NEW CRIMINAL LAWS 2016 HIGHLIGHTS
The California legislature has enacted several new criminal laws, some of which are defense oriented and will make a positive difference in society. Below is a short list of some of the most important new criminal laws taking effect in 2016.
AB 730: Transport means Transport for Sale for Virtually all Drugs
The days of draconian drug war sentences seems to be ending. In 2013, the law was changed to declare transportation of drugs for personal use listed in Health and Safety Code section 11379 and 11352, such as heroin, cocaine and methamphetamine was a misdemeanor, punishable only as a simple possession. Prior to 2013, transportation of most drugs, even if there was no intent to sell, was punishable the same way as if the Defendant possessed and/ or transported the drugs for sale purposes. These transportation charges were straight felonies and could result in significant prison time for offenders.
However, the 2013 law which made transportation a felony only if the drugs were transported for sale, was not made applicable to several other sections in the code. This resulted in the transportation for personal use of certain drugs, mainly phencyclidine (PCP ), marijuana, and mushrooms , remaining as straight felonies. The new law, AB730, which takes effect in 2016, now applies to virtually all drugs. AB730 has inserted the phrase: “Transport” means “transports for sale,” for the sections that the 2013 left out.
Criminal Diversion: Penal Code 1203.43 and PC 1000: Deferred Entry Of Judgment (DEJ) and Dismissal of Criminal Charges
Deferred Entry of Judgment (PC 1000): Withdrawal of Plea under PC 1203.43
AB 1352 adds section 1203.43 to the Penal Code. Penal Code section 1000, which addresses DEJ (Diversion) was made effective in 1997. That law says any person who pleads guilty to a crime and successfully completes diversion will have their case dismissed and will suffer no adverse consequences. The problem has been that immigrants who got their cases dismissed after successfully completing diversion, oftentimes, suffered VERY serious adverse consequences, because the federal government considers a plea to be an admission of guilt and this has the same effect that a conviction would have. Some immigrants would become deportable and unable to renew their legal status. AB 1352 attempts to remedy this unfairness. Under this new law, a person who has completed diversion and gotten their case dismissed, can now file a petition to withdraw the plea entirely and have the case re-dissmissed.
For those who enter into diversion now, after you successfully complete diversion and your case is dismissed, you must still file a petition under 1203.43 to obtain the full benefit, because PC 1000 was not changed. In other words, one would need to request the plea be withdrawn and the case dismissed (again!) in order to obtain the full benefit of PC 1203.43. It remains to be seen how the Federal Government will view a case that was dismissed (twice) under this new law.
California Penal Code section 1203.43 states the following:
(a)(1) The Legislature finds … that the statement in Section 1000.4, that “successful completion of a deferred entry of judgment program shall not, without the defendant's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate” constitutes misinformation about the actual consequences … in the case of some …, including all noncitizen[s] …, because the disposition … may cause adverse consequences, including … immigration consequences.
(2)Accordingly, the Legislature finds … that based on this misinformation and the potential harm, the defendant's prior plea is invalid.
(b)[So], in any case [of DEJ] on or after January 1, 1997, [where the defendant] has performed satisfactorily … and for whom the criminal… charges were dismissed pursuant to Section 1000.3, the court shall, upon request …, permit the defendant to withdraw the plea of guilty or nolo contendere and enter a plea of not guilty, and the court shall dismiss the complaint or information …. “ (Emphasis added.)
If you have any question about new 2016 laws that may affect the criminally accused or your case, call attorney Ann Gottesman for a free consultation.