Category: legislation

Firearm Prohibition for Misdemeanor Domestic Violence

Firearm Prohibition

Current law places a ten year firearm prohibition on person convicted of certain violent crimes. Basically, this means a person cannot own, possess, control, purchase, or receive a firearm.

This includes a misdemeanor conviction for domestic violence.

Assembly Bill 3129

Beginning January 1, 2019, a conviction for misdemeanor domestic violence (Penal Code Section 273.5) will result in a lifetime firearm prohibition.

The punishment for violating this law is a maximum fine of $1,000 and/or up to one year in jail or prison. Because prison is a possible sentence, this violation can be charged as a misdemeanor or a felony.

firearm prohibition

Which Crimes Result in Ten Year Firearm Prohibition?

The ten year prohibition applies to many violent misdemeanors, including battery, domestic violence, criminal threats, and brandishing a weapon.

For a list of all misdemeanor convictions that require a firearm prohibition, see Penal Code Section 29805.

How Long Does the Prohibition Last?

A misdemeanor domestic violation conviction under Penal Code Section 273.5 results in a lifetime ban. However, the law does not take affect until January 1, 2019.

All other misdemeanors listed under Penal Code Section 29805 result in a ten year ban.

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Assembly Bill 931 Aims to Reduce Use of Deadly Force by Police

Current Status of Assembly Bill 931

As of October 16, 2018, Assembly Bill 931 is in the Senate Rules Committee of the California State legislature.

Proposed Changes

Assembly Bill 931 aims to reduce the use of deadly force by law enforcement in California. Above all, it declares that every person has a right to be free from excessive force by officers acting under color of law.

assembly bill 931

First, officers would be required to deescalate a situation when it is safe, feasible, and reasonable. Officers may use time, distance, communications, and available resources to deescalate. However, officers would not be required to retreat before using force.

Next, it would limit the use of deadly force by a peace officer to those situations where it is necessary. Force is necessary if an objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force.

assembly bill 931

Further, the officer would have to believe that deadly force would prevent imminent death or serious bodily injury to the peace officer or to another person.

Furthermore, Assembly Bill 931 would prohibit the use of deadly force by a peace officer in a situation where an individual poses a risk only to himself or herself.

Use of Force When the Suspect Flees

Additionally, AB 931 would limit the use of deadly force by a peace officer against a person fleeing from arrest or imprisonment. During flight situations, officers could only use deadly force if:

  • The officer has probable cause to believe that:,
    • The person has committed a felony involving serious bodily injury or death, OR
    • The person intends to commit a felony involving serious bodily injury or death, AND
  • There is a threat of imminent death or serious bodily injury to the officer or to another person if the subject is not immediately apprehended.

assembly bill 931

2020 Start Date

Assembly Bill 931’s changes toPenal Code 835a would become effective January 1, 2020. This would allow law enforcement the time needed to retrain officers on the use of deadly force.

Current Law

Under current law, officers may use reasonable force to make an arrest, prevent escape, or overcome resistance. Before doing so, the officers must have reasonable cause to believe that the suspect has committed a public offense.

Officers need not retreat or desist due to resistance or threatened resistance of the suspect. An officer is not an aggressor and may use reasonable force in self-defense.

assembly bill 931Contact

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Santa Barbara, CA 93101
(805) 635-7766
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When Do SB 1437 Changes to Felony Murder Rule Start?

Felony Murder Rule Relaxed by Senate Bill 1437

On September 30, 2018, Governor Brown signed Senate Bill 1437 into law. SB 1437 relaxed the felony murder rule. Beginning January 1, 2019, a participant in a felony is guilty of felony murder only if he or she:

  1. Was the actual killer, OR
  2. 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
  3. Was a major participant in the underlying felony and acted with reckless indifference to human life.

When Does SB 1437 Take Affect?

Senate Bill 1437 takes affect beginning January 1, 2019. Qualified inmates convicted before that date can petition to be re-sentenced.

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Qualifying for Re-sentencing

There are three qualifications for re-sentencing.

First, a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.

Second, the defendant was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or second degree murder.

Lastly, the defendant could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.

How to Petition for Re-sentencing

The first step is to file a petition with the sentencing court. The inmate must include a declaration by the inmate that he or she meets the qualifications for re-sentencing.

The second step is for the court to determine whether the inmate meets the three qualifications for re-sentencing.

If the inmate meets the qualifications for re-sentencing, the third step is a hearing. This hearing is called an “Order to Show Cause.” At that hearing, the court will determine whether to vacate the murder conviction.

Felony Murder Re-sentencing

The court may recall the felony murder sentence and re-sentence the inmate on any remaining counts.

The inmate can be sentenced as if he or she had not been previously been sentenced. However, the new sentence cannot be greater than the initial sentence.

felony murderContact

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Santa Barbara, CA 93101
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Assembly Bill 1511 – Bringing Back Property Crime Enhancements

***As of September 29, 2018, Assembly Bill 1511 is awaiting decision by Governor Brown.***

Assembly Bill 1511

Assembly Bill 1511 would impose sentencing enhancements for property damage. It replaces former Penal Code Section 12022.6, which expired on January 1, 2018. Assembly Bill 1511 also allows the legislature to adjust for inflation every five years.

Enhancement Requirements

There are several requirements for imposing property damage enhancements. First, the property damage must occur during the commission or attempted commission of a felony. Second, the defendant must take, damage, or destroy the property. Third, the defendant intended to cause that taking, damage, or destruction,

The court may impose an additional term as follows:

  1. Two years if the property loss exceeds two hundred thirty-five thousand dollars ($235,000).
  2. Three years if the property loss exceeds one million five hundred thousand dollars ($1,500,000).
  3. Four years if the property loss exceeds three million seven hundred thousand dollars ($3,700,000).

assembly bill 1511

Adding Damages

Damage from multiple felonies may be added together if two conditions are met:

  • The total losses to the victims from all felonies exceed the amounts above;
  • The felonies arise from a common scheme or plan.

“Loss” Defined

The term “loss” has the following meanings:

  1. The fair market retail value of counterfeited computer software.
  2. The fair market retail value of counterfeited, but unassembled components of computer software packages.assembly bill 1511

    Urgency

    If passed, this bill would immediately take effect. According to the bill, this is because it is necessary to restore a valuable deterrent against excessive takings. Specifically, the bill seeks to deter sophisticated white collar fraud schemes.

    Many ‘white collar’ crimes are especially difficult to prosecute. This is because the perpetrators are often sophisticated criminals who have attempted to conceal their activities through a series
    of complex transactions. Further, without these enhancements, the theft of property worth millions of dollars is punished the same as theft of property worth a few hundred dollars.

    assembly bill 1511Contact

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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.

Senate Bill 1142
Inmates are often released from jail with nowhere to go and no way to call for a ride.

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.

senate bill 1142Contact

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Santa Barbara, CA 93101
(805) 635-7766
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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.

senate bill 1437

 

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.

senate bill 1437

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:

  1. The person was the actual killer, OR
  2. 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
  3. 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.

senate bill 1437

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.

criminal defense attorneyContact

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Senate Bill 620 Relaxes California’s Firearm Enhancements

senate bill 620

Senate Bill 620 Signed into Law

Senate Bill 620 was signed into law on October 11, 2017. The law gives judges the authority to strike or dismiss a firearm enhancement at sentencing. Judges may dismiss or strike enhancements if it is “in the interests of justice.”

What is an Enhancement?

An enhancement adds time to the length of a prison or jail sentence. In the case of firearm enhancements, as much as 25 years to life can be added to a sentence.

senate bill 620

California Firearm Enhancements

The firearm enhancements affected by Senate Bill 620 are Penal Code Sections 12022.5 and 12022.53.

Penal Code Section 12022.5

Additional 3, 4, or 10 years for use of a firearm in the commission of a felony or attempted felony (unless use of a firearm is an element of the felony).

Additional 5, 6, or 10 years for use of an assault weapon or machine gun during the commission of a felony or attempted felony.

Penal Code Section 12022.53

Additional 10 years for use of a firearm during the commission of a Specified Felony, even if the firearm is not loaded or operable.

Additional 20 years for discharging a firearm during a Specified Felony.

Additional 25 years to life for causing death or great bodily injury using a firearm.

senate bill 620

Specified Felony

Specified Felonies include murder, mayhem, kidnapping, robbery, carjacking, rape, and all felonies punishable by death or life in prison.

For a complete list see Penal Code Section 12022.53.

Judicial Discretion

Prior to the passage of Senate Bill 620, judges were required to sentence defendants to additional prison or jail time upon a jury finding that a firearm was used during a felony.

Judges now have the option to strike firearm enhancements if doing so would be in the Interests of Justice.

Interests of Justice

The “Interests of Justice” is whatever a judge determines to be fair and equitable.

What is a Firearm?

A firearm is:

  • A device.
  • Designed to be used as a weapon.
  • Shoots a projectile through a barrel by explosion or other form of combustion.

senate bill 620

What is an Assault Weapon?

“Assault weapons” are semiautomatic firearms listed under Penal Code Section 30510, et seq.

What is a Machine Gun?

Machine guns are any weapon that automatically shoots more than one shot by a single function of the trigger.

Machine guns also includes any parts used in converting a weapon into a machine gun AND guns that are readily convertible to machine guns.

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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.

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:

smell marijuana

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).

smell marijuana

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.

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Prop 47 Case Law Update

What is Prop 47?

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

prop 47

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:

Proposition 47 Does Not Apply to the Following Charges

prop 47

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

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.

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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.

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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.

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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.

scr 48

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.

scr 48

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.

criminal defenseContact

(805) 635-7766
RABLAW805@gmail.com