance – Health & Safety 11350
Possession of Concentrated Cannabis – Health and Safety 11357(a)
Receiving Stolen Property – Penal Code 496

Prop 47 is Retroactive

Proposition 47 applies to cases prior to November 4, 2014. Inmates must file a petition in the county courthouse where they were convicted. The petition forms vary by county and can be accessed here.

Contact

(805) 635-7766
RABLAW805@gmail.com

SCR 48: Resolution to Reform Felony Murder Rule

SCR 48 – Senate Concurrent Resolution

SCR 48 is a senate concurrent resolution passed on September 22, 2017. It recognized the need for statutory reform to more equitably sentence offenders according to their involvement in the crime.

Although SCR 48 did not make any changes to existing law, it laid the foundation for Senate Bill 1437 – Accomplice Liability for Felony Murder.

Senate Bill 1437 is making its first pass through the California state legislature. After the Committee on Public Safety approved the bill by a vote of 6-1, it was referred to the Senate Appropriations Committee. A meeting before the Appropriations Committee is currently set for May 7, 2018.

SCR 48 – Punishment Should Match the Crime

Currently there are 2 laws – felony murder and aiding and abetting – that impose a punishment that is disproportionate to the criminal activity. SCR 48 recognizes that it is fundamentally unfair and in violation of basic principles of individual culpability to punish a person for the unforeseen results of another’s action.

SCR 48 – Overcrowded Prisons are Expensive

According to SCR 48, California continues to house inmates in numbers well beyond its maximum capacity at an average of 130% of capacity. WASCO, for example, is 2,000 inmates over the designed maximum capacity. Incarceration of an inmate in California costs taxpayers $70,836 per year. There are currently approximately 118,000 inmates incarcerated in California.

Malice

“Malice” is a deliberate unlawful intention to take away the life of another. Malice is required for a conviction for first or second degree murder, except in the case of felony murder.

Felony Murder

First-Degree Felony Murder

A conviction for first-degree murder results in a sentence of 25 years to life.

Those felonies are arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd act on a child under 14, oral copulation, and rape by instrument.

Second-Degree Felony Murder

A conviction for second-degree murder results in a sentence of 15 years to life.

To be convicted of second-degree felony, the prosecutor only needs to prove that the killing was committed in the perpetration or attempt to perpetrate an “inherently dangerous felony.”

Contact

(805) 635-7766
RABLAW805@gmail.com

California Becomes A Sanctuary State

California Becomes A “Sanctuary State”

On October 5, 2017, Governor Jerry Brown signed the California Values Act. The “sanctuary state” law aims to protect California’s 2.3 million undocumented citizens from federal immigration authorities (ICE).

Currently local authorities may release inmate information, including citizenship status, to federal immigration authorities. When the law becomes effective on January 1st, 2018, ICE will no longer be notified when undocumented immigrants are released from jail.

When Does The Sanctuary State Law Start?

The sanctuary state law is set to go into effect on January 1, 2018. If the Trump administration, which opposes the law, challenges the law in federal court, the start date of the law could be delayed until the conclusion of court proceedings.

What Changes?

The California Values Act does not prevent ICE from looking for people without documentation or executing search warrants for non-citizens. The law does ban state and local agencies, excluding the California Department of Corrections and Rehabilitation, from enforcing “holds” on people in prison custody.

The act blocks the deputization of police as immigration agents and bars state and local law enforcement agencies from asking about immigration status. It also prohibits new or expanded contracts with federal agencies to use California law enforcement facilities as detention centers.

California Responds To Trump Administration

State and local governments are locked in a battle with Attorney General Jeff Sessions over Sessions’ move to slash federal grant funding from “sanctuary jurisdictions.” A number of California cities have become sanctuary cities or cut ties with immigration authorities, including San Francisco and Los Angeles.

Proponents of the law argue that it makes immigrant communities safer by encouraging trust, cooperation and communication between immigrants and local authorities. Research has shown sanctuary cities have lower crime rates and that immigrants commit fewer crimes than U.S. citizens.

The Trump administration has tried to draw a link between undocumented immigrants and increases in violent crimes.

Santa Barbara County Sheriff

Santa Barbara Sheriff Bill Brown, president of the California State Sheriff’s Association, opposed the California Values Act. Brown says people will be victimized as a result of the new law.

Contact

(805) 635-7766
RABLAW805@gmail.com

Proposition 47 Early Release From Prison

Proposition 47 – Reducing Charges

Proposition 47 reduces the punishment for certain felony drug and property offense charges under $950 to a misdemeanor. It does not apply to registered sex offenders and people with prior convictions for serious or violent crimes.

Re-sentencing For Inmates

Prop 47 permits re-sentencing for people currently serving a prison sentence, or with prior felony convictions. Charges eligible to be reduced to misdemeanors are listed below.

Must File A Petition

No one is automatically released from prison under Proposition 47. Instead you must petition the court to reduce your charges and re-sentence you.

Eligible inmates who petition the court are required to be resentenced unless the court finds an unreasonable risk to public safety.

Risk To Public Safety

When determining the risk to public safety, the court may consider the offender’s criminal history, the types of crimes committed and when they occurred, the extent of injury to victims, the length of prior prison commitments, the inmate’s disciplinary and rehabilitation records while incarcerated, and any other relevant evidence.

What Is The Deadline To Petition?

Your petition must be filed with the court before November 4, 2022.

How Do I File A Petition?

Under Prop 47, in order to petition for a reduction of a crime to a misdemeanor, you must first obtain a copy of your criminal record. Next, you must obtain a petition form for reclassification. Most counties have created petition forms that can be found here.

For counties that have not created petition forms, contact the local courthouse and ask which form to use.

Once the petition is complete, send one copy to the District Attorney’s Office in the county where you were convicted. The other copy is sent to the Superior Court in the county where you were convicted.

Proposition 47 Applies To The Following Charges:

Shoplifting – Penal Code 459 – Shoplifting
Forgery – Penal Code 470-476
Fraud/Bad Checks of $950 or less – Penal Code 476a
Grand Theft of $950 or less – Penal Code 487
Petty Theft/Shoplifting of $950 or less – Penal Code 484, 484/666
Possession of Methamphetamine – Health & Safety 11377
Possession of Controlled Substance – Health & Safety 11350
Possession of Concentrated Cannabis – Health and Safety 11357(a)
Receiving Stolen Property – Penal Code 496
Embezzlement of $950 or less – Penal Code 503 (People v. Warmington)
Joyriding of a vehicle worth $950 or less – Vehicle Code 10851 (People v. Page)
Attempting to cash a check worth $950 or less – Penal Code 459.5 (People v. Gonzales)
Theft of Account Information of $950 or less – Penal Code 484e(d) (People v. Romanowski)

Contact

(805) 635-7766
RABLAW805@gmail.com