FORECITE’S 2004 Legislative Update (leg 04)
[Legislation effective January 1, 2004 unless effective earlier as urgency legislation where noted. This includes all legislation passed from January 2, 2003 through January 1, 2004.] 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
Sex Offenders: Physicians And Surgeons
AB 236, Ch. 348
Amended BP 2221 to prohibit any person from being licensed as a physician or surgeon under the Medical Practice Act who is required to register with the police as a sex offender. It further requires the Medical Board of California to promptly revoke the license of any person who is subject to or becomes subject to that registration requirement. There is an exception if the registration requirement is solely based on a misdemeanor conviction of PC 314 (indecent exposure).
Added BP 2232 which authorizes the revoked licensee, 5 years after the revocation and 3 years after termination of parole or probation, to petition the superior court for a license reinstatement hearing and the procedures for doing so.
Unsolicited E-Mail Advertising
SB 186, Ch. 487
Amends BP 17538.45, adds BP 17529, BP 17529.1-BP 17529.9, and repeals BP 17538.4 to generally prohibit persons or entities from initiating or advertising in unsolicited e-mail advertisements to or from California. However, this law was preempted by federal legislation (Pub. Law No. 108-187) which supercedes any state law that regulates the use of e-mail except to the extent that any such law “prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.”
BP 17529.5 prohibits falsity or deception, providing that it is unlawful for any person or entity to advertise using a commercial e-mail advertisement either sent from or to a California e-mail address if 1) the advertisement contains or is accompanied by falsified, misrepresented, obscured, or forged header information (with specified exceptions); 2) the advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message. Violation of the provisions is a misdemeanor.
Minors: Providing Alcohol And/Or Controlled Substances
AB 1301, Ch. 625
Added BP 25658.2 making it a misdemeanor for a parent or legal guardian who knowingly permits his or her child, or a person in the company of the child, or both, who are under the age of 18 years, to consume an alcoholic beverage or use a controlled substance at the home of the parent or legal guardian if all of the following occur: (1) as the result of the consumption of an alcoholic beverage or use of a controlled substance at the home of the parent or legal guardian, the child or other underage person has a blood-alcohol concentration of 0.05 percent or greater, as measured by a chemical test, or is under the influence of a controlled substance; (2) the parent knowingly permits that child or other underage person, after leaving the parent’s or legal guardian’s home, to drive a vehicle; (3) that child or underage person is found to have caused a traffic collision while driving the vehicle.
CODE OF CIVIL PROCEDURE
Jury Duty: Failure To Appear
AB 1180, Ch.359
Under existing law, a prospective trial juror who has been summoned for jury service and fails to attend or respond to the court may be compelled to attend. In addition, after an order to show cause hearing, the court may find the prospective juror in contempt of court, punishable by fine, incarceration, or both. CCP 209 has been amended to permit the court, in lieu of imposing penalties
for contempt, to impose reasonable monetary sanctions of no more than $250 for a first violation, $750 for a 2nd violation, and $1,500 for the 3rd and any subsequent violation, upon a prospective juror who has failed to respond and who has not been excused, after first providing the prospective juror with notice and an opportunity to be heard, as specified. It also requires the Judicial Council to provide a procedure for prospective jurors against whom a sanction has been imposed by default to move to set aside the default.
Attorney-Client Privilege: Disclosure To Prevent Criminal Acts
Ab 1101, Ch. 765 [Operative 7/1/2004]
Existing law, with certain exceptions, makes privileged any confidential communication between a lawyer and a client and provides an exception to the privilege if the lawyer reasonably believes that disclosure of a confidential communication is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm. EC 956.5 was amended to delete the reference to the client, thus making the provision applicable to criminal acts by any person, not just the client. The attorney’s belief must be reasonable. BP 6068 was likewise amended to allow an attorney to disclose confidential information, to the extent reasonably necessary, to prevent a criminal act that he or she reasonably believes is likely to result in death or substantial bodily harm to an individual.
Child Custody: Abduction
AB 1516, Ch. 52 [Urgency legislation effective 7/14/2003]
Amends Fam C 3048 to provide that state law incorporating the Synclair-Cannon Child Abduction Prevention Act of 2002 does not affect the applicability of the provision that immunizes persons with a right to custody under certain circumstances from the crime of taking, enticing away,
keeping, withholding, or concealing a child and maliciously depriving a lawful custodian of a right to custody, or a person of a right to visitation.
Peace Officers: Convictions
Sb 221, Ch. 297
Existing law prohibited any person who has been convicted of a felony from holding office as a peace officer or being employed as a peace officer. Gov C 1029 was amended to also disqualify any person from holding office as a peace officer or being employed as a peace officer who, after January 1, 2004, has been convicted of a crime based on a verdict or finding of guilt of a felony by the trier of fact, or upon entry of a plea of guilty or nolo contendere to a felony, as specified. A plea of guilty to a felony pursuant to a deferred entry of judgment program, as specified, would not alone disqualify a person from being a peace officer unless a judgment of guilty was entered. A person who pleads guilty or nolo contendere to, or who is found guilty by the trier of fact of, an alternate felony-misdemeanor drug possession offense and successfully completes a program of probation as
specified would not be disqualified to be a peace officer solely on the basis of that plea or finding if the court deems the offense to be a misdemeanor, or reduces the offense to a misdemeanor.
HEALTH AND SAFETY CODE
Chemical Reporting Requirements
SB 276, Ch. 369 [Urgency legislation effective 9/12/2003]
Amended HS 11100, HS 11100.1, HS 11104, HS 11106, HS 11107 and HS 11107.1 to clarify reporting and tracking requirements for manufacturers, sellers and users of specified chemicals that can be used to make controlled substances. The measure also added red phosphorous to the list of chemicals in HS 11100 and increased punishment for specified violations of the statutes.
SB 151, Ch. 406
Among other amendments to the Health and Safety Code, added HS 11162.6 to provide misdemeanor penalties for persons who counterfeit or fraudulently produce controlled substance prescription forms, and for persons who knowingly possess, obtain or attempt to obtain counterfeit prescription forms under false pretenses or by fraudulent means.
Medical Marijuana: Voluntary Identification Card Program
SB 420, Ch.875
Added Article 2.5, commencing with HS 11362.7, to Chapter 6, Division 10 of the Health and Safety Code. In an effort to facilitate prompt identification and avoid unnecessary arrests and/or prosecutions, the measure establishes a voluntary program for the issuance of identification cards to patients authorized to use medical marijuana and their primary care givers. However, the program is voluntary and qualified patients need not possess the card to claim protection under the Compassionate Use Act. The measure provides immunity from arrest for patients or caregivers who take part in the ID card program, implemented by county health departments. Under HS 11362.71, person possessing a valid ID card is not subject to arrest for possession, transportation, delivery or cultivation of the drug, as specified, unless there is reasonable cause to believe that the information on the card is false, or has been obtained by fraud, or the person is otherwise in violation of the law. Qualified patients and caregivers are not subject to criminal liability under HS 11357, HS 11358, HS 11359, HS 11360, HS 11366, HS 11366.5 or HS 11570 as long as they do not possess or cultivate more marijuana than the amounts specified in HS 11362.77.
HS 11362.78 requires state and local law enforcement officers to accept an ID card unless there is reasonable cause to believe that the information on the card is fraudulent or the card is being used fraudulently. The sections also concerns where medical marijuana may be used.
HS 11362.795 concerns the use of medical marijuana while on probation or release on bail.
Additional provisions of the statutes concern the valid term of use of the ID card, and criminal penalties for various fraudulent or improper activities with regard to the ID card.
CJ Instructions Affected: CJ 12.08; CJ 12.09.1; CJ 12.20; CJ 12.21; CJ 12.22; CJ 12.22.5; CJ 12.23; CJ 12.24.1; CJ 16.030; CJ 16.035
Manufacture Of Methamphetamine: Sentence Enhancement
AB 233, Ch. 620
Amended HS 11379.6 to make it an aggravating factor at sentencing of a person convicted of manufacturing methamphetamine if a child under 16 resided in the structure where the methamphetamine was manufactured.
Possession Of Chemicals Used To Manufacture Controlled Substances
AB 158, Ch. 619
Amended HS 11383 to delete the impermissible mandatory presumption in the previous law that deemed possession of the optical, positional, or geometric isomer of any of specified compounds as possession of the derivative substance. Revised the provision by adding the requirement that the possession of specified isomers be accompanied by the intent to manufacture any of those compounds. Additionally, the amendment deleted the impermissible mandatory presumption in the previous law that deemed possession of immediate precursors sufficient for the manufacture of methylamine and other specified substances, as possession of the derivative substance. Revised the provision by adding the requirement that the possession of immediate precursors, as specified, be accompanied by the intent to manufacture methamphetamine. The amendment also deleted the impermissible mandatory presumption in the previous that deemed possession of essential chemicals sufficient to manufacture hydriodic acid with intent to manufacture methamphetamine, as possession of hydriodic acid.
HS 11383 was also amended to criminalize possession of a reducing agent, or any product containing a reducing agent, thus including agents other than hydriodic acid.
CJ Instructions Affected: CJ 12.09.2; CJ 12.09.3; CJ 12.04
Crime Victims: Absences From Work For Judicial Proceedings
SB 478, Ch. 630
Added Labor C 230.2 to require employers to allow an employee who is a victim of a crime, as defined, or certain persons who are related to a crime victim, to be absent from work in order to attend judicial proceedings related to the crime. Employers are prohibited from discharging or in any
manner discriminating against an employee, in compensation or other terms, conditions, or privileges of employment, including, but not limited to the loss of seniority or precedence, because the employee
is absent from work pursuant to this statute, and employees are permitted to file complaints with the Division of Labor Standards Enforcement for violations of the statute.
Securities And Commodities Laws Violations
SB 434, Ch. 876
Adds PC 131, amends Corp C 25533, Corp C 25533.5, Corp C 29544, and adds Gov C 12660 concerning various fraudulent securities and commodities transactions. Specifically, PC 131 prohibits any of the following during an investigation into specified corporate misconduct: 1) knowingly and willfully falsifying, misrepresenting or concealing a material fact; 2) making any materially false, misleading or fraudulent representation; 3) knowingly and willfully procuring or causing another to violate the statute. Violation is a misdemeanor.
Organized Crime: Beverage Container Recycling Program
SB 968, Ch. 125
Amended PC 186.2 to include any offenses related to fraud or theft against the state’s beverage container recycling program, as specified. The definition of “organized crime” in the statute was amended to include reference to the beverage container recycling program.
SB 450, Ch. 23
Amended PC 207 to define the amount of force required to kidnap an unresisting infant or child as the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or illegal intent, codifying the holding in In re Michelle D. (2002) 29 C4th 600.
CJ Instructions Affected: CJ 184.108.40.206; CJ 9.50; CJ 9.52; CJ 9.52.1;
Assault And Battery: Code Enforcement Officers
SB 919, Ch. 274
Amended PC 241 and PC 243 to include “code enforcement officers” to the list of specified officers or persons to which the provisions apply.
CJ Instructions Affected: CJ 9.22; CJ 16.100; CJ 16.101
Assault And Battery
AB 187, Ch. 138
Added PC 241.8 and PC 243.10 creating misdemeanor offense for any assault or battery perpetrated against a member of the U.S. Armed Forces, which occurs because of the victim’s service in the armed forces. If there are multiple concurrent motives, the prohibited bias must be a substantial factor in bringing about the assault or battery.
Professional Sporting Events
AB 245, Ch. 818
Added PC 243.83 prohibiting any person attending a professional sporting event from throwing any object on or across a court or field of play, with the intent to interfere with play or distract a player. The statute also prohibits persons from entering upon the court or field of play without permission, as specified, during an event. While owners of sports facilities are required to provide notice of these provisions, failure to do so is not a defense to a violation of the statute. Violation is an infraction.
AB 134, Ch. 262
Amended PC 273.5(e) to provide for enhanced penalties for convictions of domestic violence occurring within seven years of previous convictions of PC 273.5(a), PC 243(d), PC 243(e), PC 243.4, PC 244, PC 244.5, or PC 245, as specified.
Sex Offender Registration
AB 1313,Ch. 634 [Urgency legislation effective 9/30/2003]
SB 879, Ch. 540
SB 356, Ch. 538
Amended PC 290, specifying persons required to register as sex offenders, to add persons who have been convicted of PC 311.1 (sale or distribution of obscene matter depicting person under 18 years of age) and persons convicted of “any statutory predecessor that includes all elements” of the offenses listed in PC 290 to the list of persons who must register.
PC 290.4 (California’s version of Megan’s Law) was amended to extend the repeal date to January 1, 2007.
Sex Offenders: Parole/Probation Registration Requirements
AB 1098, Ch. 245
Amended PC 290.85 to also require probationers who must register as sex offender to provide proof of registration and annual updates and revisions of the registration information to his or her probation officer. Proof of changes or updates to the registration information must be made within 5 working days as long as the defendant is under supervision of a probation officer. PC 290.85 was further amended to define “proof of registration” and to provide that the probation officer or parole agent must inform the sex offender of the duties under PC 290.85 within a specified time period. Law enforcement agencies must provide the proof of registration to the probationer/parolee free of charge.
Gambling Control Act
AB 278, Ch. 756
Amended PC 337j making it a misdemeanor to operate or conduct any controlled game, as defined, without the required licenses. The definition of “Controlled game” is amended to include any poker or Pai Gow game, and any other game played with cards or tiles, or both, and approved by the Division of Gambling Control.
Elder Or Dependent Adult Abuse
AB 1131, Ch. 543
Amended PC 368 to expand the law relating to theft and embezzlement against and elder or dependent adult to include forgery, fraud, or identity theft by a caretaker or other person.
AB 1455, Ch. 246
Amended PC 417.2. The exemption for instruments that expel a metallic projectile, such as a BB or pellet, was revised to exempt an instrument that expels any projectile not exceeding 6 mm caliber.
Similar changes were made to PC 12001, specifying the definition of BB device for the purposes of PC 12551 (prohibiting sale of BB device to a minor) and PC 12552 (furnishing BB device to minor without permission of parent or guardian).
CJ Instructions Affected: CJ 16.292
Destruction Of Wireless Telephone
AB 836, Ch. 143
Adds PC 591.5 to provide that anyone who unlawfully and maliciously removes, injures, destroys or damages any wireless communication device with the intent to prevent the use of the device to summon assistance or notify law enforcement or any public safety agency is guilty of a misdemeanor.
SB 732, Ch. 256
Amended PC 597b, PC 597c, PC 597i, and PC 597j to increase fines and penalties involving convictions for cockfighting. PC 597b was amended to provide that aiding and abetting in a cockfight “shall consists of something more than merely being present or a spectator” at a place where cockfighting is occurring.
SB 993, Ch. 805
AB 1263, Ch. 361
AB 936, Ch. 355
Amended PC 602 to expand the list of acts constituting trespass. PC 602(h) prohibits entering lands owned by another, without permission, where signs forbidding trespass are displayed, and whereupon animals are raised for human consumption. The statute further prohibits the injuring or carrying away of such animals, as well as removing or damaging stakes, marks, fences or signs designating the boundaries of such lands.
PC 602(v) prohibits intentionally avoiding screening and inspection of one’s person and accessible property when entering or reentering the sterile area of an airport. Any violation which results in an evacuation of the airport terminal and causes delays or cancellations of flights is punishable as a misdemeanor.
PC 602(x) prohibits knowingly entering or remaining in a neonatal unit, maternity ward or birthing center located in a hospital or clinic without lawful business, under specified circumstances.
Protective/Restraining Orders: Possession Of Firearms
SB 238, Ch. 499
SB 226, Ch. 498
AB 1290, Ch. 495
Amended PC 646.91 to prohibit persons who are the subject of ex parte emergency protective orders from owing, possessing, purchasing, receiving or attempting to purchase or receive firearms while the order is in effect. The emergency protective order must contain a statement informing the subject of the order of the prohibition.
CCP 527.6, CCP 527.8, PC 136.2 and WI 15657.03 were also similarly amended with the above prohibitions while the order is in effect. However, the prohibition does not apply in elder or dependent adult abuse cases that consist solely of financial abuse, not involving force, threats, harassment, intimidation, or any other form of abuse. The court must order persons subject to such orders to relinquish any firearms owned or possessed in accordance with CCP 527.9. Violations of the prohibition are punishable under PC 12021(g), but that statute does not apply unless the copy of the restraining order personally served on the restrained person contains notice of the prohibition and penalties for violation, or the court has provided actual verbal notice of the prohibition and penalties.
Motion Picture Recording
SB 1032, Ch.670
Added PC 653z, prohibiting the operation of a recording device while a motion picture is being shown, for the purpose of recording the movie, without express written authority of the owner of the theater. Violation is a misdemeanor.
Sexual Assault Victims’ DNA Bill Of Rights
AB 898, Ch. 537
Added PC 680 which authorizes a law enforcement agency investigating certain felony sex offenses to, upon the request of the victim, and subject to the commitment of resources, inform the
victim whether or not a DNA profile was obtained from the testing of the rape kit evidence or other crime scene evidence from their case, whether that information had been entered into the Department of Justice Data Bank of case evidence, and whether or not there is a match between the DNA profile developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, as specified. Additionally, PC 680 also provides that the victim be given written notification by the law enforcement agency if the law enforcement agency elects not to perform DNA testing of the rape kit evidence or other crime scene evidence, or intends to destroy or dispose of the rape kit evidence or other crime scene evidence prior to the expiration of the statute of limitations as specified. The victim’s sole remedy for the failure of a law enforcement agency to comply with these provisions would be to file a writ of mandamus.
A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.
Statute Of Limitations: Child Sexual Abuse
AB 949, Ch. 2 [Urgency legislation effective 4/3/2003]
SB 851, Ch. 468
Added PC 803(k) which tolls the one-year statute of limitations for cases revived under PC 803(g) or PC 803(h) during any challenge to a grand jury subpoena arising from investigation of the alleged abuse. The tolling period begins at the time a party initiates the challenge, and ends at either the end of the litigation of the challenge (including any associated writ or appellate proceedings), or when evidence pursuant to the subpoena is disclosed after the litigation. However, PC 803(k) does not apply if a court finds that the grand jury subpoena was issued/caused to be issued in bad faith.
PC 803(g) was invalidated in Stogner v. California (2003) 539 US 607 insofar as it applies to crimes that occurred before its 1/1/94 effective date. Revived cases arising from crimes that occurred after 1/1/94 are not affected.
CJ Instructions Affected: CJ 4.74
Statute Of Limitations: Unlawful Practice Of Law
SB 337, Ch. 152
Amended PC 803 to add violations of provisions relating to unlawful practice of law (BP 6126) to those for which the commencement of the applicable limitation of time commences only when the offense has been, or could reasonably have been, discovered.
CJ Instructions Affected: CJ 4.74
Statute Of Limitations: Identity Theft
SB 851, Ch. 468
AB 1105, Ch. 73
Added PC 803.5 to provide that, with respect to PC 115 (offering false or forged instruments for filing) or PC 530.5 (unauthorized use of personal identifying information), the statute of limitations does not begin to run until the discovery of the offense.
CJ Instructions Affected: CJ 4.74
Domestic Violence Restraining Orders: Warrantless Arrest
Ab 1290, Ch. 495
Amends PC 836 to include emergency protective orders for stalking and elder or dependent adult abuse protective orders to the list of specified orders included in the statute.
Drug Diversion: Sealing Of Records
SB 599, Ch. 792
Added PC 851.90 which provides that whenever a person is diverted pursuant to a drug diversion program administered by a superior court or is admitted to a deferred entry of judgment program for specified drug offenders, the person successfully completes the program, and it appears to the judge presiding at the hearing where the diverted charges are dismissed that the interests of justice would be served by sealing the records of the arresting agency and related court files and records with respect to the diverted person, the judge may order those records and files to be sealed, as specified. The Department of Justice, however, will continue to be able to maintain and disseminate any records or documents received or maintained by it, as authorized by law.
Promise To Appear: Challenging Identification
SB 752, Ch. 467
Amended PC 853.5, PC 853.6, VC 40303, VC 40305, VC 40305.5, VC 40500 and VC 40504. Under existing law, in any case in which a person is arrested for infraction or a misdemeanor, the person may be released pursuant to specified procedures that include presenting to a peace officer satisfactory identification or signing a promise or notice to appear. A peace officer may obtain a thumbprint on a promise to appear from the person arrested for an infraction if that person does not provide satisfactory evidence of identity, or when the person is arrested for a misdemeanor and he or she has no satisfactory identification. That print or fingerprint can not be used to create a database. Senate Bill 752 added the provision that the print could not be included in a database or otherwise distributed for any except law enforcement purposes relating to the identity of the arrestee.
Additionally, a person reasonably believing he or she is a victim of identity theft may petition the court for a factual finding of innocence, which shall be granted if there is no reasonable cause to believe that person committed the associated offense, as specified. Senate Bill 752 amended this provision to provide that a person contesting a charge by claiming under penalty of perjury not to be the person issued a notice to appear under the circumstances described above may choose to submit a print to the issuing court through his or her local law enforcement agency for comparison with the one placed on the notice to appear. By permitting this contest of a charge by a person claiming innocence under penalty of perjury who chooses to submit prints to local law enforcement agencies, this bill expanded the crime of perjury. Additionally, it also specifies procedures by which the court would determine the result of the contest, including providing for a finding of factual innocence under certain circumstances and for a referral of that finding to the Department of Motor Vehicles for specified purposes. The citation or notice to appear may be held by the prosecuting attorney or issuing agency for future adjudication should the arrestee who received the citation or notice to appear be found.
Domestic Violence: Personal Appearance
AB 383, Ch. 29
Previously, PC 977 provided that a person charged with a misdemeanor offense could appear by counsel only except that if the accused is charged with an offense involving domestic violence, he or she must be present for arraignment and sentencing. PC 977 was amended to provide that a person accused of a misdemeanor offense involving domestic violence is also be required to be present at any time during the proceedings to be informed by the court of the conditions of a protective order issued as under PC 136.2.
Discovery: Child Pornography
SB 877, Ch. 238 [Urgency legislation effective 8/11/2003]
Added PC 1054.10 to prohibit defense attorneys from disclosing copies of child pornography evidence to the defendant, members of the defendant’s family, or anyone else, unless permitted by the court after a hearing and showing of good cause. This provision does not apply to persons employed by the attorney or appointed by the court to assist in the preparation of the defense’s case.
Expungement And Firearms
AB 580, Ch. 49
Amended PC 1203.4, which provided that expungement of a conviction does not permit a person to own, possess, or have in his or her custody or control any firearm capable of being concealed upon the person, to instead provide that expungement does not permit a person to own, possess, or have in his or her custody or control any firearm.
Proposition 36: Nonviolent Drug Possession Offenses
SB 762, Ch. 155
Amends PC 1210 to define “nonviolent drug possession offense” to mean the unlawful “personal use, possession for personal use, or transportation for personal use of any controlled substance” as specified.
Death Penalty: Mental Retardation
SB 3, Ch. 700
The United States Supreme Court has held that the imposition of the death penalty on a mentally retarded person is prohibited by the United States Constitution. (Atkins v. Virginia (2002) 536 US 304.)
Senate Bill 3 added PC 1376 define the term “mentally retarded” and provides that a defendant in any case in which the prosecution seeks the death penalty may apply for an order directing that a mental retardation hearing be held. PC 1376 requires a court to order a hearing to determine whether a defendant is mentally retarded upon submission of a declaration by a qualified expert opining that the defendant is mentally retarded. It further requires the court, at the request of the defendant, to conduct the hearing without a jury prior to the commencement of the trial, or if the
defendant does not request a court hearing, to order a jury hearing to take place at the conclusion of the trial. The defendant must present his or her evidence of mental retardation, followed by the prosecution’s evidence and any rebuttal evidence, with each party permitted to reopen only as provided. PC 1376 provides that the defense has the burden of proving by a preponderance of the evidence that the defendant is mentally retarded.
PC 1376 provides that the penalty for a mentally retarded defendant found guilty of murder in the first degree where special circumstances which would otherwise make him or her eligible for imposition of the death penalty have been found, shall be confinement in the state prison for life without possibility of parole. If, after a mental retardation hearing, the court or jury finds that the defendant is not mentally retarded, the criminal trial shall proceed as in any other case in which a sentence of death is sought by the prosecution, and the criminal jury shall not be informed of the prior proceedings or the findings concerning the defendant’s claim of mental retardation.
See new CALJIC Instructions: CJ 8.84.01 – MENTAL RETARDATION PHASE (PC 1376); CJ 8.84.02 – MENTAL RETARDATION–DEFINED (PC 1376); CJ 8.84.03 – SPECIAL FINDING, MENTAL RETARDATION (PC 1386)
Battered Women’s Syndrome (BWS): Writ Of Habeas Corpus
Sb 784, Ch. 136
Amended PC 1473.5 to extend the sunset date of that statute to January 1, 2010.
Search Warrants: Identity Theft
AB 1773, Ch. 137
Amends PC 1524 to provide that, in addition to any other circumstances permitting a magistrate to issue a warrant for a person or property in another county, when the property or things to be seized consist of any item or constitute any evidence that tends to show a violation of specified identity theft crimes (PC 530.5), a magistrate may issue a warrant to search a person or property located in another county if the person whose identifying information was taken or used resides in that other county.
Mandatory Child Abuse Reporting
SB 316, Ch. 122
Amended PC 11165.7 to add “custodial officer” (as defined in PC 831.5) to the list of “mandated reporters” required to report child abuse or neglect.
Firearm Prohibition: Juvenile Offenders
SB 238, Ch. 499
AB 319, Ch. 490
Amended PC 12021(e) to add violations of PC 12025(a) (carrying a concealed firearm), PC 12031(a) (carrying a loaded firearm) and PC 12034(a) (loaded firearm in vehicle) to the list of specified offenses prohibiting juveniles from owning, possessing, or having under custody or control firearms until the age of 30.
SB 238, Ch. 499
Amended PC 12021(c) to remove violations of PC 246 (shooting at an inhabited dwelling or vehicle) from the list of crimes subject to its provisions, thereby making persons convicted of PC 246 subject to a lifetime ban under PC 12001.6 and PC 12021.1(a)(27).
Amended PC 12280, deleting the exemption allowing retired police officers to obtain assault weapons from their employing agencies upon retirement, to make PC 12280 consistent with Silveira v. Lockyer (2003) 312 F3d 1052, which held that exemption unconstitutional.
Amended PC 12301 to include any device designed or intended to emit or propel a burning stream of combustible or flammable liquid a distance of 10 feet or more as a “destructive device.”
SB 489, Ch.500
Amended the definitions of “unsafe handgun” in PC 12126 to include, commencing January 1, 2006, a center-fire semiautomatic pistol that does not have either a chamber load indicator or a magazine disconnect mechanism, and a rimfire automatic pistol that does not have a magazine disconnect mechanism, if it has a detachable magazine. After January 1, 2007, the term also included a center-fire semiautomatic pistol that does not have both a chamber load indicator and a magazine disconnect mechanism.
PC 12132, which exempts certain firearms from the prohibition against selling, loaning or transferring any unsafe handgun, was amended to also exempt the sale, loan or transfer of any semiautomatic pistol that is to be used solely as a prop in a motion picture, television or video production.
Sexual Assault Victims: Toxicology Testing
AB 506, Ch. 535
Amends PC 13823.11 to provide that a sexual assault victim may consent to give a urine and blood sample to determine if drugs or alcohol were used in connection with the assault. The toxicology results obtained are inadmissible in any criminal or civil action or proceeding against any victim and are confidential except for purposes of prosecuting or defending the crime or crimes necessitating the examination.
DUI: Second Offense
SB 416, Ch. 705
Amended VC 13352.5 concerning eligibility for restricted licenses.
DUI: Youthful Offenders
SB 408, Ch. 254
VC 13353.8, which authorizes the Department of Motor Vehicles to impose restrictions on a person under 21’s privilege to drive, instead of a complete suspension, based upon a showing of a critical need to drive, has been amended to require the department to determine that the person has no prior DUI convictions within 7 years of the current offense, and that the person’s driving privilege has not been suspended or revoked under certain DUI provisions, prior to imposing a restriction instead of a suspension on the driving privilege.
DUI: Implied Consent
SB 408, Ch. 254
VC 23612 was amended to provide that any official record that is maintained in the governmental forensic laboratory, which relates to a chemical test analysis prepared and maintained in the governmental forensic laboratory computerized database system, and is electronically transmitted and retrieved through a public or private computer network to or by the department is admissible as evidence in a DMV administrative proceeding.
WELFARE AND INSTITUTIONS CODE
Detention Of Minors In Adult Facilities
AB 945, Ch. 332
Existing law permits the detention of minors in jails and other secure facilities for the confinement of adults if certain conditions are met, including that the juvenile court or court of criminal jurisdiction makes a finding that the minor’s further detention in the juvenile hall would endanger the safety of the public or would be detrimental to the other minors in the juvenile hall. The juvenile court is also authorized to order that certain minors who have committed specified serious or violent offenses and who have been declared to be not a fit and proper subject to be dealt with under juvenile law, or whose cases have been filed directly in or transferred to a court of criminal
jurisdiction, be delivered to the custody of the sheriff, upon making a specified finding.
WI 207.6 was added to permit a minor to be detained in a jail or other secure facility for the confinement of adults pursuant to those provisions only if the court makes its findings on the record, and, in addition, finds that the minor poses a danger to the staff, other minors in the juvenile facility, or to the public, as specified.
Escape From Custody
AB 355, Ch. 263
Amended WI 871 to make it a misdemeanor for any person who is under the custody of a probation officer or any peace officer in a county juvenile hall, or committed to a county juvenile ranch, camp, forestry camp, or regional facility, as defined, to escape or attempt to escape while outside or away from such an institution or facility while under the custody of a probation officer or any peace officer.