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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Using Penal Code 1473 To Remove Past Convictions

Withdrawal Of Plea Using Penal Code 1473

Penal Code 1473.7 allows a person no longer imprisoned to vacate a conviction or a sentence. Undocumented person who are in danger of deportation may file a motion in order to clear their record of criminal convictions.

If the conviction is overturned, the criminal case starts from the beginning. Undocumented defendants will face the original criminal charges and will need to fight the case or enter a plea that does not have immigration consequences.
penal code 1473

Reasons To Withdraw A Plea

Under Penal Code 1473.7, there are 2 reasons to withdraw a guilty plea:

  1. If there was a prejudicial error during proceedings that damaged the person’s ability to meaningfully understand, defend, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere; or
  2. New evidence of innocence exists and requires the withdrawal of a plea.

Failure to Understand Immigration Consequences

If the prosecution opposes the Penal Code 1473.7 motion, they will need to provide evidence that the defendant understood the immigration consequences at the entry of plea. This evidence may include a signed waiver of constitutional rights, a probation or sentencing order, a transcript or recording of the entry of plea, and declarations or testimony from witnesses.
penal code 1473

Incompetent Counsel

A plea entered after January 1, 2017 can be withdrawn due to ineffective assistance of counsel. To do so it must be shown:

    1. That counsel’s performance was deficient in that it fell below an objective standard of reasonableness; and
    2. That he or she was prejudiced by that deficient performance

A plea entered before January 1, 2017 can only be withdrawn if the defendant asks his or her attorney about the immigration consequences of a plea and is given incorrect immigration advice. (People v. Landaverde).

When To File A Motion Under Penal Code 1473.7

The motion cannot be filed until:

        • The party receives a notice to appear in immigration authorities that asserts the conviction or sentence as the basis for removal.
        • The date a removal order based on the conviction or sentence becomes final.

The motion shall be filed with reasonable diligence after the later of the above dates.

The motion must also be filed without undue delay from the date the moving party discovered or could have discovered the evidence that provides the reason for the withdrawal of the plea.
penal code 1473

After Filing The Motion

The court clerk provides a hearing date when the motion is filed. At the hearing the Judge will decide whether or not to overturn the conviction. If the conviction is reversed, the defendant still faces criminal charges and will need to enter a plea or fight the case.

Entering An Immigration-Neutral Plea

In order to avoid deportation, a non-citizen defendant must enter a plea that does not have immigration consequences. One option is to plead to a charge or charges that are immigration-neutral but give the court and prosecution equivalent convictions and sentences.

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Proposition 57 Parole For Nonviolent Inmates

Proposition 57

Proposition 57, “The Public Safety and Rehabilitation Act of 2016,” allows parole consideration for people convicted of nonviolent felonies after they have completed the full term for their primary offense.

The goal of the law is to stop the revolving door of crime by better preparing inmates to succeed when they re-enter our communities.
proposition 57

Parole Process

All inmates currently serving a conviction for a non-violent offense as defined by the California Penal Code will be able to participate in the parole process. The new parole consideration process began on July 1, 2017.

However, inmates are not automatically granted parole. Parole MAY be granted to inmates who have completed the full term for their primary offense and demonstrated that they should no longer be considered a current threat to public safety.

Additional Credits

“Credits” are how the California Department of Corrections and Rehabilitation tracks the number of days remaining on inmate sentences. Proposition 57 allows inmates to earn additional credits for good behavior and participation in rehabilitative, educational and career training programs.

The previous credit system is based on the crime committed. Under proposition 57, credits will be based on conduct and participation in programs. The CDCR will now award increased credits for Good Conduct and Milestone Completion Programs. CDCR will also begin awarding credits for Rehabilitative Achievement and Educational Merit.

Who Can Receive Credits?

Inmates sentenced to death or life without parole are not eligible to receive credits. All other inmates are eligible.
proposition 57

When Did Credits Start?

  • Good Conduct Credits began on May 1, 2017.
  • Milestone Completion, Rehabilitative Achievement, and Educational Merit Credits began on August 1, 2017.

All credits except can be revoked for disciplinary infractions except Educational Merit Credits.

Changes To Juvenile Justice System

Proposition 57 removed the prosecutor’s authority to decide whether juveniles charged with certain crimes should be tried in juvenile or adult court. That decision will now be made by judges.

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CALIFORNIA BECOMES A SANCTUARY STATE

California Becomes A “Sanctuary State”

On October 5, 2017, Governor Jerry Brown signed the California Values Act. The “sanctuary state” law aims to protect California’s 2.3 million undocumented citizens from federal immigration authorities (ICE).
sanctuary state
Currently local authorities may release inmate information, including citizenship status, to federal immigration authorities. When the law becomes effective on January 1st, 2018, ICE will no longer be notified when undocumented immigrants are released from jail.

When Does The Sanctuary State Law Start?

The sanctuary state law is set to go into effect on January 1, 2018. If the Trump administration, which opposes the law, challenges the law in federal court, the start date of the law could be delayed until the conclusion of court proceedings.
sanctuary state

What Changes?

The California Values Act does not prevent ICE from looking for people without documentation or executing search warrants for non-citizens. The law does ban state and local agencies, excluding the California Department of Corrections and Rehabilitation, from enforcing “holds” on people in prison custody.

The act blocks the deputization of police as immigration agents and bars state and local law enforcement agencies from asking about immigration status. It also prohibits new or expanded contracts with federal agencies to use California law enforcement facilities as detention centers.
sanctuary state

California Responds To Trump Administration

State and local governments are locked in a battle with Attorney General Jeff Sessions over Sessions’ move to slash federal grant funding from “sanctuary jurisdictions.” A number of California cities have become sanctuary cities or cut ties with immigration authorities, including San Francisco and Los Angeles.

Proponents of the law argue that it makes immigrant communities safer by encouraging trust, cooperation and communication between immigrants and local authorities. Research has shown sanctuary cities have lower crime rates and that immigrants commit fewer crimes than U.S. citizens.

The Trump administration has tried to draw a link between undocumented immigrants and increases in violent crimes.
sanctuary state

Santa Barbara County Sheriff

Santa Barbara Sheriff Bill Brown, president of the California State Sheriff’s Association, opposed the California Values Act. Brown says people will be victimized as a result of the new law.

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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

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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).