By David Hollister, District Attorney
and Allison Sipe, Legal Intern
California continues to see significant changes to its criminal laws. In 2011, AB 109 shifted the responsibility for many felony prisoners from the state to the counties. In 2014, Proposition 47 re-designated many theft and drug crimes from felonies to misdemeanors. In 2016, Proposition 57 allowed serious felony offenders early release on parole. As to the question of whether these ongoing changes reduce prison populations or make our state less safe, time will tell. What is clear is this is a remarkably challenging time to be a California law enforcement officer or prosecutor. Whether your DA’s office agrees or disagrees with Sacramento’s changes, we will continue to enforce our state’s laws in a just manner consistent with our oath, obligations and responsibilities.
This past legislative session featured many changes to our criminal justice system. Below are short summaries of each new law impacting the criminal justice system with Senate Bills referenced as “SB” and Assembly Bills as “AB”. Four new laws (AB 1506, AB 1950, AB 3070 and AB 3234) have the potential to significantly impact the criminal justice system. Where appropriate and as to recently signed laws, I have included a brief comment section. Following the new laws is a section, without commentary, concerning Propositions on the Nov. 3, 2020 ballot which impact the criminal justice system.
New Laws Signed During the 2020 Legislative Session
SB-823: Juvenile Justice Realignment
(Eliminates Juvenile Prisons)
Beginning July 1, 2021, SB-823 will phase out California’s remaining juvenile prisons. Known as Realignment, this process will replace juvenile prisons with an Office of Youth and Community Restoration and send grants to counties to provide custody and supervision.
Comment: In Plumas County we are fortunate it is exceptionally rare for a juvenile offender to commit a crime leading to a sentence in a state facility (formerly known as the California Youth Authority).
(Removes Juvenile Court from Truancy)
Effective January 1, 2021, AB-901 ends the practice of referring youth who are having problems in school to probation programs. It repeals the court’s authority to require a student who is insubordinate or disorderly to be brought to school daily, and it removes the authority of the court to adjudge a minor as a ward of the court for habitually refusing to obey orders of school authorities. AB-901 also prohibits a probation department from maintaining a formal caseload or creating mandated probation conditions for those minors who are not on probation; instead, AB-901 increases the referral of youth to community-based resources for services.
Comment: The Truancy Prevention Team (DA Investigators working in conjunction with Plumas County schools) takes a problem-solving approach to truancy. It is a rare occurrence where a student’s truancy reaches a point where judicial intervention is needed.
AB-1185 County Board of Supervisors: Sheriff Oversight
(Creates BOS Oversight and Inspector General re Elected Sheriff)
AB-1185 authorizes a county to establish both a sheriff oversight board and an office of the inspector general to assist the board of supervisors with duties as they relate to the sheriff. Additionally, this law authorizes the chair of the oversight board and the inspector general to issue a subpoena or subpoena duces tecum (subpoena with production of evidence) to discuss a matter within their jurisdiction. This change will take effect on January 1, 2021.
Comment: Our Sheriff’s Office has traditionally and consistently maintained a positive and productive relationship with our Board of Supervisors as well as with its law enforcement partners at the local, state and federal level.
AB-1196: Peace Officers Use of Force
(Eliminates Use of Chokeholds)
Signed by Governor Newsom, this new law prohibits the use of chokeholds (i.e. application of pressure to a person’s windpipe) and carotid holds (i.e. application of pressure to slow the flow of blood to the brain) by law enforcement. This change will be effective on January 1, 2021.
SB-1290: Juveniles Costs
(Eliminates Court-Ordered Fees Parents were Ordered to Pay in Juvenile Cases)
Effective January 1, 2021, SB-1290 will cancel certain fees for juvenile offenders and their families. Specifically, SB-1290 vacates court-ordered costs prior to January 1, 2018 for parents or guardians of juveniles, minors who were ordered to participate in drug and substance abuse testing, and adults 21 and under at the time of their home detention.
***AB-1506: Police Use of Force
(Shifts Officer Involved Shooting Investigations from the County to the State)
AB-1506 requires the Attorney General to investigate fatal police shootings of unarmed civilians and creates a new division within the Department of Justice to review the use-of-force policy and make recommendations. Starting on July 1, 2023, the Attorney General will operate a Police Practices Division within the department to review the use of deadly force policies of the law enforcement agency and make recommendations.
Comment: Plumas County currently operates under an Officer Involved Shooting MOU comprised of Plumas County law enforcement agencies and led by the District Attorney’s Office. This partnership and approach has proven both successful and beneficial to the community during the two officer involved shootings which occurred in the last ten years. AB 1506 will remove local agencies from the investigation, charging decision and prosecution of officer involved shootings. My personal belief is Plumas County investigations and charging decisions as serious as this, when a police officer takes a civilian’s life, should be made in Plumas County with direct accountability to our Plumas County residents rather than by a state agency based in Sacramento.
AB-1775: False Reports and Harassment
(False 911 Calls Made to Discriminate are Hate Crimes)
Under AB-1775, making a false 911 call on the basis of discrimination—of someone’s race, ethnic background, gender, religion, or sexual orientation—is a hate crime. Making such a call can result in a misdemeanor sentence of up to one year in jail and a fine of up to $2,000. Additionally, this law allows the victim to file a lawsuit against the person who made the false 911 call. This change will be effective on January 1, 2021.
(Reduces Maximum Term of Probation)
This law caps probation to a maximum of one year for misdemeanor offenses (unless the statute provides otherwise) and two years for felony offenses, with some exceptions. This change will be effective on January 1, 2021.
Comment: Currently, the maximum term of probation is up to five years for felony offenses and three years for misdemeanor offenses (though certain misdemeanor offenses such as child abuse and DUIs with prior convictions can be up to five years). The reduction in available time to supervise and rehabilitate may detrimentally impact rehabilitation in certain crimes. On a related note, the decrease in the number of people currently supervised on probation will continue as a result of AB 1950. Probation’s caseload, due to 2014’s Prop 47, has already decreased from 433 in 2010 to 157 in 2019 – a 63.7% reduction.
AB-2321: Juvenile Court Records-Access
(Assistance to Foreign Nationals Victimized by Juvenile Offenders)
AB-2321 provides immigration assistance to foreign nationals victimized by juvenile offenders. Previously, records of juvenile offenders were sealed; the new law authorizes a judge or prosecutor limited access in order to process the request of a victim or victim’s family member to certify victim helpfulness on specified United States Department of Homeland Security forms. This change will be effective on January 1, 2021.
AB-2425: Juvenile Police Records
(Safeguards Juvenile Records from Public Inspection)
This new law takes steps to ensure the record privacy of juveniles who have interacted with the juvenile justice system. This change will be effective on January 1, 2021.
AB-2542: California Racial Justice Act
(Elimination of Racial Bias in Criminal Cases)
The California Racial Justice Act makes it possible for a person charged or convicted of a crime to challenge racial bias in their case, upon a prima facie showing. If a suspect is successful in showing that racial bias played a role in their case, they could be entitled to a new trial or sentence. This change will take effect on January 1, 2021.
AB-2606: Criminal Justice-Supervised Release File
(Probation to Update PRCS Records)
Under AB-2606, each county probation department or other supervising county agency must update any supervised release file that is available to them on CLETS. This is done by entering any person who is placed on any form of post-conviction supervision within their jurisdiction, as specified. This change will be effective on January 1, 2021.
AB-3043: Corrections – Confidential Calls
(Confidential Calls between Prison Inmate and Attorney)
Previous regulations permit an inmate to make a confidential phone call, as defined, with their attorney only as approved on a case-by-case basis by the institution. Under the new AB-3043, the department is required to approve an attorney’s request to make confidential calls and to provide the inmate at least 30 minutes once per month, per case, to make those calls—unless the inmate or attorney requests less time. This change will be effective on January 1, 2021.
***AB-3070 Juries Peremptory Challenges
(Bias in Jury Selection)
AB-3070 impacts jury selection. It prohibits a party from using a peremptory challenge to remove a prospective juror on the basis of the juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation—or the perceived membership of the prospective juror in any of those groups. Many neutral reasons for excusing a juror are now presumed to be unlawful and subject to challenge. Additionally, AB-3070 allows a party to object to the use of a peremptory challenge based on these criteria, and it requires the party exercising the peremptory challenge to state the reasons for exercising the peremptory challenge. Until January 1, 2026, these provisions do not apply to civil cases.
Comment: For some 40 years it has been illegal for an attorney to exercise a peremptory challenge in a criminal trial and excuse a potential juror because of race, ethnicity, gender, etc. AB 3070 extends this law to prevent a member of a protected class from being excused as a juror in a criminal case for virtually any reason, including, sleeping during jury selection, inability to understand English, hostility to law enforcement, etc. unless the attorney making the challenge can show by clear and convincing evidence the exclusion was not based on a protected characteristic.
***AB-3234: Public Safety
Effective January 1, 2021, AB-3234 authorizes a judge in the superior court to offer misdemeanor diversion to a defendant—over the objection of a prosecuting attorney. If the defendant complies with all required terms at the end of the diversion period, the action will be dismissed against the defendant. This would result in erasure of the arrest upon which the diversion was imposed.
Comment: This bill was the subject of a “Where I Stand” editorial by the California District Attorneys’ Association on September 21, 2020. AB 3234 allows a judge to grant a defendant diversion in cases involving drunk drivers, elder abuse, child abuse and weapons offenses. MADD strongly opposed AB 3234. From a Plumas County perspective, I have a great deal of confidence our judges will grant diversion only in cases where justice and the safety of our community allow. In a broader sense, I expect AB 3234 will result in a very uneven application throughout California.
Propositions Impacting Criminal Justice (Election Tuesday November 3, 2020)
California Proposition 17: Voting Rights Restoration for Persons on Parole (2020)
Currently, California disqualifies people with felonies from voting until both their imprisonment and their parole are completed. Prop 17 would maintain the original imprisonment requirement but remove the parole requirement. If passed, this amendment would restore a person’s right to vote upon completion of their prison term while in the process of completing parole.
California Proposition 20: Criminal Sentencing, Parole, and DNA Collection Initiative (2020)
In 2011 and 2016, measures were passed to reduce the state’s prison population. These changes shifted nonviolent inmate imprisonment from the state to county level, reclassified several crimes from felonies or wobblers (a crime with the potential to be classified as either a felony or misdemeanor) to misdemeanors, and increased parole chances for felons convicted of nonviolent crimes. If passed, Prop 20 would add crimes back to the list of violent felonies for which early parole is restricted, restore certain types of theft and fraud crimes as wobblers (chargeable as a felony or misdemeanor), and require DNA collection in certain misdemeanor cases.
California Proposition 25: Replace Cash Bail with Risk Assessments Referendum (2020)
Currently, California utilizes a cash bail system to release detained criminal suspects before their trials. Senate Bill 10 was designed to end the use of cash bail for all detained suspects awaiting trials. If passed, Prop 25 would uphold SB 10 and replace the cash bail system with a risk assessment system to determine whether a detained suspect should be granted pretrial release and, if so, under what conditions.