THREE YEAR DRUG SENTENCING ENHANCEMENT UNDER HEALTH & SAFETY CODE SECTION 11370.2 WILL NO LONGER BE IMPOSED IN MOST CRIMINAL DRUG CASES
Prior to this much needed change in the drug laws, under Health and Safety Code section 11370.2, if you were convicted of violating certain controlled substances crimes, such as possession for sale, purchase for sale or transport for sale of opiates, heroin, cocaine base, and hallucinogenic substances, and you had a prior conviction for a similar drug offense, you would be looking at a mandatory 3 year separate, consecutive term of imprisonment (a sentencing enhancement) for each prior conviction. So, for example, if you were convicted of possessing for sale heroin, and you had a prior conviction of a similar felony drug crime, you would be looking at a sentence of up to 8 years in prison (5 years maximum for the new crime and an additional, consecutive 3 years for your prior conviction.) This can stack up pretty horrifically if the accused suffered several prior drug convictions that count as a “prior” under Health and Safety Code section 11370.2.
This draconian and terribly harsh law was FINALLY changed with the passing of Senate Bill 180. Now, this three-year consecutive enhancement will only apply to those prior convictions that involved using a minor in the commission of specified drug offenses pursuant to HS section 11380.
Under SB 180, Health and Safety Code section 11370.2 is amended to read, in pertinent part:
“California H&S Code §11370.2.
(a) Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11380, whether or not the prior conviction resulted in a term of imprisonment.
(b) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378.5, 11379.5, 11379.6, or 11383 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11380, whether or not the prior conviction resulted in a term of imprisonment.
(c) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11380, whether or not the prior conviction resulted in a term of imprisonment.”
This change in the law means that a vast majority of those charged with non-violent felony drug crimes who have suffered prior convictions for similar offenses will no longer be subject to the harsh mandatory minimum enhancements that have plagued the California criminal justice system for so many years.
CERTAIN PRIOR PRISON SENTENCE CONVICTIONS CAN NOW BE DISMISSED UNDER CALIFORNIA’S “EXPUNGEMENT” LAW: PC 1203.42
Before the 2018 criminal law changes, anyone who was convicted of a felony and sentenced to state prison was not eligible to seek relief under Penal Code section 1203.4. Penal Code section 1203.4 allows those convicted of misdemeanors and most felonies, who have not been sentenced to prison, and who finished their probation and are not currently on probation or charged with a new offense, to petition the Court to withdraw their guilty or no contest plea, enter a plea of not guilty and dismiss the conviction. (Similarly, for those convicted by a jury or judge, the law allows the court to set aside the verdict of guilty and dismiss the conviction.)
Assembly Bill 1115 changed the law regarding petitions to dismiss under Penal Code section 1203.4 to allow dismissals for those sentenced to state prison for a felony, that if committed after the 2011 Realignment Legislation would have been eligible for sentencing to a county jail. The defendant must wait two years after the completion of the sentence before he or she can apply for the relief.
The passing of SB 1115 lead to the addition of Penal Code section 1203.42. Penal code 1203.42 states in pertinent part:
California PC section 1203.42.
“(a) If a defendant was sentenced prior to the implementation of the 2011 Realignment Legislation for a crime for which he or she would otherwise have been eligible for sentencing pursuant to subdivision (h) of Section 1170, the court, in its discretion and in the interests of justice, may order the following relief, subject to the conditions of subdivision (b):
(1) The court may permit the defendant to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty, or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty, and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.
(2) The relief available under this section may be granted only after the lapse of two years following the defendant’s completion of the sentence.
(3) The relief available under this section may be granted only if the defendant is not under supervised release, and is not serving a sentence for, on probation for, or charged with the commission of any offense.
(4) The defendant may make the application and change of plea in person or by attorney, or by a probation officer authorized in writing.
(b) Relief granted pursuant to subdivision (a) is subject to the following conditions:
(1) In any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if the accusation or information had not been dismissed.
(2) The order shall state, and the defendant shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.
(3) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6….”
ASSEMBLY BILL 1008: Added Section 12952 to the California Government Code:
This bill, which was passed and became effective in 2018, helps previously incarcerated people and those with criminal conviction records to apply for a job without having to disclose their criminal record on a job application. The new law bans employers from including a box on a job application that asks the applicant to check if previously convicted of a crime. It’s referred to as the “ban the box” bill. Employers can still run a criminal background check on the applicant, but only after a conditional offer of employment has been made. The idea is that once an employer makes an offer it is more likely that the employer will think twice about rescinding the job offer just because the job seeker has a criminal record. How much this will help job seekers with convictions on their record is not yet known, but it is presumed that it will help because employers won’t be able to initially weed out those applications that have the criminal history box checked.
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.