FORECITE’S 2005 Legislative Update (leg 05)
[Legislation effective January 1, 2005 unless effective earlier as urgency legislation where noted. This includes all legislation passed from January 2, 2004 through January 1, 2005.] 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.
NEW LEGISLATION
[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
Dentistry
AB 2056, Ch. 447
Amended BP 1701.1 to make conspiracy or aiding and abetting another to commit the crime of unlawful practice of dentistry an offense subject to penalty.
Hypodermic Needles And Syringes
SB 1159, Ch. 608
Amended BP 4145 concerning the furnishing of hypodermic needles and syringes by pharmacists or physicians. Amended BP 4147 to make it a misdemeanor to knowingly dispose of a hypodermic needle or syringe upon the grounds of a playground, beach, park or school. There are exceptions for items from first aid services rendered on school grounds or for items used for educational purposes on school grounds.
Tanning Facilities
AB 2193, Ch. 758
Amended BP 22706 to prohibit the use of a tanning device by persons under the age of 14. Amended BP 22708 concerning punishment and civil penalties for violations the section.
Home Improvement Contracts
SB 30, Ch. 566
Added BP 7159.4, BP 7159.5, BP 7159.6, BP 7159.10, BP 7519.11, BP 7519.12, BP 7519 13 and BP 7159.14; repealed BP 7018.5; repealed and added BP 7159 and BP 7159.3. Amended existing law concerning persons who violate provisions regulating home improvement contracts as part of a plan to defraud an owner in connection with repairs to damage caused by a natural disaster to include defrauding a tenant. Increase the time period in which a criminal action may be commenced for violations from one year to two years. The changes are operative July 1, 2005.
CODE OF CIVIL PROCEDURE
Child Molestation: Statute Of Limitations
SB 1678, Ch. 741
Added CCP 340.35 to revive, for a one-year period, civil causes of action for sexual abuse of a minor where the underlying criminal case filed under PC 803(f), (g) or (h) has been dismissed or overturned pursuant to Stogner v. California (2003) 538 US 607. CCP 340.35 apples only to claims against the person criminally charged with the abuse, not against third parties.
EVIDENCE CODE
Records: Admissible Hearsay
AB 883, Ch. 65
Added EC 550.1 to provide that reproductions of documents, fingerprints or other instruments made under the provisions of PC 11106.3 that are in the official custody of a criminal justice agency are admissible as evidence to the same extent as the original. (See PC 11106.3.)
Victims: Accommodations for Dependent Persons
AB 20, Ch. 823
Amended EC 710, EC 765, EC 767, and EC 1109; added EC 177; amended PC 288, PC 502.9, PC 515, PC 525, PC 859.1, PC 861.5, PC 868.7, PC 939.21, PC 1347.5, and PC 11166; added PC 1127g; amended WI 15610.63 and WI 15630. EC 177 defines “dependent person” as any person who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have significantly diminished because of age. “Dependent person” includes any person who is admitted as an inpatient to a 24-hour health facility, as defined in HS 1250, HS 1250.2, and HS 1250.3. EC 710 was amended to expand the witness oath exemption to include dependent persons with a substantial cognitive impairment. EC 767 was amended to provide that leading questions may be asked of a dependent person with a substantial cognitive impairment in specified cases involving prosecution of physical, mental, or sexual abuse. EC 1109 was amended to provide that character evidence is admissible when the offense involves abuse of a dependent person regardless of age. PC 288 was amended to make its provisions applicable to all dependent persons regardless of age. Amended several other sections to include “dependent person.”
CJ Instructions affected: CJ 10.90
Evidence: Sexual Conduct in Rape Cases
AB 2829, Ch. 61
Amended EC 782 to require that any affidavit filed with the court in connection with an offer of proof to determine the relevance of evidence regarding the sexual conduct of the complaining witness in a rape case be kept under seal pending a determination by the court as to whether the offer is sufficient to order a hearing regarding the offer of proof. The affidavit is required to be resealed upon that determination and provides specified persons access to that affidavit only if the defendant raises an issue on appeal or collateral review regarding the offer of proof.
Battered Women’s Syndrome
SB 1385, Ch. 609
Amended EC 1107 to change all references in the Evidence Code to “battered women’s syndrome” to read “intimate partner battering and its effects.” Former PC 1473.5 authorized a writ of habeas corpus on the basis that evidence relating to battered women’s syndrome was not introduced at the trial for a violation of PC 187, as specified, and was applicable to convictions resulting from a plea entered or a trial commenced before January 1, 1992. Amended PC 1473.5 to instead authorize the writ on the basis of expert testimony relating to “intimate partner battering and its effects” and to apply to all trial court proceedings from the time the accusatory pleading is filed until conviction after a plea or trial for any violent felony, as specified in PC 667.5(c), that was committed before August 29, 1996, as to which expert testimony admissible pursuant to EC 1107 may be probative on the issue of culpability. The section is also amended to provide that its changes to the writ provisions that take effect January 1, 2005, are not intended to expand the uses or applicability of expert testimony on battering and its effects that were in effect immediately before that date in criminal cases. The section sunsets on January 1, 2010.
CJ Instructions affected: CJ 9.35.1
Domestic Violence: Evidence
AB 141, Ch. 116
AB 20, Ch. 116
Amended EC 1109 to expand the definition of “domestic violence” set forth in Family Code 6211 subject to a hearing pursuant to EC 352. FamC 6211 defines the term “domestic violence” as abuse perpetuated against specified spouses, cohabitants, children and others. “Domestic violence” is abuse perpetrated against (a) a spouse or former spouse, (b) a cohabitant or former cohabitant, as defined in FamC 6209, (c) a person with whom the respondent is having or has had a dating or engagement relationship, (d) a person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12), (e) a child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected or (f) any other person related by consanguinity or affinity within the second degree.
For the provision to apply, the act must have occurred no more than five years before the charged offense.
CJ Instructions affected: CJ 2.50.02
SDTs: Return of Documents
AB 1249, Ch. 162
Amended EC 1560 and PC 1326 to clarify that in a criminal case, documents requested through a subpoena duces tecum must be returned to the court and not to the requesting attorney. Provides that the court may hold an in camera hearing to determine whether the defense is entitled to receive the documents. The court may not order the documents disclosed to the prosecution, except as required by PC 1054.3. The statute does not prohibit obtaining documents with the consent of the person to whom those documents relate.
GOVERNMENT CODE
Electronic Recording Equipment
SB 1102, Ch. 227
GC 69957 authorizes electronic recording of proceedings in misdemeanor and infraction cases whenever an official report or an official reporter pro tempore is unavailable, as specified. GC 69957 was amended to prohibit a court from expending funds for electronic recording technology or equipment to make an unofficial record of an proceeding, or to use such technology or equipment to make the official record of a proceeding in circumstances not authorized by that section.
HARBORS AND NAVIGATION CODE
AB 2222, Ch. 565
Added Article 1.5 to Chapter 5 of Division 3 of the Harbors and Navigation Code, commencing with HN 680, making it unlawful to operate a motorized vessel or have the engine run idle while a person is teak surfing, body surfing or platform dragging behind a vessel, or while someone is occupying or holding onto the swim platform, swim deck, or swim step or ladder or the vessel. The provisions are operative May 1, 2005.
HEALTH AND SAFETY CODE
Human Remains
AB 1493, Ch. 413
HS 7052 makes it a felony to willfully mutilate or disinter human remains. The statute was amended to instead refer to remains known to be human and expand the crime to include sexual contact with such remains, as specified.
INSURANCE CODE
SB 1273, Ch. 730
Amended InsC 780, InsC 781 which prohibit an insurer or the insurer’s agent from making various misrepresentations relating to an insurance policy to instead prohibit statements that are known, or should have been known, to be misrepresentations. Amended InsC 782 concerning penalties and restitution.
PENAL CODE
Threats To Public Officials
AB 1433, Ch. 512
Amends PC 76 to include the immediate family of the staff of any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms within the scope of the persons covered by the statute.
CJ Instructions affected: CJ 7.40
Bail Services: Solicitation
AB 1694, Ch. 165
Added PC 160, making it a misdemeanor for a bail licensee to employ, engage, solicit, pay, or promise any payment, compensation, consideration, or thing of value to any person incarcerated in any prison, jail, or other place of detention for the purpose of that person’s soliciting bail on behalf of the licensee.
.50 Caliber BMG Rifles
AB 50, Ch. 494
Amended PC 245, PC 12011, PC 12022, PC 12022.5, PC 12275, PC 12275.5, PC 12280, PC 12285, PC 12286, PC 12287, PC 12288, PC 12288.5, PC 12289, and PC 12290 and added PC 12278, adding the .50 caliber BMG rifle to the list of dangerous weapons and creates new felonies for the manufacture, sale, or importation without a permit of this firearm. Makes it a misdemeanor to possess a .50 BMG rifle without registration.
Abandoned Newborns: Safe Surrender
SB 1413, Ch. 103
Amended PC 271.5 and HS 1255.7 to provide that no person who, without compensation and in good faith, provides assistance for the purpose of effecting the safe surrender of a minor 72 hours old or younger shall be civilly liable for injury to, or the death of, the minor child as a result of any of his or her acts or omissions. Defines “assistance” as transporting the minor child to the safe surrender site as a person with lawful custody, or transporting or accompanying the parent or person with lawful custody at the request of the parent to effect the safe surrender, or performing any other act in good faith for the purpose of effecting the safe surrender of the minor. Provides that this immunity does not apply to willful acts or omissions constituting gross negligence, recklessness, or willful misconduct.
Sex Offender Registration: Requirements
AB 2527, Ch. 429
AB 2395, Ch. 761
SB 1289, Ch. 731
Amended PC 290 concerning transient sex offender registration requirements in response to People v. North (2003) 112 CA4th 621. Among other things, (1) requires registration once every 30 days instead of once every 60 days; (2) deletes the provision that if a transient changes the location where he or she is physically present on a regular basis to a different jurisdiction within California, he or she must reregister in the new jurisdiction within 5 days of relocating; (3) provides that a transient shall inform law enforcement, in person or in writing, within 5 working days of his or her move out of California. PC 290(g)(9) provides that in addition to any other penalty imposed under the section, failure to provide information on the DOJ forms, or providing false information, is a crime punishable by up to one year in the county jail.
CJ Instructions affected: CJ 10.41
Sex Offenders: Internet Information
AB 488, Ch. 745 [Urgency legislation, effective September 24, 2004]
Added PC 290.46 requiring the Department of Justice to make information about registered sex offenders available to the public on the Internet on or before July 1, 2005, and to update that information on an ongoing basis. It provides that for certain offenders the posted information shall include the offender’s home address. It also provides that offenders with less serious sexual offenses may apply to the Department of Justice for exclusion from the Web site. PC 290.46 makes it a misdemeanor for a sex offender who is required to register to enter the Web site and provides for civil liability for the misuse of sex offender information from the Web site. It is a misdemeanor to use information from the Web site to commit a misdemeanor and a felony to use it to commit a felony.
Interference With Guide Dogs
AB 1801, Ch. 322
Amended PC 365.5 to include interference with a signal or service dog or a mobility aid. A “mobility aid” is defined as a device, including a wheelchair, walker or white cane, which enables a person with a disability to travel independently. Amended PC 6002 to make it a misdemeanor to allow one’s dog to cause injury or death to a guide, signal or service dog if the injury or death is caused by reckless disregard in controlling the dog, as specified. PC 6005 was amended to increase the maximum fine allowed for violation of the statutes.
Elder and Dependent Adult Abuse
AB 2611, Ch. 886
AB 3095, Ch. 893
Amended PC 368 and WI 15656, WI 15657, and WI 15657.5 to increases criminal penalties relating to elder and dependent adult abuse and makes them applicable to a person who knew or reasonably should have known that the potential victim was an elder or dependent adult. The bill separated financial abuse from the current statute providing enhanced civil remedies to victims of elder or dependent adult abuse and applies a preponderance of evidence standard of proof for showing financial abuse, instead of the current clear and convincing evidence standard. The court is permitted to require the defendant to receive appropriate counseling upon conviction as a condition of probation. The defendant is required to pay the expense of his or her participation in the counseling program, unless the court finds an inability to pay.
CJ Instructions affected: CJ 9.38, CJ 16.172
Illegal Dumping
AB 1802, Ch. 137
Amended PC 374.3 to make it an infraction to dump asphalt and concrete in certain locations. Increases the mandatory fine for unlawful dumping of commercial quantities of waste matter, rocks, or dirt.
Disasters: Hotel & Motel Rates
SB 1363, Ch. 492
Amended PC 396 to provide that, upon proclamation of a state of emergency, it is unlawful for an owner or operator of a hotel or motel to increase the regular rates by more than ten percent. The prohibition extends for a period of 30 days following the proclamation. A greater increase is permissible if the owner or operator can prove that it is directly attributable to additional costs, seasonable adjustments or previously contracted rates.
Hate Crimes
AB 2288, Ch. 780
SB 1234, Ch. 700
In pertinent part, amended PC 422.6, PC 422.7, and PC 422.75; amended and renumbered PC 1170.75; added PC 422.55, PC 422.77, PC 422, 86 and PC 422.88; repealed PC 422.76; repealed and added PC 422.9. This bill created a uniform statutory definition of “hate crime” and made conforming amendments to several related sections. PC 422.55 defines “hate crime” as a criminal act committed in whole or in part because of one or more actual or perceived specified characteristics of the victim (disability, gender, nationality, race or ethnicity, religion, sexual orientation). While the definition retains most of the characteristics described in existing law, it also includes associate with a person or group with one or more of these actual or perceived characteristics, as defined. PC 422.6 was amended to provide that while an offense under that section that also violates another provision of law may be charged under all applicable provisions, it may only be punished one, pursuant to PC 654. PC 422.7 is amended to lower the threshold of property damage from $500 to $400. PC 422.88 requires a court to take all actions reasonably required, including the issuance of retraining orders, to safeguard the health, safety or privacy of the alleged victim, or a person who is at risk of becoming a victim, of a hate crime. Those orders may prohibit or restrict the photographing of the victim or person at risk. PC 422.9 requires all state and local agencies to use the definition of “hate crime” as defined in PC 422.55 exclusively, except as specified by other explicit provisions of state or federal law.
CJ Instructions affected: CJ 8.82.16, CJ 16.500, CJ 16.501, CJ 17.24.5
Hate Crimes: Release Conditions
AB 2428, Ch. 809
SB 1234, CH 700
Amended and renumbered PC 422.95, and added PC 422.865, PC 422.96, and PC 3053.4, PC 422.95 was renumbered PC 422.85 and amended to require, absent compelling circumstances stated on the record, a court order upon conviction of such a crime protecting the victim, or the victim’s immediate family or domestic partner, from further acts of violence, threats, stalking or harassment by the defendant, including any stay-away conditions, and to make obedience of that order a condition of probation.
PC 422.85 imposes release conditions for a person who, after being found not guilty by reason of insanity of any specified hate crime, is committed to a state hospital or other treatment facility and subsequently placed on outpatient status or conditional release. Subdivisions (a) and (b) impose additional conditions.
Aggravated Arson
AB 1907, Ch. 135
Amended PC 451.5 to increase the damage and loss threshold for aggravated arson from an excess of $5 million to $5,650,000. The sunset date for the damage and loss provision is extended from January 1, 2005 to January 1, 2010.
CJ Instructions affected: CJ 14.81
Grand Theft
AB 1814, Ch. 515
Adds and repeals PC 487h to provide that any person who steals cargo worth more than $400 is guilty of grand theft, except as provided in PC 487, PC 487a, and PC 487d, is guilty of grand theft.
“Cargo” is defined as any goods, wares, products, or manufactured merchandise that has been loaded into a trailer, railcar, or cargo container, awaiting or in transit. This section sunsets on January 1, 2010.
CJ Instructions affected: CJ 14.24.
Child Pornography: Forfeiture Of Computer Equipment
AB 1499, Ch. 751
Amended PC 502.01 to authorize a court to order the forfeiture of any computer, computer system, network, software or data, or any illegal telecommunications device, as specified, owned by a defendant that was used in committing, or conspiring to commit a violation of PC 288, PC 288.2, PC 311.1, PC 311.2, PC 311.3, PC 311.4, PC 311.5, PC 311.10, PC 311.11, PC 422, PC 470, PC 470a, PC 472, PC 475, PC 476, PC 480, PC 483.5, PC 484g, PC 484e(a), (b), or (d), PC 484f(a), PC 484i(b) or (c), PC 502(c), PC 502.7, PC 502.8, PC 529, PC 529a, PC 530.5, PC 537e, PC 593d, PC 593e, or PC 646.9, or was used as a repository for the storage of software or data obtained in violation of those provisions. Forfeiture shall not be available for any property used solely in the commission of an infraction. If the defendant is a minor, it also includes property of the parent or guardian of the defendant.
Impersonating An Officer
AB 1153, Ch. 22 [Urgency legislation, effective March 5, 2004]
Amended PC 538e and added PC 538g to makes it a misdemeanor to wear the badge, uniform or other specified identification of an officer or member of a fire department or the Office of State Fire Marshall with the intent to fraudulently impersonate such a person. Makes it a misdemeanor to make or sell any badge that falsely purports to be that of an officer or member of a fire department, or to exhibit, use, or sell an identification card of a city, county, or state employee. Use of a badge as an entertainment or theatrical prop or supplied by an employee organization representing firefighters, or a state or international organization to which it is affiliated, are exempt.
Worker’s Compensation
SBX4 2, Ch. 2X
In pertinent part, amended PC 549, PC 550 concerning the amounts of maximum fines imposed. PC 1524 was amended to add subdivision (a)(8)to authorize a search warrant when the property or things to be seized include an item or any evidence that tends to show a violation of Labor Code 3700.5 [failure to provide worker’s compensation insurance].
Animal Cruelty: Declawing
AB 1857, Ch. 876
Added PC 597.6 making it unlawful for a person to perform, procure, or arrange for surgical claw removal, declawing, onychectomy, or tendonectomy on an exotic or native wild cat species, as defined, or from altering such a cat’s toes, claws, or paws in order to prevent their normal functioning. Procedures performed solely for a therapeutic purpose, as defined, are exempted. “Exotic or native wild cat species” include, but are not limited to, lions, tigers, cougars, leopards, lynxes, bobcats, caracals, ocelots, margays, servals, cheetahs, snow leopards, clouded leopards, jungle cats, leopard cats, and jaguars, or any hybrid thereof.
Disorderly Conduct
SB 1484, Ch. 666
Amended PC 647 to add a bedroom to the list of specified rooms covered in the statute. Added PC 647(k)(3) creating a new disorderly conduct misdemeanor for to secretly photograph, film or record a person in specified locations, who may be partially or fully undressed, without that person’s knowledge or consent and with the intent to invade that person’s privacy under circumstances in which the person has a reasonable expectation of privacy. It is not a defense that the defendant is a roommate, cohabitant, tenant or landlord, or in another specified relationship with respect to the victim. Nor is it a defense that the victim was not in a state of full or partial undress. Added PC 647.7(c) concerning punishment for violation of the above section.
Internet Piracy
SB 1506, Ch. 617
Added PC 653aa, making it a misdemeanor for a person who knowing that a recording or audiovisual work is commercial, to knowingly electronically disseminates all or substantially all of the work to more than 10 other people to fail to disclose his or her true e-mail address and the title of the recording or audiovisual work. The court is required to order the deletion or destruction of any electronic file containing a commercial recording or audiovisual work, the dissemination of which was the basis of the violation. PC 653aa does not apply to dissemination to a person’s immediate family or personal home network, as specified, dissemination with the copyright owner’s permission, or dissemination by a licensee. There are additional exemptions for dissemination by means of cable or home satellite service or internet service provider. The section sunsets on January 1, 2010.
Misuse Of 911 System
AB 911, Ch. 295
Added PC 653y to make it an infraction to use or knowingly allow the use of the 911 telephone system for reasons other than for an emergency. First or second offenses are subject to written warnings from the public safety entity; subsequent offenses are subject to fines, which may be reduced upon consideration of the violator’s ability to pay. Makes a parent or legal guardian of a minor jointly and severally liable with the minor child for the fine imposed for this violation.
Former Jeopardy
AB 1432, Ch. 511
Amended PC 656 and PC 793, added PC 656.5, PC 656.6 and PC 793.5. Existing law provides that no prosecution or indictment of an accused person may be brought when a person has been acquitted or convicted in a prosecution based on the same act within the jurisdiction of another state, government, or country, as specified. PC 656 and PC 793 were amended to eliminate the former jeopardy protections if the acquittal or conviction occurs in another country. However, the person convicted of a crime based on an act or omission for which he or she has been acquitted or convicted in another county is entitled to credit for any actual time served in a penal institution in that country in addition to time credits that would have been awarded for incarceration in California. PC 656.6 was added to provide that no international treaties or laws shall be violated to secure the return of a person who was convicted in another country of a crime committed in California in order to prosecute that person in California.
Sex Offenses Involving Minors: Enhancement
AB 3042, Ch. 769
Added PC 675 to provide that any person convicted of PC 261.5(c) or (d) [unlawful sexual intercourse with a minor], PC 286(b)(1) or PC 286(c)(1) [sodomy with minors, as specified], PC 288(a) or (c)(1) [lewd or lascivious acts involving minors] or PC 288a(b)(1) or (2) or (c)(1) [oral copulation with a minor] is punishable by an enhancement of one-year in prison when the offense was committed with a minor for money or other consideration. The enhancement may be imposed in addition to any other required or authorized enhancement.
Statute Of Limitations
AB 1667, Ch. 368
SBX4 2, Ch. 2X
In pertinent part, amended PC 803, added PC 801.1 and PC 803.6, repealed PC 805.5. PC 803.6 specifies that if more than one limitation period applies, the time for commencing an action is governed by the period that expires last. It also provides that a change in the time for commencement of prosecution applies to any crime if prosecution was not barred on the effective date of the change by the statute of limitations in effect immediately prior to the effective date of the change. PC 803 was amended to add a violation of PC 186.10 (money laundering) to the list of offenses for which the statute of limitations does not commence until the offense is discovered.
Police Reports: Confidentiality
SB 58, Ch. 507 [Urgency legislation, effective September 14, 2004]
Added PC 964 to require the district attorney and the court in each county to establish a mutually agreeable procedure to protect personal information regarding any witness or victim contained in a police report, arrest report, or investigative report that is submitted to a court by a prosecutor in support of a criminal complaint, indictment, or information or by a prosecutor or law enforcement officer in support of a criminal action, search warrant or an arrest warrant.
PC 964 is not to be construed to affect criminal discovery pursuant to PC 1054 et seq., or procedures regarding informant disclosure or sealed search warrant affidavits, nor affects criminal defense counsel’s access to unredacted reports otherwise authorized by law, or the submission of documents in support of a civil complaint.
Incarcerated Defendant: Audiovideo Appearances
AB 99, Ch. 293
Amended PC 977.2 to expand the existing authority of the Department of Corrections to arrange for two way audio-video communication between the defendant and the courtroom to include all court appearances except the preliminary hearing, trial, judgment, sentencing, and motions to suppress, rather than only the initial court appearance and arraignment, in any case in which a defendant is charged with a felony or misdemeanor and is incarcerated in state prison. The court’s authority to issue an order requiring the defendant to be physically present in those cases where the court finds circumstances that require the physical presence of the defendant in the courtroom is retained.
Diversion: Developmentally Disabled Defendants
AB 1956, Ch. 290
Amended PC 1001.20, PC 1001.21, PC 1001.22, and PC 1001.23 to expand the application of the current statute authorizing diversion for mentally retarded defendants in certain misdemeanor cases to apply to persons with cognitive developmental disabilities, as specified.
Victim Appearances at Hearings
AB 2, Ch. 1 [Urgency legislation, effective January 21, 2004]
Amended, inter alia, PC 1191.15 to expand the type of information that victims may submit during sentencing or parole hearings to specifically include a statement stored on a CD-ROM, a DVD, or any other recording medium acceptable to the court in lieu of, or in addition to, making a personal appearance at the hearing.
Restitution
SB 631, Ch. 223 [Urgency legislation, effective August 16, 2004]
In pertinent part, amended PC 1202.4, PC 1202.45, PC 1214 and added PC 1202.44 to require a defendant to submit a revised financial declaration to the court if there is any remaining unpaid balance on a restitution order or fine 120 days before the defendant’s scheduled release from probation. The court is required to assess a probation or parole violation restitution fine in the same amount as the original restitution fine, which would become effective upon revocation of probation or parole. This fine may be waived only upon a finding of compelling and extraordinary reasons stated on the record.
Transfer of Probation Cases
AB 1306, Ch. 30 [Urgency legislation, effective April 13, 2004]
Amended PC 1203.9 to provide that, if a person is sentenced under Proposition 36, jurisdiction may, at the discretion of the sentencing judge, be transferred to the defendant’s county of permanent residence.
Bail Fugitive Recovery Persons Act
AB 2238, Ch. 166
Amended PC 1299.12 and added PC 1299.14 to extend the sunset date from January 1, 2005, to January 1, 2010, for the Bail Fugitive Recovery Persons Act, which authorizes certain persons to apprehend, detain, or arrest a bail fugitive provided they meet specified requirements. A violation of any of the requirements imposed upon bail fugitive recovery persons is a misdemeanor.
Mentally Incompetent Defendants: Antipsychotic Medication
SB 1794, Ch. 486
Amended PC 1369, PC 1370, and PC 1370.01 to establish standards and procedures for administering antipsychotic medication to persons found incompetent to stand trial. Requires mental health professionals appointed in felony or misdemeanor cases to report to the court, among other things, their opinion whether treatment with antipsychotic medications is medically appropriate and likely to restore the defendant to competence; whether the defendant has the competence or capacity to make medical decisions about antipsychotic medication; whether the defendant is a danger to self or others; and the likely or potential side effects of the medication, the expected efficacy of the medication, and possible alternative treatments. Establishes court procedures to be followed before ordering a mentally incompetent person confined in a state hospital to undergo forced antipsychotic medication.
Seizure of Business Records
AB 1894, Ch. 372
Added PC 1536.5 which provides a procedure for an entity whose business records have been seized by a government agency to demand that the agency provide it copies of the documents seized within 10 court days of the service of the demand. Establishes a procedure for the agency to petition the court for additional time if the seized records are too voluminous to be copied in the required time period. The court may grant the motion for additional time only if the agency establishes that producing copies of the records within the time period would create a hardship on the agency. If the court grants the motion, it shall make an order designating a time frame for the duplication and return of the business records, deferring to the entity the priority of the records to be duplicated and returned first.
Records: Admissible Hearsay
AB 883, Ch. 65
Added PC 11106.3 to provide that electronic reproductions of files, records, writings, photographs, fingerprints, or other instruments in the official custody of a criminal justice agency that were microphotographed or otherwise reproduced in a lawful manner shall be admissible to the same extent and under the same circumstances as the original file, record, writing, or other instrument would be admissible. (See also EC 550.1.)
Child Abuse & Neglect Reporting
SB 1313, Ch. 842
AB 20, Ch. 823
AB 2531, Ch. 762
AB 2749, Ch. 292
Amended PC 11165.7. PC 11165.12, PC 11166, PC 11167.5, PC 11169, PC 11172 and WI 16513 et Seq., making numerous changes to the Child Abuse and Neglect Reporting Act (CANRA) as recommended by the CANRA task force. Volunteers of public and private organizations whose duties include direct contact with and supervision of children are not mandated reporters, but are encouraged to report instances of child abuse and neglect. However, Court Appointed Special Advocates are mandated reporters. The definition “substantiated report” in PC 11165.12 as being based on “some credible evidence” is amended to instead refer to a report that is based upon evidence that makes it more likely than not that child abuse or neglect has occurred. PC 11166 was amended to provide that if a mandated reporter intentionally conceals his or her failure to report an incident known to be abuse or severe neglect, the failure to report is a continuing offense until discovery by an agency.
Firearms
SB 1797, Ch. 593
In pertinent part, amended PC 12021 concerning persons prohibited from possessing firearms by specific order, to include a reference specifically to a protective order as defined in FamC 6218.
Return Of Firearms
AB 2431, Ch. 602
Amended PC 12028, PC 12028.5, PC 12028.7, PC 12030, PC 12084; added PC 12021.3 and repealed WI 8107. New PC 12021.3 requires a person requesting the return of a firearm that is in the custody or control of a court or law enforcement agency to apply to the Department of Justice to determine if that person is eligible to possess a firearm. PC 12021.3(a)(1)(g) and (a)(3) provide that any person furnishing incorrect information or knowingly omitting any required information is guilty of a misdemeanor. Additionally, it provides for the disposal of firearms belonging to persons prohibited from possessing firearms. An individual who is applying for a background check to retrieve a firearm that has come into the custody or control of a court or law enforcement agency shall be exempt from specified fees if the court or agency determines the firearm was reported stolen to a law enforcement agency before the date the firearm came into custody or control of the court or law enforcement agency or within five business days of the firearm’s being stolen from its owner. The court or agency is required to notify the Department of Justice of this fee exemption in a manner prescribed by the department.
Domestic Violence Protective Orders: Firearms Relinquishment Notice
SB 1391, Ch. 250
Amends PC 13700, FamC 6240 and FamC 6389 to require relinquishment of any firearm within 24 hours of service of a protective order, whether or not respondent is at the hearing and provides that the Judicial Council protective order form provide notice to the respondent that he or she shall be required to relinquish possession or control of any firearms upon service of the protective order.
VEHICLE CODE
DUI: Driver’s License Sanctions
SB 1697, Ch. 551
Amends numerous Vehicle Code sections to consolidate all sanctioning authority regarding the suspension or restriction of driver’s licenses for DUI violations with the California DMV. Operative September 20, 2005.
Commercial Drivers: Traffic Violator School
AB 3049, Ch. 952 [Operative September 20, 2005]
Amends, in pertinent part, VC 1803.5, VC 41501, and VC 42005 to specify that a court may not order or permit a commercial driver’s license holder to complete a traffic violator school (TVS) course in lieu of adjudicating any traffic offense. It also specifies that a court may not order or permit a person who commits a Vehicle Code violation in a commercial vehicle to complete a TVS in lieu of adjudicating any traffic offense, regardless of the driver’s license class.
Motorized Scooters
AB 1878, Ch. 755
Amended VC 12509 and VC 21235 and added VC 21226. VC 21235 was amended to provide that no person may operate a motorized scooter without a valid driver’s license or instruction permit.
Speed Contests
SB 1541, Ch. 595
SB 1697, Ch. 551
SC 1694, Ch. 550
In pertinent part, amended VC 13352 and VC 23109 to require a person convicted of engaging in a motor vehicle speed contest , that in addition to the existing fine and jail term, the person perform 40 hours of community service and to provide proof of financial responsibility as a condition of regaining his or her driver’s license.
DUI: Convictions Within 10 Years
SB 1694, Ch. 550
SB 1541, Ch. 595
AB 3049, Ch. 952
Amended VC 13352, VC 13352.6, VC 23540, VC 23546, VC 23550, VC 23560, VC 23566, and VC 23622 to increases the time from 7 years to 10 years during which a prior DUI conviction may increase the sanctions for a current conviction. The amendments require the court to order a DUI offender to attend an alcohol and drug problem assessment program if the offender had a DUI conviction or a disorderly conduct conviction due to public intoxication more than 10 years before the current DUI conviction. The court is required to rely on certain information and records regarding the existence of the prior conviction. Additionally, it requires the court to order participation in an alcohol and drug problem assessment program for a current DUI offender if the offender had a prior DUI conviction in the past 10 years regardless of whether the offender participated in a program as a result of the prior conviction.
Off Road Vehicles
AB 2666, Ch. 908
AB 3049, Ch. 952
Amended VC 14601, VC 14601.1, VC 14602.2, VC 14601.3, VC 14601.4 and VC 14601.5; added VC 38346 and VC 38375. VC 14601-146011.5 were amended to provide that driving restrictions also apply to the operation of an off-highway motor vehicle on lands specified in VD 38001 et seq. VC 38346 prohibits displaying a flashing or steady burning red or blue warning light on an off-highway vehicle except as permitted by VC 21055 or when an extreme hazard exists. VC 38375 prohibits an off-highway vehicle from being equipped with a siren, except as specified.
Driver’s License Violations: Referral Program
SB 1848, Ch. 594 [Urgency legislation, effective September 18, 2004]
Reenacts VC 14601.9 to reauthorize district attorneys and city attorneys in specified counties to establish programs in which persons convicted of driving with suspended or revoked licenses (VC 14601, VC 14601.1 or VC 14601.3) may, with the approval of the court, participate. The section provides that the authorized programs include home detention with electronic monitoring in lieu of jail time. As reenacted, the pilot program is expanded to six additional counties and is now available in Alameda, Fresno, Kern, Los Angeles, Merced, Orange, Placer, Riverside, Sacramento, San Diego, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara and Santa Cruz. The section as provides that the prosecuting attorney shall attest to the person’s suitability by signing the plea and sentencing agreement.
Traffic Signs
AB 1951, Ch. 203
Amended VC 21461 to make it a crime for a driver to fail to obey a regulatory traffic sign or signal, as defined, or to fail to obey a device erected or maintained by lawful authority of a public body.
Traffic Signals: Interruptive Devices
AB 340, Ch. 338
SB 1085, Ch. 391
In pertinent part, amended VC 21464, 42001 to specify that the existing prohibition against the use of devices capable of interrupting traffic control signals applies to mobile infrared transmitters and increased the maximum fine from $3,000 to $5,000 for a willful violation of this prohibition when the violation does not result in injury or death. It is now a crime to possess, manufacture, sell, offer for sale, or otherwise distribute devices capable of interrupting traffic control signals, including mobile infrared transmitters, except to those authorized to operate such devices.
Excessive Speed Enhancements
AB 2237, Ch. 300
Amended VC 22348 to increase the fine for a second conviction of driving in excess of 100 miles per hour within three years of a prior conviction to $750; increased the fine for a subsequent conviction that occurred within five years of two or more prior convictions to $1,000.
Wireless Telephones in Vehicles
AB 2785, Ch. 505
Added VC 23125 making it an infraction to drive a schoolbus or transit vehicle while using a wireless telephone. There is an exception for phone use for work- related purposes or in the event of an emergency. A violation of this new offense does not constitute a serious traffic violation for the purposes of the commercial motor vehicle safety program.
DUI: Blood Tests
AB 371, Ch. 14 [Urgency legislation, effective February 11, 2004]
AB 1087, Ch. 18 [Urgency legislation, effective February 23, 2004]
Amended VC 23158 concerning persons authorized to draw blood to include persons who have been issued a “certified phlebotomy technician”certificate pursuant to BP 1246. A certified phlebotomy technician who is authorized to withdraw blood at the request and in the presence of a peace officer may do so in a jail, law enforcement facility or medical facility, with general supervision, as defined.
DUI Advisory Statement
AB 2173, Ch. 502
Added VC 23593 to require courts to provide a person convicted of VC 23152 or VC 23153 (DUI) or VC 23103 as specified in VC 23103.5 (wet reckless) with an advisory statement acknowledging the danger of drinking and driving and that a subsequent offense may result in a charge of murder if a person is killed as a result:
You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and, as a result of that driving, someone is killed, you can be charged with murder.
The statement may be included in a plea form, if used. The court is also required to include that the advisement was given on the abstract of conviction submitted to the California Department of Motor Vehicles.
WELFARE AND INSTITUTIONS CODE
Placement of Sexually Violent Predators
AB 493, Ch. 222 [Urgency legislation, effective August 12, 2004]
Added WI 6608.5 to require that a nonparolee who is conditionally released under the sexually violent predator provisions to be placed in the county of domicile (where the person has his or her permanent home and principal residence) unless the court finds that extraordinary circumstances require placement outside the county of domicile. Requires consideration of concerns of the victims or their next of kin. The section lists the documents and other circumstances that the court may consider in determining county of domicile.
Sexually Violent Predators: Community Notice
AB 2450, Ch. 425
Amended WI 6609.1 to provide greater notice by the Department of Corrections to communities into which a patient may be released from the sexually violent predator program, particularly in cases where the patient is conditionally released with strict supervision.
