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New Criminal Statutes in 2016

Richard L. Duquette, Attorney in Oceanside, CA

Here are the most important legislative changes in the California criminal justice system in 2016:

1. Ethics: Misconduct

The Legislature recently took a step in the right direction to help quell what Ninth Circuit Court of Appeals Judge Alex Kozinski's described as an "epidemic of prosecutorial misconduct." Accordingly, a ground breaking study documenting material indifference in the fair disclosure of discovery in criminal cases was produced at the Santa Clara Law School which supports this positive procedural development. Previously, a 2010 report by the California Innocence Project cited 707 cases in which State Courts found prosecutorial misconduct over eleven years. (Only six of the prosecutors were disciplined.) Under new Penal Code, Section 1424.5, subd. (a), Prosecutors who wrongfully withhold certain evidence are subject to a hearing. If the court finds a violation, the court is required to inform the state bar of California. (Bus & Prof. Code, § 6086.7.)

Early and complete disclosure of discovery will limit discovery motions and help lead to the early and just resolution of criminal cases; in turn, saving tax dollars and reducing the risk of wrongful convictions.

Richard Duquette is the sole proprietor at the Law Firm of Richard L. Duquette, where he has practiced criminal defense and plaintiffs' civil litigation since 1983. He received his Bachelor of Arts degree from the University of California, Irvine and his Juris Doctor from Western State University. Mr. Duquette was elected Chairman of the Criminal Law section of the North county Bar Association in 1997 and 2004 and the Personal Injury section in 2000. He may be reached by email at:

2. Jury Selection

The right to exercise preemptory challenges was expanded by the amendment of Code of Civil Procedure, Section 231.5. Instead of allowing a preemptory based on counsel's assumption a juror is biased, as before, it now imposes a blanket prohibition for any challenge based on a defined characteristic, such as race national origin, ethnicity, religion, age, sex, sexual orientation, gender, or disability. (See Gov't Code, § 11135.)

This law takes some of the guesswork out of peremptory challenges. It also preserves the number of peremptories allowed, in contrast to AB 213, which sought to reduce peremptory challenges from ten to six in misdemeanor cases (SB-213 failed to make it out of committee last year.)

3. Digital Privacy Protection

Lawmakers passed SB 178, the "Electronic Communication Privacy Act" (Penal Code, §§ 1546, et. seq.), which requires search warrants before law enforcement can obtain your emails, text messages, and similar digital information. It prohibits law enforcement from informally requesting that digital service providers voluntarily release such data to assist with criminal investigations. Penal Code, Section 1546.4 authorizes a motion to suppress digital information obtained contrary to its provisions (i.e., without a warrant and in violation of the Fourth Amendment.)

Also see new restrictions prohibiting the use of a "pen register" or a "trap and trace," except by law enforcement and only upon court order. (Penal Code, §§ 638.50, 638.51, and 638.53.)

Importantly, wireless data interception technology, which can intercept mobile phone calls and text messages, is more strictly regulated. (See Gov't Code, § 53166.) Now law enforcement agencies must implement a privacy policy to ensure the collection and use of such information is protected under the public's right to privacy and civil liberties. This appears to cover the mobile "stingray" devices used to mimic cell phone towers for purposes of intercepting cellular data.

As you all know, the United States Supreme Court in Riley v. California (134 S. Ct. 2473) held the "search incident to arrest" rules to not allow law enforcement to view and obtain every arrestee's cellular phone data. The Electronic Communication Privacy Act appears to be a step in the right direction.

4. Digital Privacy While on Probation

When convicted, the court may require a waiver of digital privacy that is part and parcel to a 4th Waiver. This may be illegal as it circumvents the new digital privacy laws (i.e., the Electronics Communication Privacy Act.) Plus, a blanket waiver of passwords and cell phones, computers and the like lack necessary nexus, particularity, probable cause required by law. This waiver is a minefield.

5. Controlled Substances

AB 370 is the Legislature's most recent attempt to alleviate some of the arcane, overbroad, and harsh controlled substance laws. Now, the possession and transportation of most controlled substances (including marijuana and magic mushrooms) in "personal use" amounts is just a crime of simple possession. This law amends Health and Safety Code, Sections 11360, 11379.5, and 11391.

6. Medical Marijuana

The newly created Business and Professions Code, Section 2525 makes it a misdemeanor for physicians to make cannabis recommendations, then refer patients to a facility in which the doctor has a financial interest.

Also, the new Department of Consumer Affairs' "Bureau of Medical Marijuana" was created.

7. Fines

Previously, fines were reduced by no less than $33 per day for those serving jail time to satisfy a monetary fine. Now the minimum is $125 per day. (See Penal Code, §§ 1205, 2900.5.)

8. Traffic Amnesty

California residents struggling with unpaid traffic fines or bail will be pleased to hear that eligibility for "amnesty" has been expanded under AB 405 (amending Penal Code, § 1214.1 and Vehicle Code, § 42008.8).

Under prior law, an amnesty program was available for those who had unpaid fines or bail for Vehicle Code infractions that was initially due on or before January 1, 2013. Payments under the prior law were accepted between October 1, 2015 through March 31, 2017. The program allowed those with unpaid bail or fines to apply to have the fines reduced or and to request permission to get their driver's license back. Reductions are available at 50%, or 80% for those on public assistance. This could reduce fines, which frequently exceed $1,000, to a mere $300, providing substantial relief for indigent populations.

The Legislature extended the program so it is now available to those who have not made payments after September 30, 2015.

The California Legislature also adopted a more relaxed and reasonable approach under the so-called "traffic amnesty" rules. Previously, the court could impose an additional $300 civil assessment against those who fail to appear or who fail to make timely payments on a fine installment plan, effective just 10 days after the court mails a warning letter. Perhaps most troubling, the prior law required payment of the civil assessment before the defendant can schedule his/her next court appearance.

Now, the penalty becomes effective 20 days after mailing the notice, and payment of bail, fines, penalties, fees or the civil assessment is not required before the court can vacate the assessment when the person appears. Payment of the civil assessment is no longer required to schedule a court appearance.

9. Voter Registration

California residents are now automatically registered to vote whenever they get a driver's license or state identification card under AB 1465.

10. Photographing the Police

California codified the long-existing First Amendment dictate that citizens are allowed to photograph and video record public interactions with law enforcement. New Penal Code Sections 148 and 69 make it clear that recording police interactions is not a crime and is not, in and of itself, probable cause to arrest.

11.Body Cams and Discovery requests before Preliminary hearing.

Law enforcement agencies are directed to adopt and maintain policies and procedures for downloading and storage of body camera footage. (Pen. Code, § 832.18.)

This law will facilitate enforcement of pre-preliminary hearing discovery motion orders, as Due Process requires disclosure independent of criminal statutes. This is true so long as there is a mere reasonable probability said body cam evidence effects probable cause, the charge or allegations Bridgeforth v. Superior Court (2013); Brady v. Maryland (1963) 373 US 83. Said procedure helps set up a motion to suppress evidence (under Penal Code Section 1538.5) at the preliminary hearing. Magallan v. Superior Court (2011) 192 Cal App 4th 1444.

Early production of relevant discovery will facilitate prompt and equitable resolution of criminal cases.

12. Vehicular Manslaughter

The statute of limitations in a vehicular manslaughter case where a person flees is expanded. The clock now runs when the person is identified, but no longer than six years after the offense. (Pen. Code, § 803.)

I hope this information assists you in your practice as you find justice for your clients.