Training Webinar and Cheat Sheet on S.B. 775; End-of-Year Legislative Roundup Webinar; Additional New Laws: Summaries and Initial Analyses

October 14, 2021

With the close of the 2021 legislative session, the governor has signed several important bills that could benefit our clients. Read on for more information regarding two training opportunities, a hot-of-the presses SB 775 Cheat Sheet, and summaries of additional new laws.

Training Webinar and Cheat Sheet – S.B. 775: Expanded Opportunities To Challenge Murder, Attempted Murder, and Manslaughter Convictions Under SB 1437 and Pen. Code, § 1170.95 – November 3, 2021, 12 to 1:30 p.m. 

Senate Bill 775, which takes effect on January 1, 2022, adopts several major revisions urged by the defense community, to both the substantive scope of S.B. 1437 and procedures under Pen. Code, § 1170.95. We have a cheat sheet on SB 775 available now and registration is open for an SB 775 training to be held November 3. 

Cheat Sheet

For a detailed take on this new law, see the S.B. 775 Preliminary Cheat Sheet from FDAP Assistant Director J. Bradley O’Connell. This is a password-protected document.

Training Opportunity 

Please join First District Appellate Project and Office of the State Public Defender on Wednesday, November 3 from 12:00 to 1:30 p.m. for a jointly sponsored webinar on S.B. 775. The new law, which takes effect on January 1, 2022, adopts several major revisions, urged by the defense community, to both the substantive scope of S.B. 1437 and procedures under Pen. Code § 1170.95.  This short webinar will provide an overview of the new legislation’s principal provisions, including: (1) its inclusion of voluntary manslaughter and attempted murder in § 1170.95; (2) its clarification of the reasonable doubt burden of proof and evidentiary rules for § 1170.95 hearings; and (3) its provision allowing defendants whose cases are not yet final to raise challenges, based on S.B. 1437, on direct appeal. The program will offer preliminary ideas on strategies for appellate defense counsel, including seeking expedited remands.  The panelists will also discuss the potential implications of the legislation’s provision of a direct appeal remedy for non-final cases.

Panelists for this presentation will be Rebecca Jones (panel attorney; counsel on People v. Duke, S265309), A.J. Kutchins (OSPD Director of Non-capital Litigation), J. Bradley O’Connell (FDAP Assistant Director). This webinar is approved for 1.5 hours of MCLE credit, including appellate and criminal specialization. 

Note: registration is not open to attorneys affiliated with prosecutorial agencies.

Register here.

End-of-Year Legislative Round Up Webinar: November 9, 2021, 12 to 1 p.m.

In addition to SB 775, there was no shortage of criminal and juvenile justice bills this past legislative session (see summaries below), and a number of new laws relevant to our practice will be taking effect at the start of next year. Join FDAP Staff Attorneys Nat Miller and Deborah Rodriguez on November 9, 2021 from 12:00 to 1:00 p.m. for an end-of-year legislative roundup webinar providing an overview of these new laws and their likely impact on our practice.

The webinar is approved for 1.0 hour of MCLE credit. 

Register here.

Additional New Laws: Summaries and Initial Analyses

The 2021 legislative session has come to a close, and we have several new laws on the books in addition to SB 775. Save the date for FDAP’s End-of-Legislative-Year Roundup webinar on November 9, 2021, 12 to 1 p.m. (Registration details above, and on the Upcoming Events page on our website.) In the meantime, below are brief summaries of some of the more significant new laws, including those noted in our panel alert last week. A more comprehensive list of relevant new legislation is available on the Pending Issues & Legislation page on FDAP’s website.

Assembly Bill 124 – Criminal procedure; Assembly Bill 1540 – Criminal procedure: resentencing; Senate Bill 567 – Criminal procedure: sentencing: Effective January 1, 2022, these three bills amend Penal Code section 1170 to overhaul the determinate sentencing framework and to strengthen the recall and resentencing mechanism currently set out in section 1170(d).

S.B. 567 amends section 1170, subdivision (b) to provide that a trial court may impose a term exceeding the middle term only where aggravating circumstances justifying imposition of the upper term have been either stipulated to by the defendant or proven beyond a reasonable doubt at trial. The amended version of section 1170, subdivision (b) requires that trial on the aggravating circumstances be bifurcated upon request by the defendant.

A.B. 124 further amends section 1170(b) to provide that, unless the trial court finds that aggravating circumstances make imposition of the lower term “contrary to the interests of justice,” the court must impose the lower term if any of the following was a “contributing factor” in the commission of the offense: (1) the defendant “has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence”; (2) the defendant was under 26 years old at the time of the offense; or (3) the defendant “was a victim of intimate partner violence or human trafficking” at or before the time of the offense.

A.B. 1540 moves the recall and resentencing mechanism currently set out in section 1170 to a new statute, section 1170.03, which provides that where an authorized party (e.g., the Secretary of CDCR or the district attorney) recommends resentencing, the trial court must notify the defendant, appoint counsel, and hold a hearing at which there is “a presumption favoring recall and resentencing, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety.” Section 1170.03 authorizes a court conducting a resentencing not only to reduce the defendant’s sentence, but also to “vacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, . . . with the concurrence of both the defendant and the district attorney.” Section 1107.03 further provides that where a trial court resentences a defendant, the court must “apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.”

FDAP is analyzing the text of the bills to assess whether they should be found retroactive to non-final cases under In re Estrada (1965) 63 Cal.2d 740.

Assembly Bill 124 – Criminal procedure: In addition to the changes to Penal Code section 1170 described above, A.B. 124 expands the affirmative defense of coercion for victims of human trafficking and also extends the defense to victims of sexual violence and intimate partner violence. The bill also requires prosecutors to consider during plea negotiations whether any of the following was a “contributing factor” in the commission of the offense and thus weighs in favor of a mitigated sentence: (1) the defendant “has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence”; (2) the defendant was under 26 years old at the time of the offense; or (3) the defendant “was a victim of intimate partner violence or human trafficking” at or before the time of the offense.

FDAP is analyzing the text of these portions of A.B. 124 to assess whether they should be found retroactive to non-final cases under Estrada.

Assembly Bill 177 – Public safety: Effective January 1, 2022, eliminates 17 administrative fees related to criminal charges or convictions and renders unenforceable and uncollectible any unpaid debt associated with those fees. The bill applies to final and nonfinal cases and closely tracks the language of A.B. 1869, which eliminated 23 administrative fees as of July 1, 2021. Please see FDAP’s analysis of the fees eliminated by A.B. 177.

Assembly Bill 333 – Participation in a criminal street gang: enhanced sentence: Effective January 1, 2022, removes looting, vandalism, and identity theft from the crimes that define a pattern of criminal gang activity. A.B. 333 also prohibits the use of the charged offense to prove the pattern of criminal gang activity and changes the definition of “criminal street gang” to require proof that members of the gang collectively engage in a pattern of criminal gang activity. The bill requires bifurcation, upon request of defendant, of a substantive gang offense pursuant to Penal Code section 186.22, subd. (a) and any charges with gang enhancements (sections 186.22(b) or (d)) from other non-gang related counts.

A.B. 333 does not contain a savings clause. FDAP is analyzing the text of the bill to assess whether it should be found retroactive to non-final cases under Estrada.

Assembly Bill 518 – Criminal law: violations punishable in multiple ways: Effective January 1, 2022, amends Penal Code section 654 to give the trial court discretion to sentence a defendant to any of the offenses subject to the statute, instead of just the offense carrying the longest possible term of incarceration. According to the author, the bill is designed to “restore judicial discretion and return the sentencing decision to the trier of fact. Mandating the harshest sentence in every case robs the judiciary of an important decision which it is in the best position to make — the court has heard and considered the facts and circumstances of the case and should have discretion to formulate an appropriate sentence.”

Based on an initial analysis, the bill is likely to be found retroactive to non-final cases under Estrada.

Assembly Bill 624 – Juveniles: transfer to court of criminal jurisdiction: appeals: Effective January 1, 2022, requires that an order transferring a minor from the juvenile court to a court of criminal jurisdiction be subject to immediate appellate review if a notice of appeal is filed within 30 days of the order transferring the minor.

Note: A training is planned for juvenile transfer appeals in early January 2022. FDAP will send out more details as the date gets closer.

Assembly Bill 788 – Juveniles: reunification: Effective January 1, 2022, clarifies that under Welfare and Institutions Code section 361.5, subd. (b)(13), “resisted” means that the parent or guardian refused to participate meaningfully in a prior court-ordered treatment program and does not include passive resistance, as described in In re B.E. (2020) 46 Cal.App.5th 932.

Senate Bill 73 – Probation eligibility: crimes relating to controlled substances: Effective January 1, 2022, significantly expands a trial court’s discretion to grant probation in a range of felony drug cases. Existing law prohibits trial courts from granting probation to defendants convicted of specified drug offenses (Pen. Code, § 1203.07), or to defendants convicted of specified drug offenses who have certain prior drug convictions (Health & Saf. Code, § 11370). Existing law also restricts trial courts from granting probation to defendants convicted of specified drug offenses except in “unusual case[s] where the interests of justice would best be served.” (Pen. Code, § 1203.073.)

S.B. 73 either amends or repeals these statutes so that a trial court’s discretion to grant probation is restricted in this context only where the defendant was convicted of a drug offense involving a minor (i.e., Health & Saf. Code, §§ 11353, 11361, 11380), in which case the court may grant probation only “in an unusual case where the interests of justice would best be served.”

Based on an initial analysis, the bill is likely to be found retroactive to non-final cases under Estrada.

Senate Bill 81 – Sentencing: dismissal of enhancements: Effective January 1, 2022, amends Penal Code section 1385 to add subdivision (c), which requires the court, in exercising its discretion with regard to any type of enhancement (including conduct enhancements), to consider and “afford great weight” to evidence offered by the defendant establishing the presence of mitigating circumstances. A finding as to any of the following circumstances “weighs greatly in favor” of dismissing the enhancement, unless the court finds that dismissal of the enhancement would create a likelihood that the defendant would cause physical injury or serious danger to others:

“(A) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745.
(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.
(D) The current offense is connected to mental illness.
(E) The current offense is connected to prior victimization or childhood trauma.
(F) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5.
(G) The defendant was a juvenile when they committed the current offense or any prior juvenile adjudication that triggers the enhancement or enhancements applied in this case.
(H) The enhancement is based on a prior conviction that is over five years old.
(I) Though a firearm was used in the current offense, it was inoperable or unloaded.”

Note: S.B. 81 is expressly prospective-only. Section (c)(7) provides: “This subdivision shall apply to sentencings occurring after the effective date of the act that added this subdivision.”

Senate Bill 317 – Competence to stand trial: Effective January 1, 2022, allows defendants to earn conduct credits under Penal Code section 4019 for time spent committed to a state hospital as incompetent to stand trial. Based on an initial analysis, the bill is likely to be found retroactive to non-final cases under Estrada.

Senate Bill 483 – Sentencing: resentencing to remove sentencing enhancements: Effective January 1, 2022, S.B. 483 essentially makes 2017’s S.B. 180 and 2019’s S.B. 136 applicable to all incarcerated persons, even those whose cases are final. The bill requires the CDCR and county correctional administrators to identify any person in their custody serving a sentence based on an enhancement repealed by S.B. 180 or S.B. 136 and to notify the sentencing court, which must then resentence the person accordingly.

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