Category: Penal Code

Good Time Credit Limited under PC § 2933.1

Good time credit is limited under Penal Code (“PC”) § 2933.1. This limitation applies to persons convicted of violent felonies.

Penal Code § 4019 – Good Time Credit

A person incarcerated in a county jail can earn “good time” credits. To qualify for good time credits, the prisoner must serve a minimum of 4 days. In addition, the prisoner must comply with jail regulations and perform labor. If the prisoner meets these requirements, they earn four days of credit for every two days served in jail.

Example: A defendant who is in custody for 100 days would earn 100 days of good time credits.

Good Time Credit Limited by PC § 2933.1

Persons convicted of violent felonies listed in Penal Code § 667.5 can only earn 15% good time credits while in county jail.

Example: A defendant who is in custody for 100 days would earn 15 days of good time credits.

Penal Code § 667.5 Violent Felonies

Violent felonies include murder, mayhem, robbery, arson, kidnapping, and many other violent crimes.

In addition, a violent felony is any felony:

  • in which the defendant inflicts great bodily injury;
  • on a person other than an accomplice;
  • which has been charged and proved.

Charged means that the allegation of a violent felony under Penal Code § 667.5 appears on the face of the complaint or information.

Proved means that allegation is admitted by the defendant, or found to be true by a judge or jury.

PC § 2933.1 Applies to Credits Earned Before Sentencing

Before the defendant is convicted of a violent felony, they earn regular good time credits of 2+2. However, once they are convicted, the limitation in Penal Code § 2933.1 applies. At sentencing, their credits are re-calculated and their good time credits will be reduced to 15%.

The defendant cannot earn more than 15.00%. The credits are rounded down to the closest whole number that is not more than 15%. (see People v. Ramos (1996) 50 Cal.App.4th 810.)

Example: A defendant who served 213 actual days in custody would receive 31 days of good time credits. 15% of 231 is 31.95. Therefore, 31 is the larges whole number that does not exceed 15%. Contact RBX Law if you have a question about good time credits.

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

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

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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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    Santa Barbara, CA 93101
    (805) 635-7766
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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

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.

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.

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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

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

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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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.

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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