Prop. 57: California Judges Decide What to do With Minors

What is Prop. 57?

Prop. 57, The Public Safety and Rehabilitation Act of 2016, removed the prosecutor’s authority to decide whether minors should be charged in juvenile or adult court. In California, that decision is now made by judges.

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Judge Decides if Minor Will be Tried as Adult

Prosecutors can no longer file charges directly against a minor in “adult” court. Only a juvenile court judge can determine whether a minor can be prosecuted and sentenced as an adult. The Judge must conduct a “fitness” or “transfer” hearing, taking into account various factor such as the minor’s age, maturity, criminal sophistication, and likelihood for rehabilitation. (People v. Vela (2018).)

Choosing Between Juvenile or Adult Court

Judges look to the five factors laid out in Welfare and Institutions Code 707(a)(2) to determine whether to transfer a minor’s case to adult court.

    1. The degree of criminal sophistication exhibited by the minor;
    2. Whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction;
    3. The minor’s previous delinquent history;
    4. Success of previous attempts by the juvenile court to rehabilitate the minor; and
    5. The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

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Prop. 57 Can Apply Retroactively

Pending Cases

Minors whose cases were unresolved or pending appeal when Prop. 57 was passed are still entitled to the protections of Prop. 57. The juvenile court must conduct a fitness hearing to determine whether such minors should be tried in adult court. (People v. Diaz (2018).)

Final Cases

Prop. 57 does not apply to a minor whose judgment was final. A judgment is final when the trial court imposes a state prison sentence and suspends execution of that sentence during a probationary period. (People v. Barboza (2018).)

prop. 57

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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.
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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.
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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.
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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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(805) 962-5103
RobertLandheer@gmail.com

Sting in Santa Barbara

Sting in Santa Barbaraprostitution sting santa barbara

On Friday July 8th, 2016, law enforcement ran a sting in Santa Barbara. Officers corresponded over the internet with individuals, who were arrested when they arrived at an agreed location. At least a dozen people were arrested and charged. The charges include disorderly conduct, a misdemeanor.

The RISE Act: Repeal Ineffective Sentencing Enhancements

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SB 966, introduced by Senator Holly Mitchell (D-Los Angeles), would repeal the three-year sentence enhancement for prior drug convictions. The enhancement is applied consecutively — three years for every prior conviction for possession for sale, sale or similar drug offense to any person currently convicted for a similar offense. Since realignment, this has resulted in hundreds being sentenced to county jails for more than five or even ten years.

The Failure of Drug Enhancements

These enhancements were originally intended to deter drug selling, and reduce the availability of controlled substances. As with other punitive drug war strategies, they are a proven failure — drugs are cheaper, stronger and more widely available than any time in our state’s history.  These enhancements have the effect of sentencing thousands of people — mainly young men and women of color — to long periods of incarceration in overcrowded state prisons and county jails, destabilizing families and communities.

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Senator Holly Mitchell (D – Los Angeles)

Furthermore, this failed approach has proven enormously expensive, robbing state and local budgets that should be spent on schools, health and social services, and policies that actually reduce drug use — drug treatment, after-school programs, and housing, among them.

The RISE Act will repeal costly and ineffective sentencing enhancements, reflecting the Legislature’s and voters’ consensus that we must divest from mass incarceration in order to invest in vitally needed public services.

Why do we need the RISE Act?

The RISE Act will free up taxpayer dollars for investment in cost-effective community-based programs instead of costly jail expansion. By repealing enhancements for prior drug convictions, SB 966 would reduce jail overcrowding and stop the rush to build and staff costly new jails.

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Since 2007, California has spent $2.2 billion on county jail expansion – not including the costs borne by the counties for these construction projects, the increased staffing, or the debt service for these high-interest loans. These funds could be better invested in programs and services that meet community needs and improve public safety, including community-based mental health and substance use treatment programs, job programs, and affordable housing.

Governor Brown endorsed a measure for the 2016 ballot that will allow persons to be paroled after they complete their base sentence, regardless of enhancements. However, that measure only applies to persons sentenced to state prison, and will have no effect on jail overcrowding.

The Rise Act – SB 996

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California Institution for Women, Corona, CA

SB 966 would address extreme sentences. Enhancements result in sentences being far more severe than is just, sensible, or effective. Under current law, a person may face two to four years in jail for possessing drugs for sale under the base sentence. But if the person has two prior convictions for possession for sale, they would face an additional six years years in jail – for a total of ten years. As of 2014, there were more than 1,700 people in California jails sentenced to more than five years. The leading cause of these long sentences was non-violent drug sale offenses.

SB 966 would reduce racial disparities in the criminal justice system. Although rates of drug use and sales are comparable across racial lines, people of color are far more likely to be stopped, searched, arrested, prosecuted, convicted, and incarcerated for drug law violations than are whites. Research also shows that prosecutors are twice as likely to pursue a mandatory minimum sentence for Blacks as for whites charged with the same offense.

criminal_justiceSB 966 would help restore balance in the judicial process. Prosecutors use enhancements as leverage to extract guilty pleas, even from the innocent. Prosecutors threaten to use enhancements to significantly increase the punishment defendants would face should they exercise their right to a trial. According to Human Rights Watch, “plea agreements have for all intents and purposes become an offer drug defendants cannot afford to refuse.”

 

SB 966 will stop the cruel punishment of persons suffering from a substance abuse disorder.  People who suffer untreated substance abuse disorders often sell drugs to pay for the drugs that their illness compels them to consume. It is fundamentally unjust, as well as counterproductive, to put a sick person in jail to address behaviors better handled in a medical or treatment setting.

Sentencing Enhancements Harm Communities

santa_barbara_criminal_defenseSentencing enhancements do not prevent or reduce drug sales and have destabilizing effects on families and communities. Research finds that the length of sentences does not provide any deterrent or significant incapacitation effect: longer sentences for drug offenses do not reduce recidivism, nor do they affect drug availability.

Most people who commit crimes are either unaware of penalties or do not think they will be caught. Research shows that people incarcerated for selling drugs are quickly replaced by other people.

However, incarceration can lead to more crime by destabilizing families and communities. Many people who return from incarceration face insurmountable barriers to finding jobs and housing and reintegrating into society. Family members of incarcerated people also struggle with overwhelming debt from court costs, visitation and telephone fees, and diminished family revenue. The longer the sentence, the more severe these problems.

 

Support:

  • Californians United for a Responsible Budget (co-sponsor)
  • Drug Policy Alliance (co-sponsor)
  • Ella Baker Center for Human Rights (co-sponsor)
  • A New PATH (Parents for Addiction Treatment and Healing)
  • A New Way of Life
  • ACLU of California
  • Alameda County Public Defender
  • Alliance for Boys and Men of Color
  • All of Us or None San Diego
  • American Friends Service Committee
  • Anti Recidivism Coalition
  • Any Positive Change, Inc.
  • Arts for Incarcerated Youth Network
  • Asian Americans Advancing Justice California
  • Asian American Criminal Trial Lawyers Association
  • Asian Pacific Environmental Network
  • Asian Prisoner Support Committee
  • Bay Area Black Worker Center
  • Bay Area Community Resource Workforce Development
  • Bend the Arc
  • California Association of Alcohol and Drug Program Executives
  • California Attorneys for Criminal Justice
  • California Coalition for Women Prisoners
  • California Immigrant Policy Center
  • California Partnership
  • California Prison Moratorium Project
  • California Public Defender Association
  • Californians for Safety and Justice
  • Causa Justa : Just Cause
  • Center for Health Justice
  • Center for Living and Learning
  • Center on Juvenile and Criminal Justice
  • Centro Legal De La Raza
  • Coalition for Humane Immigrant Rights of LA
  • Coleman Advocates for Children and Youth
  • Communities United Against Violence
  • Communities United for Restorative Youth Justice
  • Community Works: Project WHAT!
  • Contra Costa County Office of the Public Defenders
  • Contra Costa Supervisor John Giaoa
  • Courage Campaign
  • Critical Resistance – Los Angeles
  • East Bay Alliance for a Sustainable Economy
  • Enlace
  • Essie Justice Group
  • Fathers & Families of San Joaquin
  • Forward Together
  • Friends Committee on Legislation
  • Further the Work
  • Harm Reduction Services
  • HealthRIGHT360
  • Healthy Communities Oakland
  • HIV Education and Prevention Project of Alameda
  • Holman United Methodist Church
  • Human Rights of the Incarcerated at Cal
  • Immigrant Legal Resource Center
  • Inland Congregations United for Change
  • Islamic Shura Council of Southern California
  • Justice Not Jails
  • Justice Now
  • Justice Policy Institute
  • L.A. Community Action Network
  • Law Enforcement Against Prohibition
  • Lawyers’ Committee for Civil Rights, SF.
  • Legal Services for Prisoners with Children
  • Marijuana Lifer Project
  • Motivating Individual Leadership for Public Advancement
  • Monterey Bay Central Labor Council
  • Mortgage Personnel Services
  • National Association of Social Workers, California Chapter
  • National Association of Social Workers, Women’s Council – CA Chapter
  • National Center for Youth Law
  • Needle Exchange Emergency Distribution – Berkeley
  • Oakland Rising
  • Office of Richmond Mayor Tom Butt
  • Orange County Needle Exchange Program
  • Parent Voices California
  • PICO California
  • Presente
  • Prison Activist Resource Center
  • Prison Law Office
  • Prison Policy Initiative
  • Project Inform
  • Reentry Success Center
  • Resource Center for Nonviolence
  • Root & Rebound: Reentry Advocates
  • Riverside Temple Beth El
  • Rubicon Programs
  • RYSE Youth Center
  • Safe Return Project
  • San Diego Organizing Project
  • San Francisco Public Defender’s Office
  • Santa Cruz County Community Coalition to Overcome Racism
  • SHIELDS for Families
  • Silicon Valley DeBug
  • Sin Barras
  • Street Level Health Project
  • Swords to Plowshares
  • Tarzana Treatment Centers
  • The Sentencing Project
  • The S.T.O.P. Hepatitis Task Force
  • The Village Project, INC
  • The Women’s Foundation of California
  • Time for Change Foundation
  • Transgender Gender Variant Intersex Justice Project
  • Underground Scholars Initiative at UC Berkeley
  • UNITE HERE! 2850
  • Western Regional Advocacy Project
  • W. Haywood Burns Institute
  • Young Women’s Freedom Center
  • Youth Justice Coalition

Individuals:

  • Sheila Pinkel, Professor Pomona College

For more information:

Lizzie Buchen, Californians United for a Responsible Budget, lizzie@curbprisonspending.org

Emily Harris, Ella Baker Center for Human Rights, emily@ellabakercenter.org

Eunisses Hernandez, Drug Policy Alliance, euhernandez@drugpolicy.org

Glenn Backes, Public Policy Research & Consulting/EBC/DPA glennbackes@mac.com

November Ballot Measure Would Keep Children in Juvenile Court

Sacramento Capitol

 

 

November ballot measure proposed by Governor Jerry Brown seeks to keep children in juvenile court.

 

 

 

In 2000, California voters approved Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, which significantly broadened the circumstances under which prosecutors could charge minors over the age of 14 in adult court.

 

Under Prop 21, prosecutors can file certain charges against a minor, such as first-degree murder or certain sexual offenses, directly in adult court.

 

Ironically, Prop 21 notes “a number of research studies indicate that juveniles who receive an adult court sanction tend to commit more crimes and return to prison more often than juveniles who are sent to juvenile facilities.”

 

A new bill on the November ballot seeks to reduce repeat offenses by diverting children back into the juvenile system.

 

The Public Safety and Rehabilitation Act of 2016 (“PSRA”), would require Judges, instead of prosecutors, to decide if a minor is tried as an adult.

 

The PSRA would also make the following changes to the California Constitution:

 

  • Non-violent offenders in state prison are eligible for parole consideration after serving the full term of the their primary offense.
  • Allow inmates to earn sentencing credits earned for good behavior, rehabilitation, or educational achievements.

Oxnard Police to Launch Body-worn Camera System

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Body-worn cameras will soon come to the Oxnard Police Department after the City Council unanimously approved a five-year contract Tuesday night.

The $375,608 agreement with TASER International Inc. will provide 50 cameras, unlimited storage of digital video files and other services.

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This comes almost 2 years after the Ventura County Sheriff started testing body cameras for their officers in Thousand Oaks and Ojai.