News from the Director

FDAP Panel Alert 2018-13

Sept. 30, 2018

Legislative Update

Today, Governor Brown signed four bills of particular relevance to criminal and juvenile cases:
  • SB 1437 eliminates first degree felony murder liability for certain accomplices and also eliminates second degree imputed-malice felony murder. The bill adds section 1170.95 to the Penal Code, creating a superior court petition process for requesting that a murder conviction be vacated under the new law. We will soon address how SB 1437's changes impact pending appeals. In some cases, such as where the appellate issues challenge the murder conviction, it may make sense to seek a stay of appellate proceedings while a section 1170.95 petition is resolved.
  • SB 1393 deletes the restriction in PC section 1385(b) prohibiting a judge from striking a prior serious felony conviction supporting a 5-year enhancement under section 667(a). This bill is similar to SB 620, last year's bill which added discretion to strike certain firearm enhancements under sections 12022.5 and 12022.53. Accordingly, the same approach will likely apply and counsel with cases with section 667(a) enhancements should be adding arguments that the case should be remanded for an exercise of discretion. 
  • SB 439 modifies the ages for juvenile court delinquency jurisdiction to between 12 and 17 years of age, except where the minor is alleged to have committed murder and several specified sex offenses. 
  • SB 1391 forbids transfer of 14- and 15-year-old minors to adult court.
Most of the provisions of the new laws will be effective January 1, 2019. But raising issues under these new laws do not have to wait. In a similar situation last year, the Court of Appeal (in unpublished decisions) found the issues not just sufficiently ripe to brief prior to January 1, but sufficiently ripe to be reached in opinions issued prior to January 1. A more detailed FDAP alert on how these new laws might be applied to pending appeals will be forthcoming. In the mean time, please reach out to your FDAP consulting attorney if you have any immediate questions.

Will your case become "final" soon?

Be sure to discuss your case with FDAP if you have a case affected by these bills but which is in danger of becoming final before January 1, 2019. A judgment is final for purposes of retroactivity analysis when all direct appeals have been exhausted and a petition for writ of certiorari in the United States Supreme Court has been denied or the time for filing such a petition has expired. The legislation should apply to any case in which the direct appeal was still pending in the Court of Appeal or California Supreme Court as of January 1, 2019, and any case in which a certiorari petition was pending or the certiorari deadline had not yet expired as of that date.

If you have a case affected by the new laws and the case has a recent opinion or you expect an opinion soon, but you are not contemplating filing a petition for review, please contact your consulting FDAP attorney.  The appropriate mechanism to seek relief will depend on the posture of the case.


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