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:
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:
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.
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
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.