Firearm Enhancements No Longer Mandatory

firearm enhancements

Firearm Enhancements May Be Stricken

Senate Bill 620 was signed into law on October 11, 2017. The law gives judges the authority to strike or dismiss firearm enhancements at sentencing. Judges may dismiss or strike enhancements if doing so is “in the interests of justice.”

What is an Enhancement?

An enhancement adds time to the length of a prison or jail sentence. In the case of firearm enhancements, as much as 25 years to life can be added to a sentence.
firearm enhancements

California Firearm Enhancements

The firearm enhancements affected by Senate Bill 620 are Penal Code Sections 12022.5 and 12022.53.

Penal Code Section 12022.5

Additional 3, 4, or 10 years for use of a firearm in the commission of a felony or attempted felony (unless use of a firearm is an element of the felony).

Additional 5, 6, or 10 years for use of an assault weapon or machine gun during the commission of a felony or attempted felony.

Penal Code Section 12022.53

Additional 10 years for use of a firearm during the commission of a Specified Felony, even if the firearm is not loaded or operable.

Additional 20 years for discharging a firearm during a Specified Felony.

Additional 25 years to life for causing death or great bodily injury using a firearm.

Specified Felony

Specified Felonies include murder, mayhem, kidnapping, robbery, carjacking, rape, and all felonies punishable by death or life in prison.

For a complete list see Penal Code Section 12022.53.
firearm enhancements

Judicial Discretion

Prior to the passage of Senate Bill 620, judges were required to sentence defendants to additional prison or jail time upon a jury finding that a firearm was used during a felony.

Judges now have the option to strike firearm enhancements if doing so would be in the Interests of Justice.

Interests of Justice

The “Interests of Justice” is whatever a judge determines to be fair and equitable.

What is a Firearm?

A firearm is:

  • A device.
  • Designed to be used as a weapon.
  • Shoots a projectile through a barrel by explosion or other form of combustion.

What is an Assault Weapon?

“Assault weapons” are semiautomatic firearms listed under Penal Code Section 30510, et seq.
firearm enhancements

What is a Machine Gun?

Machine guns are any weapon that automatically shoots more than one shot by a single function of the trigger.

Machine guns also includes any parts used in converting a weapon into a machine gun AND guns that are readily convertible to machine guns.

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(805) 962-5103
RobertLandheer@gmail.com

Proposition 47 Early Release From Prison

Proposition 47 – Reducing Charges

Proposition 47 reduces the punishment for certain felony drug and property offense charges under $950 to a misdemeanor. It does not apply to registered sex offenders and people with prior convictions for serious or violent crimes.

Re-sentencing For Inmates

Prop 47 permits re-sentencing for people currently serving a prison sentence, or with prior felony convictions. Charges eligible to be reduced to misdemeanors are listed below.

proposition 47

Must File A Petition

No one is automatically released from prison under Proposition 47. Instead you must petition the court to reduce your charges and re-sentence you.

Eligible inmates who petition the court are required to be resentenced unless the court finds an unreasonable risk to public safety.

Risk To Public Safety

When determining the risk to public safety, the court may consider the offender’s criminal history, the types of crimes committed and when they occurred, the extent of injury to victims, the length of prior prison commitments, the inmate’s disciplinary and rehabilitation records while incarcerated, and any other relevant evidence.

What Is The Deadline To Petition?

Your petition must be filed with the court before November 4, 2022.

proposition 47

How Do I File A Petition?

Under Prop 47, in order to petition for a reduction of a crime to a misdemeanor, you must first obtain a copy of your criminal record. Next, you must obtain a petition form for reclassification. Most counties have created petition forms that can be found here.

For counties that have not created petition forms, contact the local courthouse and ask which form to use.

Once the petition is complete, send one copy to the District Attorney’s Office in the county where you were convicted. The other copy is sent to the Superior Court in the county where you were convicted.

proposition 47

Proposition 47 Applies To The Following Charges:

  • Shoplifting – Penal Code 459 – Shoplifting
  • Forgery – Penal Code 470-476
  • Fraud/Bad Checks of $950 or less – Penal Code 476a
  • Grand Theft of $950 or less – Penal Code 487
  • Petty Theft/Shoplifting of $950 or less – Penal Code 484, 484/666
  • Possession of Methamphetamine – Health & Safety 11377
  • Possession of Controlled Substance – Health & Safety 11350
  • Possession of Concentrated Cannabis – Health and Safety 11357(a)
  • Receiving Stolen Property – Penal Code 496

Contact Us

(805) 962-5103
RobertLandheer@gmail.com

Now a Felony for DA to Withhold Evidence

withhold evidence

New California law makes it a felony for prosecutors to withhold exculpatory evidence.

Under the new law, signed by Governor Jerry Brown on Friday, prosecutors can receive up to three years in prison if they alter or intentionally withhold exculpatory evidence. Previously, such conduct was only a misdemeanor.

The change in the law was inspired in part by the conduct of the Orange County District withhold_prosecutorAttorney’s Office. In March 2015, Orange County Superior Court Judge Thomas Goethals removed the District Attorney’s office from a high-profile mass-murder case. Goethals said prosecutors violated the defendant’s rights by failing to turn over evidence. Numerous other Orange County criminal cases have collapsed due to withholding of evidence.

The story of Obie Anthony also inspired legislators to pass the law. Anthony was convicted of a 1995 murder outside a Los Angeles brothel and exonerated in 2011 after it was revealed the key witness, a pimp, had received leniency in exchange for his testimony. The full bill can be viewed here.

Drugged Driving – Is it a problem?

DUID Driving Under the Influence of Drugs

The National Highway Traffic Safety Administration (NHTSA) has conducted two surveys on “drugged” driving (2007 and 2013-14). The NHTSA also collects state data on accidents involving impaired drivers.

After reviewing this data, the NHTSA in 2014 concluded, “we cannot infer that drugged driving has increased.” Nor, according to the NHTSA, is there evidence sufficient to make inferences about drug impairment or crash causation.

Senator Bob HuffHowever, according to Senator Bob Huff (D – San Dimas), the NHTSA data reveals an increase in “drugged” driving on California highways and roads. “Drugged driving is quickly becoming a serious public health and safety problem,” says Huff.

Huff has introduced a bill that would authorize police to use an oral fluid test to detect the presence of marijuana, cocaine, methamphetamine and opiates.

 

Prescription drug use is not a defense to DUI-D. However, methamphetamine, opiates, and benzodiazepine are found in the prescription drugs Adderall, OxyContin, and Xanax, respectively.

Currently California has no standards for drug impairment. Thus, any positive drug test could result in your arrest for DUI-D. (In Colorado and Washington, where recreational marijuana is legal, a driver is presumed impaired if his or her blood contains more than five nanograms of active THC per milliliter.)

NHTSA Senator Bob Huff drugged drivingHuff has not released any details on which oral swab device(s) will be used by law enforcement. However, a 2006 study concluded no swab device is reliable enough for roadside screening of drivers.

There are two other problems with oral swab tests.

  • Drugs presence does not imply impairment: Drugs will stay in your system for at least a short time after the effects of the drug have worn off.
  • Drug concentration is not related to impairment: Unlike alcohol, increased drug concentration is not correlated to impairment.

 

Oral Fluid Test Swab

Time to Pass a Bill?

“Drugged” driving could be a problem we need to confront. However, further research is still needed to determine:

    • Whether drunk driving is increasing in the population
    • The impairment effect of various drugs

In addition, reliable roadside testing equipment needs to be developed.

The bill (SB 1462) goes to the Senate Public Safety Committee on April 19.


Sources

  1. Berning, A., & Smither, D. D. (2014) Understanding the limitations of drug test information, reporting, and testing practices in fatal crashes. (Traffic Safety Facts Research Note. DOT HS 812 072). Washington, DC: National Highway Traffic Safety Administration. p. 2-3;
  2. Berning, A., Compton, R., & Wochinger, K. (2015, February). Results of the 2013-2014 National Roadside Survey of Alcohol and Drug Use by Drivers. (Traffic Safety Facts Research Note. Report No. DOT HS 812 118). Washington, DC: National Highway Traffic Safety Administration. p. 3-4.
  3. Verstraete, A., Raes, E. (March 2006) Rosita-2 Project Executive Summary. Gent, Belgium: Ghent University.
  4. Armentano, P. (September 16, 2011) You are Going Directly to Jail: What it means, who’s behind it, and strategies to prevent it. (NORML Foundation).
  5. Occupational Employment and Wages, May 2015: 33-3051 Police and Sheriff’s Patrol Officers. (2016) Bureau of Labor Statistics.

Notes:

  1. Under current law drivers can refuse any preliminary intoxication test (including the proposed swab test).
  2. The NHTSA has conducted 2 roadside surveys (2007 & 2013) at 300 roadside sites where drivers voluntarily submit to testing for approximately $60.
  3. The NHTSA was able to detect significantly smaller amounts of drugs in the 2013 survey.
  4. Cheaper testing equipment increased the prevalence of testing from 2007-2013.
  5. Synthetic cannabis and other drugs were not tested in 2007.
  6. Improved tests since 2007 can detect more types of drugs
  7. The locations of some roadside test sites changed between 2007 and 2013.
  8. The data does not allow for comparison to states where marijuana is legalized.
  9. The majority of drivers in fatal accidents are not tested for drugs.
  10. There is no consistent policy for drug testing across states.
  11. The FARS database can only record 3 drugs per individual.
  12. A positive drug test does not necessarily indicate impairment.)
  13. Devices currently on the market range from $6 to $25.
  14. As of 2015, there are an estimated 70,930 police and sheriff patrol officers in California.
  15. An ongoing pilot program in Victoria, Australia, utilizing road side oral screening technology has also yielded several false positives when used under roadside conditions.
  16. An international assessment or roadside saliva collection devices by the U.S. Department of Transportation and other agencies determined, ‘[N]o device was considered reliable enough in order to be recommended for roadside screening of drivers.’”)
  17. Under People v. Williams (2002) 28 Cal. 4th 409, 414, preliminary alcohol screening was admitted to prove intoxication if the instrument was reliable and administered properly by a competent operator. A new scientific test is reliable if there is “general acceptance of the new technique in the relevant scientific community.” People v. Kelly (1976) 17 Ca. 3d 24, 30. “For a variety of reasons, Frye was deliberately intended to interpose a substantial obstacle to the unrestrained admission of evidence based upon new scientific principles.” Id. at 31. (See also Frye v. United States (1923) 293 F. 1013.)
  18. At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment.” Factors that make prediction difficult for most other psychoactive drugs include:
    • The large number of different drugs that would need to be tested (extensive testing of alcohol has been under- taken over many decades, whereas relatively little similar testing has occurred for most other drugs).
    • Poor correlation between the effects on psychomotor, behavioral, and/or executive functions and blood or plasma drug concentrations (peak psychomotor, behavioral, and executive function effects do not necessarily correspond to peak blood levels; detectable blood levels may persist beyond the impairing effects or the impairing effects may be measurable when the drug cannot be detected in the blood).
    • Sensitivity and tolerance (accentuation and diminution of the impairing effects with repeated exposure).
    • Individual differences in absorption, distribution, action, and metabolism (some individuals will show evidence of impairment at drug concentrations that are not associated with impairment in others; wide ranges of drug concentrations in different individuals have been associated with equivalent levels of impairment).
    • Accumulation (blood levels of some drugs or their metabolites may accumulate with repeated administrations if the time-course of elimination is insufficient to reduce or remove the drug or metabolite before the next dose is administered).
    • Acute versus chronic administration (it is not unusual to observe greater impairment during initial administrations of drugs than is observed when the drug is administered over a long period of time).

 

Stay Out of Isla Vista This Weekend

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2016

DELTOPIA STREET FESTIVAL

This weekend is the annual DELTOPIA street festival on Del Playa Street in Isla Vista. An estimated 10,000 students will be out partying in Isla Vista, with over 100 law enforcement officers keeping a watchful eye. If you do not have a reason to be in Isla Vista this weekend, it would be a good idea to avoid the area.

 

If you do go to Isla Visa, read the Student Affairs and Major Events Guide before you go.

 

Law Enforcement Presence

According to the UCSB Current, the UCSB Police Department will have about 100 officers helping to patrol the campus and Isla Vista; the Santa Barbara County Sheriff’s Department and the California Highway Patrol (CHP) will also have personnel on hand doing saturation patrols in and around Isla Vista. – See more

Starting tomorrow, April 1st at 5:00 pm to Sunday, April 3rd at 7:30 a.m., Goleta Beaches will be Closed, Restricted Parking will be enforced in Isla Vista and Goleta and Sobriety Check Points will be set up in and around Isla Vista and Goleta and Highway 101 between Ventura and San Luis Obispo.

These are some of the measures that will be put in place to curb Alcohol Abuse and the number of people entering UCSB for the annual Deltopia Celebration.

Sobriety Check Points Are Lawful

Law Enforcement is constitutionally permitted to set up Sobriety Check Points with Public Notice and following specific legal protocols for the temporary questioning of drivers and/or detentions/searches with probable cause.

In Michigan Dept. of State Police v. Sitz496 U.S. 444 (1990), the United States Supreme Court voted 6-3, that sobriety checkpoints met the Fourth Amendment standard of “reasonable search and seizure.”

The language of the opinion written by then Chief Justice Rehnquist is unambiguous, Sobriety Check Points are constitutional.

‘[A] Fourth Amendment ”seizure” occurs when a vehicle is stopped at a checkpoint. . . . The question thus becomes whether such seizures are ”reasonable” under the Fourth Amendment…. We address only the initial stop of each motorist passing through a checkpoint and the associated preliminary questioning and observation by checkpoint officers…. In sum, the balance of the state’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment. . . .

DUI Checkpoints

Sobriety checkpoints function as a general purpose investigatory tactic where police can get a close look at passing motorists by detaining them briefly. A roadblock stop is quick, but it gives police a chance to check tags and licenses, while also giving officers a quick whiff of the driver’s breath and a chance to peer into the vehicle for a moment.

Police are permitted to stop you briefly, but they may not search you or your car unless they have probable cause that you’re under the influence or you agree to the search. Police closely monitor cars approaching the roadblock. Trying to evade the Checkpoint may cause police to follow you and question you as to the reason you had for avoiding the roadblock.

Drug Checkpoints Are Unlawful

Drug Checkpoints are unconstitutional. However, if in the course of a Sobriety Check Point stop a police officer smells marijuana, or sees what he believes is drug paraphernalia or drugs during DUI sobriety checkpoint stop, you may subject to the search of your vehicle or person. During a prolonged detention of this type, you are not required to answer officers questions or admit to breaking the law.

Driving Under the Influence (DUI)

Per California’s driving under the influence (DUI) laws, it’s illegal to operate a motor vehicle with any of the following blood alcohol concentration (BAC) percentages:

  • 08% or higher― 21 years old or older operating a regular passenger vehicle.
  • 04% or higher―operating a commercial vehicle.
  • 01% or higher―younger than 21 years old.

The state’s DUI laws include medications, too. You can’t legally drive if you’ve consumed illegal drugs or:

  • Excessive amounts of drugs with alcohol in them (such as cough syrup).
  • Prescription medication.
  • Over-the-counter medication.

DUI convictions stay on your driving record for 10 years.

Understand Your DUI Penalties

Not all DUI penalties or charges are the same. Depending on your age, license type, and any previous convictions, you could face:

  • Admin Per Se license suspension.
  • Criminal license suspension
  • Jail time or community service.
  • DUI school.
  • Installation of an ignition interlock device (IID).
  • SR-22 filing.

Misdemeanors and Infractions

Minor in possession is only punishable by community service and/or a fine, it is a misdemeanor. The court will permit a first time offender to enroll in and complete a state certified youth offender class which will have the effect of reducing the misdemeanor to an infraction which will not affect your criminal record.

If you are cited for a DUI, Drunk in Public (PC 647(f), Resisting Arrest (PC 148) or any other misdemeanor you should contact an attorney for advice.