Across the Bar

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California Criminal Law after the 2016 Election

California Criminal Law after the 2016 Election

Among other items of interest in the dramatic 2016 election, three ballot measures passed that will significantly affect the way we do business in California criminal courts. Proposition 57 made significant changes to parole eligibility and juvenile cases handled in adult court. Proposition 64 significantly changes the way marijuana is treated in the criminal law. Proposition 66 changes many post-trial procedures in death-penalty cases with an aim to speeding up executions.

These changes follow other recent reforms to criminal sentencing, beginning in 2011 with prison realignment and continuing with Propositions 36 and 47, which are aimed at ameliorating the issues of mass incarceration and extreme prison overpopulation that have become significant issues in California. This article summarizes the salient points of Propositions 57, 64, and 66 in a manner that will hopefully be useful to criminal law practitioners.

Two other ballot measures of interest to criminal law practitioners were on the 2016 ballot but will not be covered in depth in this article. The first is Proposition 62, which sought to repeal the death penalty in California, but did not pass.

Another interesting proposition, however, did pass: Proposition 63 added new requirements for the purchase, sale, and transportation of ammunition; new procedures for the removal of firearms from persons prohibited from possessing them; and new reporting requirements regarding guns and ammunition. It also strengthened the high-capacity magazine prohibition (eliminating the right to possess high-capacity magazines acquired before 2000) and increased the penalties for theft of a firearm. However, Proposition 63 is best analyzed in light of the large volume of gun control legislation that passed in California in 2016, some of which is consistent with Proposition 63 and some which is not. Additionally, the most important parts of Proposition 63 do not take effect immediately, but rather at various times from July 2017 to January 2019.


PROPOSITION 57

Proposition 57, the Public Safety and Rehabilitation Act of 2016, passed by a vote of 63.6% in the recent election. It does two things. First, it adds an amendment to California's constitution changing parole consideration policy in California in a way that would make some state prison inmates eligible for parole consideration sooner than they would have been under previous law. Second, it makes statutory amendments repealing the direct filing of juvenile cases in adult court and changing the standards and procedures for transfer of juvenile cases to adult courts.


First Change: Constitutional Amendment Regarding Parole

Proposition 57 added Section 32 to Article I of the California Constitution. In effect, this amendment will allow the California Department of Corrections and Rehabilitation (CDCR) to consider many prisoners for parole much earlier than it would have been able to under prior law. The new amendment does not require the CDCR to release anyone or reduce anyone's time in prison, but merely allows for earlier consideration. Under the new constitutional amendment, a prisoner who is not serving a term for a "violent felony" will be eligible for parole consideration as soon as he or she serves as full term on the primary offense for which he or she was committed to prison. As enacted, the new constitutional amendment reads:

  • SEC. 32. (a) The following provisions are hereby enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law: (1) Parole Consideration: Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense. (A) For purposes of this section only, the full term for the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence. (2) Credit Earning: The Department of Corrections and Rehabilitation shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements. (b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety.

There new constitutional amendment does not appear to be self-executing, but requires the CDCR to promulgate regulations to implement it. Unfortunately, the amendment contains a number of ambiguities which will presumably have to be worked out by the CDCR regulations, and perhaps ultimately by the courts.


Which Prisoners Are Eligible

The new constitutional amendment applies only to prisoners serving sentences for a "nonviolent felony offense," but does not define that term. A reasonable reading of this suggests that the new parole eligibility will apply to anybody not currently serving a term for a "violent felony" as defined in the Penal Code. Since that interpretation is not explicitly stated, however, the phrase may ultimately be interpreted differently. The new amendment does not affect prisoners serving local commitments under prison realignment.


When Prisoners Are Eligible

Under the new amendment, a prisoner is not eligible for parole consideration until "after completing the full term for his or her primary offense. "This phrase is defined as "the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence. "This leaves much open to interpretation. For example, the term "primary offense," which is defined so as not to include enhancements, might be synonymous with the "base term" of the Determinate Sentencing Law. On the other hand, it has been suggested that it might be interpreted as the equivalent of the "principal term," defined as the base term plus the conduct enhancements attached to that term. Similarly, "full term" as used in Proposition 57 is not defined, and does not address the issue of application of credits. "Full term" might be construed in the same manner that a principal term or a consecutive term not subject to reduction is usually applied to consecutive sentences. On the other hand, "full term" might mean the entire nominal base term (or principal term) without the application of any credits whatsoever.

"Proposition 57 amends California's constitution to change parole consideration policy in a way that would make some state prison inmates eligible for parole consideration sooner than they would have been under previous law.It also makes statutory amendments repealing the direct filing of juvenile cases in adult court and changing the standards and procedures for transfer of juvenile cases to adult courts."

Parole eligibility is determined without regard "enhancement, consecutive sentence, or alternative sentence.""Enhancements" are defined as "an additional term of imprisonment added to the base term. "This would seem to exclude conduct enhancements from the determination of the term of the "primary offense. "Apparently, any "consecutive sentence," whether or not reduced pursuant to Penal Code section 1170.1, subdivision (a), would not be considered in determination of parole consideration eligibility. The direction not to consider any "alternative sentence" would seem to apply the new constitutional amendment to many prisoners serving terms under the Three Strikes Law.

The new amendment expressly authorizes the CDCR to award credits, but does not give further guidance on when or how many credits are to be awarded or how that authorization relates to current statutory credits. Under current law, award of credits is authorized, limited, or denied based on the prisoner's circumstances. As Justice Chin noted in his dissent in Brown v. Superior Court, the award of credits authority may displace the current statutory scheme, or perhaps the credits mentioned in the constitutional amendment "would be in addition to, rather than instead of, the statutory credits." This may not be resolved until the CDCR issues its regulations.

"Proposition 57's constitutional amendment contains a number of ambiguities which will presumably have to be worked out by CDCR regulations, and perhaps ultimately by the courts."


Details of Parole Release

The new amendment would allow earlier consideration for release on parole for some prisoners than would have been allowed under previous law. However, the amendment does not offer guidance as to how this parole relates to existing release programs. Under current law, prisoners are released either to parole or to Post Release Community Supervision (PRCS), depending on their circumstances. Proposition 57 does not specify what is to be done with a person paroled early who would otherwise have been released to PRCS after his or her full term, or what the length or conditions of a parolee released under Proposition 57 would be. Again, the CDCR should interpret that when it releases its regulations.


Statutory Changes Regarding Juvenile Cases in Adult Court

In addition to the constitutional amendment relating to parole eligibility, Proposition 57 made significant statutory changes to the manner in which juvenile delinquency cases can be handled in adult court, repealing many of the main provisions of Proposition 21. Importantly, Proposition 57 completely eliminated the provisions for mandatory and discretionary direct filings of juvenile cases in adult courts and tightened the circumstances in which juvenile cases can be transferred to adult courts.


Direct filing

Direct filing of juvenile cases in adult courts is no longer allowed.Proposition 57 repealed mandatory direct filing for certain juveniles accused of certain crimes, and withdrew the discretionary authority of the prosecutor to direct-file other juvenile cases.


Judicial Transfer Process

All cases filed against juveniles must now originally be filed in the juvenile court.If the prosecution wishes to have the juvenile treated as a result, the prosecution now must file a motion making that request. The Probation Department must write a report for consideration of the court in deciding the motion, and the court must make findings based on certain criteria prior to transferring the case to juvenile court.

Proposition 57 also restricted the kinds of cases that can be transferred to adult court as compared to prior law. Now, for minors aged 14 or 15, a case may only be transferred to adult court if the minor is accused of an offense listed in Welfare and Institutions Code section 707, subdivision (b). For minors aged 16 and older, a case may now only be transferred to adult court if the minor is accused of a felony.

The criteria that must be considered by the juvenile court in deciding whether to transfer a case to adult court has not changed. However, the language of "unfitness" has been everywhere repealed and the new law has completely done away with the "presumption of unfitness" that was required for some cases.


Unanswered Questions

It is not entirely obvious what happens to past and pending cases that were direct-filed. Presumably, currently pending cases that were direct-filed would revert to the juvenile court and be subject to judicial transfer proceedings in the juvenile courts. Any effect on previously-sentenced direct file cases will have to be determined. Also, it is not clear by what mechanism a juvenile whose case was transferred to adult court could challenge or seek review of that decision. Penal Code section 1170.17 deals explicitly with direct file cases.


PROPOSITION 64

Proposition 64 passed by 56.2% of the vote in the November 2016 election and made significant changes to marijuana law in California. The ballot measure is quite extensive, most of it relating to the organization and taxation of marijuana operations and not implicating criminal practice. Moreover, Proposition 64 explicitly does not replace the medical marijuana regime in California, which still exists. The primary effect of Proposition 64 for criminal practitioners is that it decriminalized the use and possession of small amounts of marijuana and concentrated cannabis, and the cultivation of small amounts of marijuana, for most adults under California law. It also reduced the penalties of many other marijuana-related offenses.


Possession of Marijuana

The penalty for possession of less than an ounce (28.5 grams) of marijuana had been an infraction with a $100 fine. This penalty remains for adults between the ages of 18 and 20, but it is now legal for adults age 21 and over to possess this much marijuana. For minors, the first offense is four hours of drug education and up to ten hours of community service, and for each subsequent offense six hours of drug education and up to 20 hours of community service. Possession of more than an ounce of marijuana for adults age 18 and over remains a six-month misdemeanor with fine up to $500. For minors, the first offense is eight hours of drug education and up to 40 hours of community service, and for each subsequent offense, 10 hours of drug education and up to 60 hours of community service.


Possession of Concentrated Cannabis

Possession of concentrated cannabis had been a one-year misdemeanor with a maximum fine of $500. For adults age 21 an over, it is now legal to possess up to eight grams of concentrated cannabis, and possession of more than that is now punishable by a six-month misdemeanor with a maximum fine of $500, but may be a felony if the defendant has a prior "super strike" or is a Penal Code section 290 registrant. For adults between the ages of 18 and 20, possession of less than four grams of concentrated cannabis is an infraction with a $100 fine, and possession of more than four grams is now punishable by a six-month misdemeanor with a maximum fine of $500. For minors who possess less than four grams of concentrated cannabis, the first offense is an infraction with four hours of drug education and up to ten hours of community service, and for each subsequent offense four hours of drug education and up to 20 hours of community service. For minors who possess more than four grams of concentrated cannabis, the first offense is an infraction with eight hours of drug education and up to 40 hours of community service, and for each subsequent offense 10 hours of drug education and up to 60 hours of community service.

"Proposition 64 decriminalized the use, possession, and cultivation of small amounts of marijuana and concentrated cannabis for most adults under California law.It also retroactively reduced the penalties of many other marijuana-related offenses.Many prior marijuana-related convictions are subject to dismissals, reductions to infractions, or reductions to misdemeanors."


Possession of Marijuana or Concentrated Cannabis on School Grounds

For adults over the age of 18, the penalty for possession of less than an ounce (28.5 grams) of marijuana or less than four grams of concentrated cannabis on school grounds had been a misdemeanor with a maximum of 10 days jail with a $500 fine. The penalty for the first offense is now an infraction with a $250 fine, and subsequent offenses remain a misdemeanor with a maximum 10 days of jail. For minors, the first offense is eight hours of drug education and up to 40 hours of community service, and for each subsequent offense 10 hours of drug education and up to 60 hours of community service.

Possession of more than an ounce of marijuana for adults age 18 and over remains a six-month misdemeanor with fine up to $500. For minors under 18, the first offense is eight hours of drug education and up to 40 hours of community service, and for each subsequent offense 10 hours of drug education and up to 60 hours of community service.


Possession of Marijuana with Intent to Sell

Possession of marijuana with intent to sell had been a felony.Now it is a six-month misdemeanor for most offenders, but can be a felony if the offender has two prior convictions, is a Penal Code section 290 registrant, attempts to sell to a minor, or employs a minor. For minors under 18, the first offense is eight hours of drug education and up to 40 hours of community service, and for each subsequent offense, 10 hours of drug education and up to 60 hours of community service.


Sale/Transport for Sale of Marijuana

Transportation/sale of marijuana with intent to sell had been a felony. Now it is a six-month misdemeanor for most offenders, but can be a felony if the offender has two prior convictions, is a Penal Code section 290 registrant, has a "super strike," sells to or employs a minor, or transports into or out of the state. For amounts under one ounce (28.5 g), however, transport or sale is generally now an infraction. For minors under 18, the first offense is eight hours of drug education and up to 40 hours of community service, and for each subsequent offense, 10 hours of drug education and up to 60 hours of community service. The sale of marijuana to minors under the age of 14 remains a non-wobbler felony offense.


Cultivation of Marijuana

Cultivation of marijuana had been a felony.Now it is legal (for up to six plants) for adults over 21, and an infraction for adults from 18-20. Cultivation of more than six plants is now a six-month misdemeanor for most offenders, but can be a felony if the offender has two prior convictions, is a Penal Code section 290 registrant, has a prior "super strike," or involves certain environmental harms with water or chemicals. For minors under 18, the first offense is eight hours of drug education and up to 40 hours of community service, and for each subsequent offense 10 hours of drug education and up to 60 hours of community service. The sale of marijuana to minors under the age of 14 remains a non-wobbler felony offense. Cultivation of marijuana is still subject to local ordinances.


Miscellaneous Nuisance Provisions

Opening or maintaining a place for the unlawful selling or giving away of marijuana remains a wobbler offense. The same is true for making space available for the unlawful manufacture or storing of drugs, although a second offense is a non-wobbler felony.

Smoking or ingesting in marijuana in public, or smoking it where tobacco smoking is prohibited, or smoking within 1,000 feet of a school or day care center, or possession of an open package of marijuana in while operating or riding in a vehicle are infractions for adults. For minors, the penalty is four hours of drug education and up to 20 hours of community service for these offenses.


Effective Date and Retroactivity

The new changes to marijuana law became effective on November 9, 2016 and are retroactive. Many prior marijuana-related convictions are subject to dismissals, reductions to infractions, or reductions to misdemeanors. These are listed in the newly-enacted Health and Safety Code section 11361.8.


PROPOSITION 66

At the November 2016 election, the electorate of the State of California declined the opportunity to repeal the death penalty and instead passed Proposition 66, which made some changes to death penalty post-trial procedure, by a small majority. Proposition 66 affects fewer people than the other ballot measures, but its philosophical implications are substantial. The changes effected by Proposition 66 were made with the aim of speeding up executions, primarily by requiring qualified but unwilling attorneys to take death penalty cases, speeding up habeas corpus filing deadlines, and requiring that most habeas petitions originate in the trial court.

Proposition 66 added language to the Penal Code to the effect that crime victims have a constitutional right to speedy resolution of death penalty cases, requires the Judicial Council to adopt rules to see that this happens, and imposes a five-year time standard for the completion of state appeals and habeas petitions. The time standards are enforceable by writ of mandate, which may be brought by the parties or a victim.It also shortens the time frames for a court to order execution.

"Proposition 66 aimed to speed up executions, primarily by requiring qualified but unwilling attorneys to take death penalty cases, speeding up habeas corpus filing deadlines, and requiring that most habeas petitions originate in the trial court."

Proposition 66 obligates the California Supreme Court to expeditiously appoint counsel, and in some cases requires appointment of qualified counsel who do not want the appointment in order to speed up the process. It deems the writ of habeas corpus to be the sole form of collateral attack, requires these to normally be assigned to the original trial judge in the first instance, limits the allowability of successive petition, requires "expeditious" handling of habeas petitions, and places limits on the appeals of habeas petitions. Other parts of Proposition 66 less immediately relevant to a criminal law practitioner allow death-row prisoners to be housed throughout the prison system, require death row inmates to work to pay restitution, and make changes to the California Habeas Corpus Resource Center.


Conclusion

Propositions 57 and 64 are largely beneficial to criminal defendants and will doubtless be of immediate impact to many attorneys who practice criminal law in light of provisions that affect many current and past cases. Proposition 66 affects fewer defendants and attorneys, but represents a significant and striking departure from the recent trend toward reducing criminal penalties. Taken together, these three propositions will have an immediate and important impact on criminal law practice.


(Endnotes) 

1 Prison reform began with the Public Safety Realignment Initiative (A.B. 109 (2011)), which required prison sentences for many low-level felonies be served at the local jail rather than the state prison. 

2 The Three Strikes Reform Act of 2012, which passed by a 69.3% vote in 2012. This measure abrogated, in most cases, the rule that a person with two prior strikes could be given a 25-to-life term for any felony regardless of seriousness. It is not to be confused with another important Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, which passed by a 60.9% vote in 2000, and mandates treatment rather than incarceration for most drug possession offenders. 

3 The Reduced Penalties for Some Crimes initiative, which passed by a 59.6% vote in 2014. The measure reduced a number of offenses that had been low-level felonies to misdemeanors for most offenders. 

4 See Brown v. Plata (2011) 563 US 493, which, in upholding a federal court order for California to decrease its prison population, discusses the issues of prison overcrowding in California at length. 

5 Proposition 62 received only 46.2 percent of the vote in the November 8, 2016 election. 

6 The official title for Proposition 63 is "The Safety for All Act of 2016," which passed by a 62.6 percent vote in 2016. It is not to be confused with another important Proposition 63, "The Mental Health Services Act," which passed by a 53.8 percent vote in 2004, and which provides funding for mental health services. 

7 Many thanks to Garrick Byers, recently of the Contra Costa Public Defender's Office and now in private practice, for his thoughts on Proposition 57. The analysis of Proposition 57 in this article is in part a summary of a longer analysis done by Mr. Byers. If any interested reader would like to read Mr. Byers' analysis, please contact me and I will send it. 

8 "Violent felonies" are statutorily enumerated in Penal Code section 667.5, subdivision (c). The interpretation that a "nonviolent felony offense" is any offense not listed in that subdivision was taken by the Legislative Analyst and those who wrote the arguments against the ballot measure in the Voter Information Guide. 

9 See, e.g, Brown v. Superior Court (Calif. Dist. Atty's Assoc.) (2016) 63 Cal.4th 335, 360 [Chin, J., dissenting]. 

10 Local prison sentences are described in Penal Code section 1170, subdivision (h). 

11 The "base term" for DSL is defined in California Rules of Court, Rule 4.405, subdivision (2). 

12 See Brown, supra, 63 Cal.4th at 360 [Chin, J., dissenting]. "Principal term" for DSL is defined in Penal Code section 1170.1, subdivision (a). 

13 Under the DSL scheme, consecutive sentences are usually reduced to one-third of the mid-term pursuant to Penal Code section 1170.1, subdivision (a). However, for some offenses, consecutive sentences are served at the "full term," that is, without the reduction to one-third of the mid-term. (See, e.g., Pen. C., §§ 1170.1, subd. (b); 1170.16.) However, these "full terms" are still subject to reduction due to award of statutory conduct credits, as under Penal Code sections 4019, 2933, and 2933.1. 

14 See, e.g., People v. Sage (1980) 26 Cal.3d 498, 509 fn 7; People v. Goodloe (1995) 37 Cal.App.4th 485, 489-490. 15 California Rules of Court, Rule 4.405(3). 

16 The Three Strikes Law is codified at Penal Code sections 667, subdivisions (b) to (i) and 1170.12. Those who wrote the argument against Proposition 57 in the Voter Information Guide seem to support this position in arguing that Proposition 57 would overturn key portions of Three Strikes Law. 

17 See, e.g., Pen. C., §§ 2930 to 2935; Pen. C., § 667, subd. (c) (5) and 15 C.C.R. §§ 3042 to 3047. 

18 Brown, supra, 63 Cal.4th 335, 361 [Chin, J., dissenting]. 

19 Pen. C., § 3000.08, subds. (a), (b) and (i); § 3451, subds. (a) and (b). 

20 Proposition 21, which was passed by 62.1% of the vote in 2000, added most of the direct filing provisions which have been repealed by Proposition 57. 

21 Proposition 57 did this by amending Welfare and Institutions Code section 602, subdivision (a) and repealing subdivisions (b) and (c). 

22 Wel. & Inst. C., § 707, subd (a). The criteria the judge must use in determining whether to transfer the case to adult court are contained in Welfare and Institutions Code section 707, subdivision (a)(2)(A)-(E). 

23 Wel. & Inst. C., § 707, subd (a). 

24 Wel. & Inst. C., § 707, subd (a). 

25 It has been renumbered, however. The criteria that were codified at Welfare and Institutions Code section 707, subdivision (b)(2) have been moved to the current version of section 707, subdivision (a)(1)(A)-(E). 

26 The official title of Proposition 64 is the Control, Regulate, and Tax Adult Use of Marijuana Act, with a short title of "the Adult Use of Marijuana Act." 

27 The medical marijuana regime in California derives primarily from Proposition 215 (the Compassionate Use Act of 1996) and Senate Bill 420 (the Medical Marijuana Program Act of 2004). 

28 H & S., § 11362.1, subd (a)(1) 

29 H & S., § 11357 

30 H & S., § 11357, subd (b)(2). 

31 H & S., § 11357 

32 It could be a felony under Proposition 47 if the person possessing the marijuana had to register as a sex offender under Penal Code section 290 or if he or she had a prior "super-strike" under Penal Code section 667 subdivision (e)(2) (C)(iv). 

33 H & S., § 11362.1, subd (a)(2) 

34 H & S., § 11357, subd (b)(2) 

35 "Super Strikes" are listed at Pen. C, § 667(e)(2)(C)(iv) 

36 H & S., § 11357 

37 H & S., § 11357 

38 H & S., § 11357

39 H & S., § 11359, subd (b). 

40 H & S., § 11359 

41 H & S., § 11359 

42 H & S., § 11360, subd (a)(2); however, transportation of small amounts of marijuana or concentrated cannabis not intended for sale is allowed under Health and Safety Code section 11362.1. 

43 H & S., § 11360

44 H & S., § 11360 

45 H & S., § 11361 

46 H & S., § 11362.1, subd (a)(3) 

47 H & S., § 11358, subd (c) 

48 H & S., § 11358 

49 H & S., § 11358 

50 H & S., § 11361 

51 H & S., § 11366 

52 H & S., § 11366.5 

53 H & S., § 11362.3 

54 The official title of Proposition 66 is the "Death Penalty Reform and Savings Act of 2016." It passed on November 8, 2016 by 50.9% of the vote. 

55 Amended Pen. C., § 190.6, subd. (d). 

56 Amended Pen. C., § 190.6, subd. (e).

57 Amended Pen. C., § 1227, subd. (a). 

58 New Pen. C., § 1239.1 

59 New Pen. C., §§ 1509 and 1509.1 

60 Amended Pen C., § 3600 

61 New Pen C., § 2700.1 

62 Amended Gov. C., § 68661 et seq.

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