FORECITE’S 2003 Legislative Update (leg 03)
[Legislation effective January 1, 2003 unless effective earlier as urgency legislation where noted. This includes all legislation passed from January 2, 2002 through January 1, 2003.] Note: It is still unsettled whether urgency legislation becomes effective the date the Governor signs the bill or the date the Secretary of state files it.]
As an ongoing service to its subscribers, each year FORECITE reviews new legislation operative January 1st which may impact jury instructions. This update includes cross-referencing to any existing CALJIC instructions. The FORECITE update also discusses selected legal issues, particularly those related to jury instruction issues.
Summaries of non-jury instruction legislation is also included to provide comprehensive review of all new substantive legislation relating to criminal law.
CAVEAT I: For crimes committed prior to the operative date of the statute ex post facto principles preclude application of the new legislation if it increases punishment or expands criminal liability. (See In re Baert (88) 205 CA3d 514, 517-18 [252 CR 418].) Moreover, all new statutes are generally presumed to operate prospectively. (People v. Hayes (89) 49 C3d 1260, 1274 [265 CR 132].) On the other hand, if the punishment is reduced or the act decriminalized, the defendant should receive any such ameliorative benefit. (See People v. Rossi (76) 18 C3d 295, 298-99 [134 CR 64].)
CAVEAT II: The applicable CALJIC instructions, are based upon generalized analysis by the FORECITE editors. Additional instructions not identified herein may be implied upon closer analysis in relation to specific cases or fact situations.
[This update contains only those portions of enacted laws potentially affecting the definition of crimes and/or punishment and does not necessarily include all statutes affected by the legislation. NOTE: Legislation which merely increases the punishment for existing crimes is not covered by this update.]
BUSINESS AND PROFESSIONS CODE
Unlicensed Practice of Medicine
AB 1950, Ch. 1085
Amends BP 2052 to include persons who conspire with, or aids and abet another to practice medicine without a license.
SB 1951, Ch. 714
Amended BP 4935 making it a misdemeanor to fraudulently buy, sell or obtain a license to practice acupuncture.
CODE OF CIVIL PROCEDURE
SB 1371, Ch. 71
Amends CCP 269; repeals CCP 274c; adds CCP 271; amends GC 69950; repeals GC 72197; amends PC 190.9 and PC 1539.
CCP 269(a) requires an official reporter to report proceedings in a felony case upon the order of the court, prosecution’s request, or the defense attorney’s request. It was amended to require a reporter to do so at the defendant’s request as well. Additionally, the statute requires provision of a transcript ordered by the court or requested by a party. It was amended to also require provision of a transcript, upon request, to a nonparty who is entitled to the transcript, regardless of whether the nonparty was permitted to attend the proceedings to be transcribed.
CCP 269(c) was deleted, its language incorporated into CCP 271, and amended to permit computer readable transcripts to deviate from the original transcript to the extent that modification is necessary to correct the transcript.
Attorney Work Product
AB 2055, Ch. 1059 [Urgency legislation effective 9/29/2002]
Amended CCP 2018 to provide that if an attorney is suspected of knowingly participating in a crime or fraud there is no work product protection under that section. The exception applies to any official investigation by a law enforcement agency or any proceeding or action brought by a public prosecutor if the attorney’s services were sought or obtained to enable or aid anyone in to commit or plan to commit a crime or fraud. The statute was clarified that nothing in the section is intended to limit an attorney’s ability to request an in camera hearing as provided for in People v. Superior Court (Laff) (2001) 25 C4th 703 [107 CR2d 323].
Definition of "Writing"
AB 2937, Ch. 1073
SB 1962, Ch. 945
EC 250 defining "writings" was amended to include photocopying and transmitting by electronic mail or facsimile. Additionally, it includes any record created by these media, regardless of the manner in which the record has been stored.
SB 2061, Ch. 72
EC 917 was amended to include domestic violence victim-counselor relationships and sexual assault victim-counselor relationships among the privileged relationships.
EC 917(b) was added to provide that any privileged communication that is transmitted electronically does not lose its confidential status for the sole reason that it is communicated by electronic means, as defined, or because persons involved in the delivery, facilitation, or storage of the electronic communication may have access to the content of the communication.
Reference to the electronic transmission of privileged communications in the context of a lawyer-client relationship in EC 952 was deleted in light of EC 917(b).
Personnel Records: Custodial Officers
AB 2040, Ch. 391
Amended EC 1043, EC 1045, EC 1046 and EC 1047 to also apply to custodial officers, as defined in PC 831.5.
Evidence Of Prior Sexual Offenses
AB 2499, Ch. 828
EC 1108(b), which required the prosecution to disclose evidence of other sexual offenses to the defendant at least 30 days before trial or later as the court may allow for good cause, was amended to instead require the prosecution to disclose the evidence in compliance with PC 1054.7
EC 1108(d) was amended to expand the definition of "sexual offense" to include assault with intent to commit specified sexual offenses (PC 220) except assault with intent to commit mayhem.
Public Safety Officials Home Protection Act
AB 2238, Ch. 621
Amended GC 6254.21 to prohibit knowingly posting the home address or telephone number of any elected official, or of the official’s residing spouse or child on the Internet, knowing that the person is such and official and intending to cause imminent GBI that is likely to occur or threatening to cause imminent GBI to that individual. Violation is a misdemeanor unless the posting leads to bodily injury of the official or his or her spouse or child. Nothing in that section is intended to preclude punishment under PC 69, PC 76, or PC 422, or any other provision of law. Also includes "public safety official" in new section GC 5254.24 to the list of elected or appointed officials covered by the act.
PC 146e was amended to include public safety officials within the list of persons covered by that section. The section now applies to those who make this disclosure "with the intent or threat to inflict imminent physical harm in retaliation for the due administration of the laws."
HEALTH AND SAFETY CODE
SB 184, Ch. 1005
Added HS 110423, HS 110423.2, HS 110423.4, HS 11423.6 and HS 110423.8
New HS 11423 prohibits sale or distribution of dietary supplements containing ephedrine group alkaloids or steroid hormone precursors unless the product label clearly and conspicuously contain specified warning language. Violation is a misdemeanor pursuant to HS 111825.
New HS 110423.2 makes it a misdemeanor to sell to, transfer to, or otherwise furnish a person under 18 years of age with dietary supplements containing ephedrine group alkaloids or steroid hormone precursors. A seller must request valid identification from any person attempting to purchase such supplements if that person reasonably appears to be under 18. Retail clerks who fail to request identification are not guilty of a misdemeanor unless the clerk is a willful participant in an ongoing criminal conspiracy to violate these provisions.
New HS 110423.6 provides for exceptions for retail establishments violating the above statutes, if certain conditions are met. However, they may still be in violation if three or more violations occurs within a 12-month period.
New HS 110423.4 exempts licensed health care practitioners who prescribe or dispense herbs within the scope of their practice and in the course of patient treatment.
Therapeutic Abortion Act
SB 1301, Ch. 385
Amended BP 2253; repealed HS 123400; HS 123405; HS 123407; HS 123410; HS 123415 and HS 123430; added HS 123460, HS 123462, HS 123464, HS 123466 and HS 123468.
Amended BP 2253 to extend criminal liability to a person who performs or assists in performing a nonsurgical abortion without the appropriate licensing or certification.
Refusal To Arrest
AB 1835, Ch. 526
PC 142, making it a crime for any peace officer having the authority to receive or arrest a person to willfully refuse to do so, was amended to provide that it is not applicable to citizen’s arrests under PC 837.
False Report Of Emergency
SB 2057, Ch. 521
PC 148.3 makes it a felony if GBI or death occurs to any person as a result of a response to a false report of an emergency. The statute was amended to provide that, in order to be guilty of a felony, the person must know or should have known that the response to the false report is likely to cause death or GBI.
Additionally, the statute expanded the misdemeanor offense of knowingly making a false emergency report to public officials that "results in a response by public officials in an emergency vehicle" to include a response by public officials in an emergency aircraft or vessel.
SB 510, Ch. 608 [Urgency legislation effective 9/17/2002]
Added PC 171.5 making it a misdemeanor for any person to possess within any "sterile area" of an airport (as defined) any specific weapon, replica weapon, ammunition, or other specified items such as box cutters or straight razors.
Criminal Gangs: Asset Forfeiture
AB 1990, Ch. 991
Amends PC 186.2 to allow law enforcement agencies to seize the assets of convicted gang members by providing that a single violation of PC 186.22(a) (participating in a criminal street gang) or a single felony subject to a gang enhancement pursuant to PC 182.22(b) constitutes criminal profiteering activity.
Weapons Of Mass Destruction
SB 1287, Ch. 611 [Urgency legislation effective 9/17/2002]
AB 1838, Ch. 606 [Urgency legislation effective 9/17/2002]
PC 189 was amended to include murder by means of a weapon of mass destruction as defined in PC 11417. PC 11417 was amended to include restricted biological agents, or an aircraft, vessel or vehicle that is used as a destructive weapon within the definition of "weapons of mass destruction." "Used as a destructive weapon" is defined as use with the intent of causing widespread GBI or death by causing a fire, explosion or the release of a chemical, biological or radioactive agent.
PC 11418 was amended to increase the punishment for unlawful possession, development, manufacture, production, transfer, acquisition or retention of weapons of mass destruction.
PC 11418.1 was added to provide misdemeanor punishment for any person who gives, sends, or causes to be sent any false or facsimile weapon of mass destruction with the intent to cause another to fear for his or her own safety or the safety of others.
PC 11418.5, concerning threats to use weapons of mass destruction which causes someone to be in sustained fear of his or her own safety or the safety of his or her immediate family, was amended to expand the definition of evidence showing "sustained fear" to include any isolation, quarantine or decontamination effort.
PC 11419 was amended to increase punishment and to add to the list of restricted biological agents any biological product that is substantially similar to the substances already prohibited by that section.
CJ Instructions Affected: CJ 8.12; CJ 8.21; CJ 8.26; CJ 8.27; CJ 8.32.
Gross Vehicular Manslaughter While Intoxicated: Proof Of Priors
AB 2471, Ch. 622
Added PC 191.5(g) which specifies that in order for the penalties in subdivision (d) to apply, the existence of any prior shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.
Sex Offenses: Unconscious Victims
SB 1421, Ch. 302
Amends PC 243.4, PC 261, PC 286, PC 288a and PC 289.
PC 261 (rape), PC 286 (sodomy), PC 288a (oral copulation) and PC 289 (sexual penetration) provides felony punishment for sexual acts committed against a victim who is unconscious of the nature of the act and the perpetrator is aware of the victim’s unconsciousness. SB 1421 expanded the definition of "unconscious of the nature of the act" to include conditions in which the victim was not aware of the essential characteristics of the act due to the perpetrators’s fraudulent representation that the sexual act served a professional purpose.
PC 243.4, defining sexual battery, was amended to include the act of touching an intimate part of another for sexual purposes when the victim is unconscious of the nature of the act due to the perpetrators’s fraudulent representation that the touching served a professional purpose.
CJ Instructions Affected: CJ 10.02; CJ 10.23; CJ 10.33; CJ 1037
Terrorists: DNA Collection
AB 2105, Ch. 160 [Urgency legislation effective 7/12/2002]
Persons convicted of terrorist activity in violation of PC 11418, PC 11419, a felony violation of PC 11418.5 or an attempt to commit these crimes are now required to provide blood and saliva samples along with thumb and palm prints for the state DNA database, pursuant to amended PC 296.
DNA Collection: Use of Force
SB 1242, Ch. 632 [Urgency legislation effective 9/18/2002]
Amended PC 298.1 permits law enforcement, custodial or correctional personnel to use "reasonable force," as defined, to collect blood or saliva specimens, or thumb or palm prints, from persons who refuse to comply with notice to do so.
AB 2965, Ch. 624
Added PC 337t, PC 337u, PC 337v, PC 337w, PC 337x, PC 337y, PC 337z making various acts of cheating in the playing of gambling games unlawful.
AB 1828, Ch. 102
Added PC 383c making it a misdemeanor for a person, who with intent to defraud, to sell or expose for sale, any meat or meat preparations that are falsely represented to be either halal or prepared in compliance with Islamic religious requirements.
Burglary Tools: Ceramic Or Porcelain Spark Plugs
AB 2015, Ch. 335
PC 466 was amended to include ceramic or porcelain spark plug chips or pieces to the list of prohibited burglary tools. (See FORECITE F 18.75 n1.)
Payment Card Theft
SB 1259, Ch. 861
Added PC 502.6 making it a misdemeanor to knowingly, willfully and with intent to defraud or deceive, possess or use a device designed to scan or reencode information from or to the magnetic strip of a payment card, such as a credit or debit card. The section also provides for the seizure and destruction of scanning or reencoding devices owned by the defendant and used in violation of the section, as well as the forfeiture of other computer equipment used to store data obtained in violation of the section.
Obtaining False DMV-Issued Documents
AB 1155, Ch. 907
Added PC 529.7 making it a misdemeanor to obtain, or assist another person in obtaining, a driver’s license, identification card or other official document issued by the DMV, with knowledge that the person obtaining the document is not entitled to it.
Identity Theft: Personal Identifying Information
SB 1254, Ch. 254
Amended PC 530.5 and PC 530.8. PC 530.5 was amended to expand the definition of "personal identifying information" to include the following identification numbers and other data: health insurance, taxpayer and school identification numbers; state or federal drivers license or identification numbers; checking account number, PIN or password; alien registration and passport numbers; date of birth; unique biometric data including fingerprints, facial scans, voice prints, retina or iris images, or other unique physical representation; unique electronic data including identification number, address, or routing code, telecommunication identifying information or access device; and information contained in birth or death certificates.
New PC 530.5(c) makes it a misdemeanor to acquire, transfer or possess personal identifying information with the intent to defraud.
CJ Instructions Affected: CJ 15.60
AB 2145, Ch. 1134
PC 538c, making it a crime of theft of advertising services for a person to insert or attach an unauthorized advertisement in a newspaper, was amended to exclude newspaper distributors who is directed to insert the advertisement by a person or company supplying the newspapers, if the distributor is unaware that the advertisement is unauthorized. The section was also amended to provide that a conviction under the statute does not constitute a conviction of petty theft.
Graffiti: Etching Cream
AB 1344, Ch. 523
Amended PC 594.1 making it a misdemeanor for a minor to purchase or possess etching cream, as defined, for the purpose of defacing property. It is a misdemeanor for a person other than a supervising parent, an instructor, or an employer to sell or furnish etching cream to a minor
Unauthorized Presence On School Campus
AB 2593, Ch. 343
PC 626.7, which makes it a misdemeanor for failure to leave, or reentry within either seven or thirty days, of a public school campus, as specified, was amended to delete the time requirements. Instead, the violation is defined as failing to leave or returning without following the posted requirements to contact the administrative offices of the campus. The statute is further amended to limit the violation to entry outside the common areas where public business is conducted.
Interception of Communications
AB 74, Ch. 605
Amended PC 629.51 to add definitions for "wire communication" and "aural transfer" to the terms relating to the interception of electronic communications.
Amended PC 629.52, the list of offenses which may be subject to an ex parte order authorizing interception of specified electronic communications, to include several felony offenses involving a destructive device or relating to weapons of mass destruction, and attempts to commit any of the listed offenses.
AB 74 made additional amendments to PC 629.50, PC 629.51, PC 629.52, PC 629.56, PC 629.60 and PC 629.70; added PC 629.53 and PC 629.61 concerning the interception of electronic communications. As amended these sections sunset on January 1, 2008.
SB 1320, Ch. 832
Amends PC 646.9 to delete the criterion that a defendant must have intended to cause fear in a victim and instead that a defendant knew or reasonably should have known that his or her conduct would place the victim in reasonable fear. The definition of "course of conduct" was revised to mean "two or more acts" rather than a "pattern." The definition of "credible threat" was revised to exclude constitutionally protected activities from its scope.
CJ Instructions Affected: CJ 9.16.1, CJ 9.16.2, CJ 16.480
Multiple Sex Crimes: Venue
AB 2252, Ch. 194
PC 784.7, which provides that if a defendant commits more than one instance of domestic violence, child abuse, stalking, or specified sex offenses against the same victim in multiple jurisdictions, actions may be brought in any jurisdiction where at least one of the offenses occurred was amended to provide that any properly joinable offense may be brought there as well. The statute was also amended to add assault with intent to commit sex-related offenses and aggravated sexual assault of a child to the list of specified offenses.
PC 784.7 was further amended to eliminate the requirement that the victim of the specified sex offenses be the same, and to specify that for these sex offenses, the provisions of PC 784.7 are now subject to a hearing where the prosecution must present written evidence that all prosecutors with jurisdiction over the offenses agree to the venue. If there is a jurisdiction where there is no such agreement, charged offenses are to be returned to that jurisdiction.
Identity Theft: Jurisdiction
AB 1773, Ch. 908
Added PC 786(b) to provide that a criminal action for identity theft (PC 530.5) may be filed in the county where the theft occurred or in the county where the information was used for an illegal purpose. Additionally, when multiple offenses involving the same defendant and the same personal identifying information of a single victim occur in multiple counties, any one of those counties is a proper jurisdiction for all of the offenses. When multiple offenses are filed in one county, the court is to hold a hearing to determine whether the case should proceed in that county, or whether any counts should be severed. The court is to consider the following in making that determination: (1) the location and the complexity of the likely evidence; (2) where the majority of the offenses occurred; (3) the rights of the defendant and the prosecution; and (4) the convenience or hardship to the victim and witnesses. The prosecutor filing the complaint must also present evidence that the prosecuting attorney in each county where any of the charges could have been filed has agreed that the case should proceed in the county of filing.
AB 2106, Ch. 64 [Urgency legislation effective June 12, 2002]
Added PC 787 to provide that when multiple offenses relating to weapons of mass destruction (PC 11418, PC 11418.5, PC 11419) occur in more than one jurisdictional territory, and the offenses are part of a single scheme or terrorist attack, jurisdiction over any of those offenses is in any county where at least one of the offenses occurred.
Annoying or Molesting Minor: Statute of Limitations
AB 2499, Ch. 828
Pursuant to PC 802(b), the statute of limitations for the prosecution for misdemeanor offenses of annoying or molesting a minor under 14 years of age (PC 647.6 or former PC 647a) has been extended to 3 years.
Attorney Work Product: Statute Of Limitations
AB 2055, Ch. 1059 [Urgency legislation effective 9/29/2002]
Added PC 803(j) which specified that for any crime, if the proof depends substantially on evidence that was seized under a warrant but which is unavailable to the prosecution due to specific procedures relating to claims of evidentiary privilege of attorney work product, the statute of limitations is tolled from the time of the seizure until final disclosure of the evidence to the prosecution. The evidence must be unavailable due to the procedures specified in People v. Superior Court (Laff) (2001) 25 Cal.4th 703 [107 CR2d 323], People v. Superior Court (Bauman & Rose) (1995) 37 Cal.App.4th 1757 [44 CR2d 734], or PC 1524(c).
Federal Law Enforcement Officers: Power of Arrest
SB 1852, Ch. 545
PC 830.8 was amended to clarify that federal criminal investigators and law enforcement officers may exercise the powers of arrest of a state peace officer when probable cause exists to believe that a public offense involving immediate danger to persons or property has just occurred or is being committed.
Warrantless Arrests: Elder Abuse
AB 2826, Ch. 534
PC 836(d), authorizing a peace officer to arrest a person without a warrant when there is probable cause to believe that the person has committed a domestic violence offense and the arrest is made as soon as the probable cause arises, has been amended to include an assault or battery against a person 65 years of age or old and who is related to the suspect by blood or legal guardianship.
Enhancements: General Provisions
AB 2173, Ch. 126
Amended PC 1170.1 to specify that any enhancements be in addition to, and consecutive to, the principal term. Additionally, if an enhancement is punishable by one of three terms, the court must now impose the middle term unless there are circumstances in aggravation or mitigation, and must state the reasons on the record for imposing other than the middle term. The PC 1170.1(d) enhancement rules are not applicable to indeterminate sentences imposed pursuant to PC 1168.
AB 2173, Ch. 126
PC 1170.1(g), allowing imposition of only the greater enhancement when two or more enhancements may be imposed for the infliction of GBI in the commission of a single offense, was amended to clarify that the enhancement must relate to an offense against the same victim.
PC 12022.7(g), which required that enhancements for personal infliction of GBI be charged in the accusatory pleading and be admitted or found true, was amended to delete the requirement, since the enhancements are covered by the general "pled and proved" requirement of PC 1170.1(e).
The specification of low, middle and high terms for certain enhancements that require imposition of the middle terms unless there are aggravating and mitigating circumstances, and requirement that the court state the reason for choosing other than the middle term have been deleted from the GBI enhancements in PC 12022.7(d) and (e). The legislative intent was to replace the deleted language with the new general provisions governing imposition of enhancements in PC 1170.1(d).
Language requiring that enhancements be imposed in addition to and consecutive to the offense of which the person has been convicted is deleted from the GBI enhancements in PC 12022.7(a) through (e). The legislative intent is that the same language in PC 1170.1(d) shall apply to these enhancements.
Child Witness: Closed-Circuit TV
SB 1559, Ch. 96
PC 1347 provides that, effective January 1, 2003, testimony by minors via closed-circuit TV, is only allowed if an alleged sexual offense was committed with or on the minor under 13 years of age. PC 1347 was amended to authorize minors to testify under the circumstance described above or if the minor was a victim of a violent felony as defined in PC 667.5(c). The version of the statute which was to become operative January 1, 1003 was repealed.
Attorney Work Product: Search Warrants
AB 2055, Ch. 1059 [Urgency legislation effective 9/29/2002]
Amended PC 1524 to provide that no claim of attorney work product is to be sustained where there is probable cause to believe that the lawyer is engaging in or has engaged in criminal activity related to the documentary evidence for which a warrant is requested. An exception applies if it is established at the hearing with respect to the evidence seized under the warrant that the services of the lawyer were not sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud. The statute was further amended to indicate that if an item is taken to court for a hearing, any limitations of time, as specified in Chapter 2 or Title 3 of Part 2 of the Penal Code, are tolled from the time of the seizure until final conclusion of the hearing, including any associated writ or appellate proceedings.
Search Warrants: Electronic Communication Service Providers
AB 2055, Ch. 1059 [Urgency legislation effective 9/29/2002]
SB 1980, Ch. 864
Added PC 1524(a)(7) which authorizes the issuance of a search warrant when a electronic communication service provider or remote computing service has records or evidence, as specified in new PC 1524.3. In order to issue such warrant, a showing must be made that: (1) the property was stolen or embezzled, constituting a misdemeanor, or that (2) the property and things are in the possession of a person who has the intent to use them as a means of committing a misdemeanor offense, or are in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery.
PC 1524.3 specified that a communication service provider or remote computing service must disclose to a governmental prosecuting or investigating agency the name, address, local and long distance toll billing records, and the types of services the subscriber utilized, as well as other specified information when the government agency is issued a search warrant under PC 15249a)(7). The agency receiving the information is not required to provide notice to the subscriber or customer. A court may quash or modify the warrant on a motion by the service provider if the information or records are unusually voluminous or compliance would otherwise cause under burden on the provider.
Hearings on Motions To Suppress: Exclusion Of Witnesses
AB 1590, Ch. 401
Added PC 1538.5(c)(2) to provide that, at hearing on the motion, on the motion of either party, the court must exclude potential and actual witnesses who have not testified, order witnesses not to converse with one another, and, where feasible, order that such witnesses be separated until they are examined. Additionally, the court must, on the motion of either party, hold a hearing on the record to determine if the person sought to be excluded is actually excludable under the statute. Investigating officers, defense investigators and officers having custody of persons brought to court are not subject to exclusion pursuant to PC 1538.5(c)(4).
Child Abuse: Reporting By Clergy Member Or Custodian Of Records
AB 299, Ch. 936 [Urgency legislation effective 9/27/2002]
Amended PC 11165.7 to provide that any custodian of records of a clergy member, as specified, is included as a mandated reporter. Amended PC 11166 concerning reporting requirements.
AB 352, Ch. 58
PC 12001.1 was amended to revised the definition of "undetectable knife" to include a knife or other stabbing instrument that is not detectable by a magnetometer that is set at a standard calibration.
Weapons: Hard Plastic Knuckles
SB 1689, Ch. 208
Added PC 12020.1 making it a misdemeanor to commercially manufacture or to knowingly import, possess, or offer for commercial sale any hard plastic knuckles as defined in the statute.
AB 1273, Ch. 126
PC 12022.5(c), which imposes an enhancement of 3, 4 or 10 years for personal use of a firearm in the commission of specified offenses, has been amended to delete the enhancement, since the conduct is subject to the same punishment under PC 12022.5(a) (enhancement for personal use of firearm in commission of a felony). Additionally, a new provision has been added to forbid the court from striking a PC 12022.5 allegation, notwithstanding PC 1385.
PC 12022.5(d) was amended, deleting application of the enhancement to PC 245(a)(2) and PC 245 (assault with deadly weapon that is a firearm), and replacing those provisions with a requirement that the enhancement be imposed for any violation of PC 245 if a firearm is used.
PC 12022.5(a)(2), PC 12022.5(b)(1), PC 12022.9(b)(1) and PC 12022.9(b)(2), imposing specified enhancements for the use of a firearm in carjackings and drive-by shootings, were amended to delete the enhancements, since PC 12022.53 imposes a greater enhancement for the conduct. The repeal of the enhancements shall not be given any retroactive effect.
Language in PC 12022(c) and (d) specifying low, middle and high terms for enhancements, requiring imposition of the middle term unless there are mitigating or aggravating circumstances and requiring the court to state its reasons for choosing other than the middle term has been deleted. The legislative intent is to replace the deleted language with the new general provisions in PC 1170.1(d).
Language in PC 12022(a)(1), (b)(1) and (c), PC 12022.5(a)(1) and (b)(2), PC 12022.53(b), (c) and (d), and PC 12022.9(a) requiring that enhancements be imposed in addition to and consecutive to the offense for which the person has been convicted was deleted. The legislative intent is that the same language amended in PC 1170.1(d) shall now apply to those sections.
Domestic Violence: Deadly Weapon Seizure
SB 1807, Ch. 833
Amends PC 12028.5(b) to require law enforcement officers at the scene of a domestic violence dispute to confiscate any deadly weapon discovered pursuant to a consensual search, or any other lawful search when necessary for the protection of the officer or other persons present. It is further amended to require that the receipt given for such weapon contain information regarding the time limit for recovering the weapon. PC 12028.5 was further amended concerning time limits, hearings and burden of proof regarding recovery of confiscated weapons.
SB 1670, Ch. 917
AB 2902, Ch. 912
Added PC 12088.15. PC 12125, which makes it a misdemeanor to manufacture, sell, give or lend and unsafe handgun, formerly provided an exemption for the sale or purchase of a concealed weapon for persons who were retired law enforcement officers. That section was amended to delete that exemption.
Definition Of Domestic Violence
AB 2826, Ch. 534
PC 13700 was expanded to include abuse against any minor involved in a spousal, dating or similar relationship with the suspect.
Speed Contests; Reckless Driving
SB 1489, Ch. 411 [Urgency legislation effective 9/9/2002]
VC 23109(a) permits the arrest and impoundment of vehicles where the driver is engaged in a speed contest on a highway. The statute was amended to extend the provisions to include those persons engaged in reckless driving on a highway, reckless driving in any offstreet parking facility or an exhibition of speed on a highway.
VC 23109(c) was amended to allow the early release of an impounded vehicle if the registered owner was neither the driver of, nor a passenger in, the vehicle at the time of the alleged violation, or was unaware that the driver was using the vehicle in violation of VC 23109.
WELFARE AND INSTITUTIONS CODE
AB 444, Ch. 1022 [Urgency legislation effective 9/28/2002]
Amended WI 10980(c) making it unlawful to fail to disclose a material fact in order to obtain aid from public social service programs. The false statement or other act must be done willfully and knowingly, with the intent to deceive.