HAPPY NEW LAWS!

With the new year comes new laws. Many of them are a consequence of the state's budget problems.

Effective January 25, 2010, Senate Bill 18 of the third extraordinary session increases the dollar amounts which make it possible to charge many crimes as felonies. For example, felony theft from an elder (Pen. Code, sec. 368, subds. (d) & (e)) now requires the amount to be at least $950. Notably, the Legislature did not amend the $400 amount necessary for grand theft to be a wobbler. (Pen. Code sec. 487, subd. (a).) This is significant for two reasons. First, as a practical matter, prosecutors could charge grand theft instead of the more specific crime. Second, the punishment for many crimes depends on whether there is a grand theft or a petty theft. (See, e.g., Pen, Code, sec. 485 [theft of lost property].)

There is a question of whether defendants who committed their crimes before January 25, 2010 can benefit from the changes in the law. In People v. Nasalga (1996) 12 Cal.4th 784, the court held that increases in the amounts for a great taking enhancement applied to conviction not yet final when the amendment took effect.

The same bill also increased the amount of pre-sentence and post-sentence conduct credits some inmates can earn. Starting April 25, 2010, a low risk offender can be released from prison after serving about 40 percent of the sentence. He or she can be reduced sooner if placed in a conservation camp. (Pen. Code, secs. 2933.05, 2933.3.) Effective January 25, 2010, Penal Code section 4019 permits two days of conduct credit for every two days of actual days in jail. This provision does not apply if the defendant has a current or past conviction for a serious or violent felony, or if he or she must register as a sex offender. There is an argument the amendment applies to all defendants in jail on January 25, 2010 for all of the time they are in jail, regardless of when they were sentenced or when their convictions became final. (Cf. In re Kapperman (1974) 11 Cal.3d 542, 544-550.) The superior court has jurisdiction to correct presentence credit awards at any time, even if the case is on appeal. (People v. Little (1993) 19 Cal.App.4th 449, 452.)

Victories in the courts sometimes bring superseding legislation. In Verdin v. Superior Court (2008) 43 Cal.4th 1096, the court held that a criminal defendant could not be compelled by the prosecution to undergo a mental examination when a mental defense is presented. Amended Penal Code section 1054.3, subdivision (b) now provides statutory authorization for such an examination.

In Arias v. Superior Court (2008) 167 Cal.App.4th Supp. 1, the court held that a defendant can pull a time waiver without appearing in court by filing notice in court and serving the district attorney's office. Amended Penal Code section 1382 requires pulling any time waiver to occur in open court.

In People v. Sweig (2008) 167 Cal.App.4th 1145, the court determined there was no statutory authority for entering a residence to confiscate firearms possessed by one mentally ill and not permitted to possess them under Welfare and Institutions Code section 1802. New Penal Code section 1524, subdivision (a)(10) now authorizes the issuance of a warrant to do so. New subdivisions (a)(9) and (a)(11) permit warrants for confiscating firearms of those arrested for domestic violence or subject to a restraining order.

Some of the rules of court concerning juvenile appeals were renumbered. Rule 8.416 now permits fast track dependency appeals in non-termination cases if authorized by local rule. Rule 8.450 now permits the attorney to sign a notice of intent to file a dependency petition for extraordinary writ.

(January 15, 2010)


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