New California Criminal Laws for 2016


The California state legislature enacted 807 new laws during the 2015 legislative session. Several of them addressed criminal law issues which might be of interest, particularly to attorneys who practice criminal law.

 

NEW CRIMINAL LAWS

Photographing and video recording cops in public

Video recording of police officers by private citizens has become somewhat of a contentious issue for some cops. Officers have been known to order citizens to stop … or to have seized the recording device … or even to arrest the recording individual for interfering with the performance of police duties.

This year, the California legislature brought clarity to this situation, making it clear that such recording in a public place is not, in and of itself, a violation of the law.

To accomplish this, the legislature amended two Penal Code sections, 69 and 148. The former makes it a crime to deter or prevent an officer from performing his duties and the latter makes it a crime willfully resist, delay, or obstruct a peace officer in the performance of his duties.

Section 69 was amended to add subdivision (b), which provides:

“The fact that a person takes a photograph or makes an audio or video recording of an executive officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a).”

Section 148 was amended to add subdivision (g), which provides:

“The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.”

Biking to the music with ear buds

California law previously prohibited wearing any headset that covered both ears while driving a vehicle or riding on a bicycle.  This year, the law — Vehicle Code section 27400 — was amended to, essentially, ban ear buds while driving or riding a bicycle.

With certain exceptions (such as persons operating authorized emergency vehicles and individuals wearing hearing aids), the law now provides:

 “A person operating a motor vehicle or bicycle may not wear a headset covering, earplugs in, or earphones covering, resting on, or inserted in, both ears.”

BB Guns in public

When I was a kid growing up on Long Island, I often carried my BB rifle or .22 caliber pellet gun around the neighborhood, plinking away with them. These days, of course, carrying around a realistic-looking BB gun can get you killed.

In any effort to reduce the likelihood of such a tragic event happening in California, several provisions of law relating to BB, pellet, paintball and airsoft guns were changed this year.

Penal Code section 20165 previously excluded all BB guns from the existing prohibition on “imitation firearms”. Under the new law, BB, pellet, paintball and airsoft guns are considered “imitation firearms” and therefore illegal unless they meet specified requirements, the full details of which are available here:

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB199

Among the exceptions are the color requirements designed to make these recreational guns readily identifiable as non-lethal. New Penal Code section 16700, subdivision (b)(5), provides that these guns are not considered “imitation firearms” when they consist of:

“A device where the entire exterior surface of the device is white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink, or bright purple, either singly or as the predominant color in combination with other colors in any pattern, or where the entire device is constructed of transparent or translucent materials which permits unmistakable observation of the device’s complete contents.”

Gun violence restraining orders

Numerous and substantial changes were made to the laws regarding gun violence restraining orders. The full details of the changes, which were enacted by Assembly Bill 1014, are here:

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1014

Major provisions of the bill authorize courts to:

Issue a temporary emergency gun violence restraining order if the court finds that there is reasonable cause to believe that the subject of the petition poses an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another.

Issue an ex parte gun violence restraining order prohibiting the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition when it is shown that there is a substantial likelihood that the subject of the petition poses a significant danger of harm to himself, herself, or another in the near future by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another.

Issue a gun violence restraining order prohibiting the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a period of one year when there is clear and convincing evidence that the subject of the petition, or a person subject to an ex parte gun violence restraining order, as applicable, poses a significant danger of personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another.

The new law authorizes the renewal of the order for additional one-year periods and permits the restrained person to request one hearing to terminate the order during the effective period of the initial order or each renewal period.

The new law requires courts, upon issuance of gun violence restraining orders, to order the restrained person to surrender to the local law enforcement agency all firearms and ammunition in his or her custody or control, or which he or she possesses or owns and requires the local law enforcement agency to retain custody of the firearm or firearms and ammunition for the duration of a gun violence restraining order.

To help protect individuals against false claims in applications for gun violence restraining orders, the new law makes it a misdemeanor for anyone to file a petition for an ex parte gun violence restraining order or a gun violence restraining order issued after notice and a hearing, knowing the information in the petition to be false or with the intent to harass the person who is the subject of the requested order.

Finally, the new law also provides that a person who owns or possesses a firearm or ammunition with the knowledge that he or she is prohibited from doing so by a gun violence restraining order is guilty of a misdemeanor and shall be prohibited from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a 5-year period, commencing upon the expiration of the existing gun violence restraining order.

CCW on school grounds

The rules governing the carrying of licensed concealed weapons on or near school grounds (Penal Code sections 626.9 & 30310) were changed this year.

The changes allow the holder of a valid license to now carry a concealed firearm to carry a firearm in an area that is within 1,000 feet of, but not on the grounds of, a public or private school providing instruction in kindergarten or grades 1 to 12.

On the other hand, the changes deleted the exemptions that previously allowed a person holding a valid license to carry a concealed firearm to bring or possess a firearm on the campus of a university or college and that previously allowed a person to carry ammunition or reloaded ammunition onto school grounds if the person is licensed to carry a concealed firearm.

The new law did create an additional authorization for a person to carry ammunition or reloaded ammunition onto school grounds if it is in a motor vehicle at all times and is within a locked container or within the locked trunk of the vehicle.

Transporting dope

The definition of “transporting” controlled substances within the meaning of Health & Safety Code sections 11360, 11379.5 and 11391 was changed to mean “to transport for sale”.

The changes to these code sections, which relate to the transportation of marijuana, pcp and psychedelic mushrooms, mean that a person who is transporting those substances for personal use, rather than for sale, can be charged only with possession of, rather than the more serious charge of transporting, the proscribed substances.

Custodial battery (alternative felony-misdemeanor)

Section 243.15 was added to the California Penal Code, providing that:

“Every person confined in, sentenced to, or serving a sentence in, a city or county jail, industrial farm, or industrial road camp in this state, who commits a battery upon the person of any individual who is not himself or herself a person confined or sentenced therein, is guilty of a public offense and is subject to punishment by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail for not more than one year.”

Not that such a battery ever was a good idea, now the consequences of committing one are potentially even more severe.

Credit for time served against fines

The value of each day spent in jail and for which a defendant is entitled to credit against any imposed fine, was increased from $30 per day to $125 per day. (Penal Code section 1205)

Dismissal of traffic tickets

Want to get out of a traffic ticket? Well, the legislature added a new way this year. In the past, any citation or misdemeanor traffic offenses committed by a person sentenced to state prison could no longer be prosecuted.

Now, that restriction also applies to anyone sentenced to a county jail pursuant to Penal Code section 1170, subdivision (h), which provides for so-called “realignment” county jail sentences.

So, if you have a citation or misdemeanor traffic offense pending and you get sentenced to county jail under section 1170, subdivision (h), as an alternative to being sent to prison, will be relieved of prosecution for those traffic offenses.

Felony traffic offenses are not affected by the change in the law and can still be prosecuted, even for individuals sentenced to prison or county jail under the realignment statute.

 

NEW LAWS RELATING TO THE PROSECUTION

AND DEFENSE OF CRIMINAL CASES

Immigration consequences

Penal Code sections 1016.2 & 1016.3 were added this year, addressing how both prosecutors and defense counsel deal with the immigration consequences of guilty pleas in criminal cases.

 The new laws require that defense counsel provide to their clients accurate and affirmative advice about the immigration consequences of any proposed disposition of the client’s case and that prosecutors, “in the interests of justice … shall consider the avoidance of adverse immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution”.

Thus, the lawyers on both sides of criminal cases involving individuals who may be subject to immigration consequences as a result of their prosecution must take those potential consequences into consideration as part of the plea bargaining process.

Presumably, this will also mean that courts will be inquiring of defendants entering guilty pleas whether or not their lawyers have advised them of the potential immigration consequences. One more thing for defense counsel to keep in mind.

Prosecutorial misconduct (withholding evidence)

And one more thing for prosecutors to keep in mind (though the ethical ones always have and will not be effected in any way by this change):

Section 1424.5 was added to the Penal Code … because of the significance of this provision, here it is in full:

Penal Code section 1424.5

“(a) (1) Upon receiving information that a prosecuting attorney may have deliberately and intentionally withheld relevant or material exculpatory evidence or information in violation of law, a court may make a finding, supported by clear and convincing evidence, that a violation occurred. If the court finds such a violation, the court shall inform the State Bar of California of that violation if the prosecuting attorney acted in bad faith and the impact of the withholding contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense.

“(2) A court may hold a hearing to consider whether a violation occurred pursuant to paragraph (1).

“(b) (1) If a court finds, pursuant to subdivision (a), that a violation occurred in bad faith, the court may disqualify an individual prosecuting attorney from a case.

“(2) Upon a determination by a court to disqualify an individual prosecuting attorney pursuant to paragraph (1), the defendant or his or her counsel may file and serve a notice of a motion pursuant to Section 1424 to disqualify the prosecuting attorney’s office if there is sufficient evidence that other employees of the prosecuting attorney’s office knowingly and in bad faith participated in or sanctioned the intentional withholding of the relevant or material exculpatory evidence or information and that withholding is part of a pattern and practice of violations.

“(c) This section does not limit the authority or discretion of, or any requirement placed upon, the court or other individuals to make reports to the State Bar of California regarding the same conduct, or otherwise limit other available legal authority, requirements, remedies, or actions.”

In a related provision, subdivision (a)(5) was added to Business & Professions Code section 6068.7, providing:

“(5) A violation described in paragraph (1) of subdivision (a) of Section 1424.5 of the Penal Code by a prosecuting attorney, if the court finds that the prosecuting attorney acted in bad faith and the impact of the violation contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense.”

These provisions add serious consequences to the withholding by prosecutors of relevant or material exculpatory evidence or information in any criminal case.

—–oooOOOooo—–

FLA 75

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It is Time to End “The Insane War on Drugs”


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US Constitution 21st Amendment in the National Archives

US Constitution 21st Amendment in the National Archives

Today is the 80th Anniversary of the passage of the 21st Amendment of the United States Constitution, which repealed the 18th Amendment and the Prohibition of alcoholic beverages in the country.

Prohibition was surely one of the dumbest ideas in American history, surpassed in stupidity perhaps only by the current Insane War on Drugs, which has had many of the same ill effects as prohibition, only worse.

Remember Prohibition It Still Doesn't Work

Proponents of prohibition offered any number of justifications for imposing their religious & moralistic opinions on the rest of the country.  Among these claims were that prohibition would reduce drunkenness, reduce crime & increase respect for the law, reduce insanity, reduce child neglect & domestic violence, and reduce taxes (largely by reducing the need for courts, jails, hospitals, poor houses and insane asylums).

The Reverend Billy Sunday gave a speech at the beginning of prohibition in which he said:

“The reign of tears is over. The slums will soon be a memory. We will turn our prisons into factories and our jails into storehouses and corncribs. Men will walk upright now, women will smile and children will laugh. Hell will be forever for rent.”

In fact, prohibition had exactly the opposite effect with respect to all of the projected “benefits”.  Most noticeably, prohibition significantly increased crime in the U.S., giving rise as it did to bootlegging and organized crime.  The number of serious crimes increased, as did drunkenness, disorderly conduct, drunk driving, theft & burglary, assault and even homicide.

The costs of fighting crime increased dramatically during prohibition.  Funding for law enforcement had to be increased rather than decreased. The number of individuals convicted of federal crimes increased 561% during prohibition.  Federal prison population increased 366%.  Federal expenditures on penal facilities increased 1000%!!

Infighting among the gangs organized for bootlegging resulted in 400 gang related murders in the city of Chicago in a single year, including the infamous St. Valentine’s Day massacre. 

St. Valentine's Day massacre

Prohibition made the Mafia possible and gave rise to some of the most famous criminals in American history:

Al Capone

Al Capone

Al Capone, Joseph Bonanno, Bugs Moran, Lucky Luciano, Bugsy Siegel, Meyer Lansky, Dutch Schultz, Tommy Lucchese and Frank Nitti, to name a few.

Did we learn anything from the experience of prohibition?  Apparently, not much.  Prohibition ended in 1933 — by 1936, all 48 states had enacted laws regulating the possession, use & sale of marijuana, which was blamed for an increase in violent crime and was touted by some as the “foremost menace to life, health and morals in America”.

Nevertheless, the federal government did not become involved in outlawing (rather than simply taxing) most drugs, other than narcotics, until 1965, when amphetamines & barbiturates came under a federal prohibition.  LSD was added to the list of prohibited drugs in 1968.

Then, in 1970, the Comprehensive Drug Abuse Prevention and Control Act of 1970 (also called the Controlled Substance Act of 1970)  created the federal Drug Enforcement Agency (DEA) and brought all drugs under federal jurisdiction.

Nixon Declares "War on Drugs"

Nixon Declares “War on Drugs”

On June 17, 1971, President Richard Nixon made it official, declaring a federal “war on drugs”.

Thereafter, a flood of anti-drug legislation, both federal and state, imposed more and more restrictions on drug possession, use and sale, while simultaneously imposing increasingly severe sanctions for such possession, use and sale.

What are the governmental justifications for prohibiting the use of drugs by American citizens?  Typically, they include that such prohibition reduces drug use & the resulting impairments, reduces crime & increases respect for the law, reduces child neglect & domestic violence, and reduces the financial burden on society of dealing with drug abuse.  Sound familiar?

And what results have these draconian drug laws accomplished?

Most notably, they have created a whole new version of organized crime and gang warfare, now international in scope.  We have once again seen substantially increased crime in the U.S. (with more than 1.5 million people a year being arrested for drug related offenses) and incredibly higher costs of law enforcement (more than one TRILLION dollars spent in the “war on drugs”).

Drug Raid

Drug-related gang activity, including turf wars, has resulted in a veritable blood-bath on the streets of many American cities (as well as in a number of other countries).  Property and assault crimes committed for the purpose of obtaining drug money account for as much as half of all such crimes in many cities.

Largely because of the “insane war on drugs”, the United States imprisons a higher percentage of its population (716 people per 100,000 population) than any other country in the world.  The next closest large country is Russia (484 per 100,000), while other developed countries have uniformly lower rates of incarceration:  Brazil (274), New Zealand (193), Spain (149), England (148), the Netherlands (82), Germany (80), Norway (71), Denmark (68), Sweden (67), Finland (60), Japan (54) and India (30), to name a few.

Libertarian Party

On the 40th Anniversary of Nixon’s declaration of the “War on Drugs”, the Libertarian Party issued a press release discussing why this “war” has been an utter failure and should be abandoned.  See Note 1 below for a link to this release.

Law Enforcement Against Prohibition (LEAP)

In that release is a link to a report by Law Enforcement Against Prohibition (LEAP) which discusses in sometimes gruesome detail just what a failure the drug war has been.  See Note 2 below.

The Libertarian Party release goes on to say:

“Ultimately, of course, this tragedy is the result of our government’s refusal to allow people to engage in peaceful choices as to what they consume. Even if drug use were to rise upon a return to the American tradition of tolerance that existed before the 1914 Harrison Narcotics Act, our streets would be safer, innocent people would not have their homes raided and pets killed by narcotics agents entering the wrong house, victims of asset forfeiture laws wouldn’t have their houses and other assets seized without due process, and resources would be freed to spend on improving peoples’ lives instead of destroying them.”

It concludes with two planks of the Libertarian Party Platform:

1.0 Personal Liberty
Individuals should be free to make choices for themselves and to accept responsibility for the consequences of the choices they make. No individual, group, or government may initiate force against any other individual, group, or government. Our support of an individual’s right to make choices in life does not mean that we necessarily approve or disapprove of those choices.

1.2 Personal Privacy
Libertarians support the rights recognized by the Fourth Amendment to be secure in our persons, homes, and property. Protection from unreasonable search and seizure should include records held by third parties, such as email, medical, and library records. Only actions that infringe on the rights of others can properly be termed crimes. We favor the repeal of all laws creating “crimes” without victims, such as the use of drugs for medicinal or recreational purposes.

It is way past time to bring this insanity to a conclusion, to make law the Libertarian ideal that individuals have the right to choose for themselves whether or not to use drugs, to repeal all laws prohibiting the medicinal or recreational use of all drugs, and to release from our jails and prisons all individuals incarcerated for the possession, use or sale of drugs.

Doing so will mean having to overcome opposition from some segments of law enforcement (which derive significant financial benefits from the war on drugs), as well as the religious right and other moralists who think they should be able to dictate the actions & control the lives of others.

Albert Einstein once defined insanity as “doing the same thing over and over again and expecting different results”.  Einstein’s definition applies perfectly to the “war on drugs” and the time has come to end the insanity.

___________________________________________________

Note 1:       http://www.lp.org/news/press-releases/libertarian-party-40-years-is-enough-end-the-drug-war

Note 2:       http://www.leap.cc/wp-content/uploads/2011/06/Ending-the-Drug-War-A-Dream-Deferred.pdf

Note 3:       For more on the Libertarian view on ending the War on Drugs, see:

https://www.lpmn.org/libertarians_assert_powerful_case_ending_war_drugs/

Note 4:       For the complete Libertarian Party 2012 Platform, see:

http://www.lp.org/platform

Note 5:       The Libertarian Party website is here:

http://www.lp.org/

Words of Wisdom from the Dugout


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Clint Hurdle is the manager of the Major League baseball Pittsburgh Pirates.  This year, he has guided his team to its first winning season & first playoff appearance since 1992.  None of which would normally get him mentioned here.

However, Hurdle does something which politicians and lawmakers — indeed, everyone in the political-legal arena — would do well to emulate.  He inspires people.

One way he does this, every day, is by issuing a “Thought of the Day”, via his smartphone, to his players, their wives and friends, his friends and others — more than 1000 people around the world.

On September 9th of this year, his team was stuck at 81 wins — one shy of a winning season — and on a 4 game losing streak.  They would be playing the Texas Rangers that night and facing one of the best pitchers in the game.

In anticipation of this game, he sent the following “Thought of the Day”:

Tim Wrightman, a former All-American UCLA football player, tells a story about how, as a rookie lineman in the National Football League, he was up against the legendary pass rusher Lawrence Taylor. Taylor was not only physically powerful and uncommonly quick, but a master at verbal intimidation.

Looking Tim in the eye, [Taylor] said, “Sonny, get ready. I’m going left and there’s nothing you can do about it.”

Wrightman coolly responded, “Sir, is that your left or mine?”

The question froze Taylor long enough to allow Wrightman to throw a perfect block on him.

It’s amazing what we can accomplish if we refuse to be afraid. Fear — whether it’s of pain, failure or rejection–– is a toxic emotion that creates monsters in our mind that consume self-confidence and intimidate us from doing our best or sometimes even trying at all.

Make a difference today.

Love Clint

The anecdote about Tim Wrightman and Lawrence Taylor is interesting, but is neither the important part of this message nor the motivation for blogging about it.  Rather, it is the last full paragraph that moved me to write this.

Much of what passes for political discourse in the United States today — and what motivates laws and governmental procedures — is fear.  Fear of people:  terrorists, murderers, child molesters, religious zealots, virtually anyone who is perceived to be dangerous — or even just different.  Fear of things:  internationally, nuclear weapons — locally, guns.   Fear of equal rights for all people and of social change.

All too often, people respond to fear by seeking the protection of laws designed to prevent that which is feared.  And our politicians respond to the people by passing such laws, even when they are ineffective or, worse yet, counter-productive.

We seem to have forgotten the words of Franklin Delano Roosevelt’s first inaugural speech, “… the only thing we have to fear is fear itself.”  We are becoming a nation of sheepish ninnies, fearful and risk-averse.

We readily submit to laws which treat us like children, incapable of making our own decisions (such as the so-called “war on drugs” and the panoply of federal, state and local rules governing what, when and how much we can eat and drink). 

We readily submit to laws and procedures which supposedly make us “safer”, but actually subject us to insult, indignity and embarrassment, as we meekly submit to invasive searches and remove our belts and shoes before entering airport terminals, courthouses and federal buildings. 

We cannot even watch Clint Hurdle’s Pirates play baseball without first being stopped and searched in order to enter the stadium where the game is being played.

We Americans have a proud history of strength in the face of adversity and courage in the face of fear.  Our country was founded by men and women willing to defy the world’s reigning power and who pledged  to each other their lives, fortunes and sacred honor. 

It was built into the greatest country in the world by men and women who risked all to explore, settle and tame a continent;  who bravely fought and all too often died in war to protect our freedoms;  who explored the highest mountains and the ocean’s depths; who rode rockets into space and went to the moon;  and who made this “the land of the free and the home of the brave”.

Which takes me back to Hurdle’s message of the day on September 9th.  A message we should repeat to our political leaders and lawmakers … and one which we should insist that they have in mind when they make decisions about the well-being our of country and its people:

It’s amazing what we can accomplish if we refuse to be afraid. Fear — whether it’s of pain, failure or rejection–– is a toxic emotion that creates monsters in our mind that consume self-confidence and intimidate us from doing our best or sometimes even trying at all.

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For the full story of Clint Hurdle and his “Thought of the Day” messages, see this moving and inspirational story by Tom Friend of ESPN.com:

http://espn.go.com/mlb/playoffs/2013/story/_/id/9726637/pirates-manager-clint-hurdle-inspiring-others-daily&ex_cid=MyESPNToday_MostSent

Medical Marijuana in California


I was recently asked, “If I have a medical marijuana card in California, how much marijuana can I legally possess?”

The short answer according to the federal government, despite California’s liberalized medical marijuana law, is none. As simple as that short answer is, however, it doesn’t really answer the question.

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