new laws

28 Dec

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I was reading a cpda pdf on the new laws and a few caught my eye that I was previously unaware of. Of course, we all know (or should know) that marijuana is now legal with reduced penalties that apply retroactively for possession for sale (11359 is now a misdo) and transportation for sale (pure transportation is not a crime). Note 11359 and 11360 are wobblers IF D has 2 priors. But it is arguable whether “priors” refers to pre prop 64 convictions or only convictions under the newly enacted 11360.  That is because the language says “prior under paragraph 2 of this section” and there was no “paragraph 2” in the old law.

Note, per analogous case law in Prop. 47 context, if you have a client currently in prison who wants to be resentenced under Prop 64 and has a pending appeal, you need to get a stay of the appeal authorized by the COA because technically the trial court does not have jurisdiction and technically the petition for resentencing must be filed in the trial court.  Please email me at if you want a sample motion to stay I filed in the COA which was granted after the AG did not oppose it.

We should also know that there is no longer direct filings for juveniles (Prop 57); there is the opportunity for parole after serving the base term (same); there is greater authority for CDCR to award custody credits and no one has any idea how that will work (same).

Another good law is no prostitution prosecutions for juveniles which is a no brainer; why it took so long is beyond me.

Of course there is the bad and ugly: no statute of limitations for certain sex crimes, no probation eligibility for previously eligible sex crimes (the Brock Turner law), expanded/harsher penalties for poss of ammunition and guns etc.

But here are some new laws I had not heard of:

-GOOD: homicide interrogations of adults must be recorded with some exceptions which must be proved by clear and convincing evidence (e.g. malfunction, exigent circumstances, threat to informant); [PC 859.5]

-GOOD: in three counties, you can now make a misdemeanor motion to dismiss under PC 991 even if D is not in custody! [PC 991.5]… I’m not sure if they have named which counties this applies in but hopefully it will be adopted eventually.

-BAD:smoking age changed from 18 to 21? Did I read that right?! [PC 308 and various BPC]

-UGLY-AKA THE WHAT THE FUCK BILL: sex offenders who have to register now have to provide law enforcement with their online “identifiers” e.g. email and social media names.  WTF?!!? Note, this is not published anywhere, it is for law enforcement monitoring. [Amendment to various PC 290… statutes].

Take away re laws in 2017: thank you but also no thank you but re the good ones, thank you thank you thank you.

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