In the wake of massive public demonstrations against structural racism, police abuse and systemic injustice, California has enacted a slew of criminal justice reforms. Here the Los Angeles criminal defense lawyers of Chudnovsky Law explain all the new California criminal laws effective in 2021.
Governor Gavin Newsom signed a series of bills into law initiating criminal justice, juvenile justice and policing reforms in California. Legislators hope that these changes will shift the focus of the criminal justice system from punishment and systemic bias to rehabilitation, reducing recidivism, and equal treatment regardless of race or income.
Assembly Bill 3234 dramatically expands the opportunities for diversion in a wide variety of California misdemeanor cases. The bill allows most people to have their criminal cases completely dismissed and erased from their record after completing a court ordered diversion program. Upon completion, the underlying arrest will be deemed never to have occurred.
Under this new law, defendants are not required to plead guilty in advance. This can have a substantial effect on professional licensure and federal immigration issues. Charges dismissed before a guilty plea should have no effect on licensure, immigration proceedings, DACA recipients nor be counted as deportable offenses.
While trial courts will have discretion to offer misdemeanor diversion, there is no mechanism to legally force them to. It is critical that a defendant’s Long Beach criminal defense lawyer be skilled in presenting an effective petition to the court that makes a compelling argument for diversion. Effective Jan 1, 2021.
AB 1076 | “Clean Slate Act” automatic criminal record expungement
The Clean Slate Legislation Assembly Bill 1076 gives automatic record clearance for individuals arrested after January 1, 2021. The bill applies to Californians that are eligible to clear their criminal records under Penal Code 1203.4 as follows:
Committed a misdemeanor or felony that did not result in incarceration in state prison.
Fulfilled all terms of their probation.
Defendant was not convicted for any of the specified crimes that make someone ineligible to receive a California expungement.
AB 1076 requires California to automate the process of record clearance so that individuals and the courts do not have to incur the costs of petition based record clearance. The state estimates that each record clearance costs the system $3,757, while the automated system will only cost 4-cents per record. California is only the third state to offer clean slate relief, after Utah and Pennsylvania.
California Policy Lab found that “1 in 8 Californians with a criminal record are potentially eligible to have their full record cleared. Further, approximately 81% of persons with a criminal record are potentially eligible for relief of at least one arrest or conviction (approximately 1.8 million persons in the study cohort).”
These automatic record relief provisions apply to defendants arrested or convicted on or after January 1, 2021. Funding and implementing the changes are subject to appropriation in California’s Annual Budget. The automatic system is estimated to begin operating July 1, 2022, depending on when funding is finally appropriated.
Proposition 17 | Restores right to vote for people on parole after prison
Proposition 17 amends the Constitution of California to allow people on parole to vote. It also allows parolees to run for office if they are registered to vote and have not been convicted of bribery or perjury. The change is estimated to restore voting rights to approximately 50,000 people in California who are on parole after completing their prison sentence.
AB 1196 | Banning chokeholds by law enforcement
Assembly Bill 1196 requires California law enforcement agencies to amend their use of force policies to prohibit using carotid restraints or choke holds. The bill defines the terms as follows:
“Carotid restraint” means a vascular neck restraint or any similar restraint, hold, or other defensive tactic in which pressure is applied to the sides of a person’s neck that involves a substantial risk of restricting blood flow and may render the person unconscious in order to subdue or control the person.
“Choke hold” means any defensive tactic or force option in which direct pressure is applied to a person’s trachea or windpipe.
“Law enforcement agency” means any agency, department, or other entity of the state or any political subdivision thereof, that employs any peace officer described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code.
Now a majority of the nation’s largest police departments have banned or strengthened restrictions on the use of these types of neck restraints since the death of George Floyd. The changes have come as policing agencies are working to reassure stressed communities that they are listening.
According to Governor Newsom, “AB 2542 is a countermeasure to address a widely condemned 1987 legal precedent established by the U.S. Supreme Court in the case of McCleskey v. Kemp. The McCleskey decision has the functional effect of requiring that criminal defendants prove intentional discrimination when challenging racial bias in their legal process. This is a high standard and is almost impossible to meet without direct proof that the racially discriminatory behavior was conscious, deliberate and targeted.”
AB 2542 is a far reaching Act that makes it possible for someone charged with or convicted of a crime to challenge the conviction or their sentence by showing discrimination played a role in their case in one of the following ways:
A lawyer, law enforcement officer, juror, expert witness or judge exhibited racial bias towards the defendant during the case.
Racially discriminating language was used at trial towards the defendant.
Statistical evidence demonstrates that persons of a particular race are charged or convicted or certain crimes or charge enhancement.
Statistical evidence showing that persons of a particular race are subject to longer or more severe sentences.
The Sentencing Project reported in 2016 that African American men were incarcerated in California state prisons at more than 8.8 times the rate of white men. That is one of the highest racial disparities in the nation. Effective January 1, 2021.
AB 1185 | Establish Sheriff oversight board and inspector general
Assembly Bill 1185 authorizes each California county to create a sheriff oversight board and office of the inspector general. The new law is designed to increase Sheriff accountability and transparency by assisting county boards of supervisors in exercising oversight over their Sheriff agencies.
AB 1185 empowers the inspector general and the chair of the oversight board to issue subpoenas and subpoena duces tecum to compel Sheriff personnel to appear, testify, and provide documents or other evidence needed regarding oversight within their jurisdiction. Effective January 1, 2021.
AB 1775 | Making false 911 calls based on discrimination a hate crime
Assembly Bill 1775 makes it a hate crime to make a false 911 call based on a person’s ethnic background, gender, religion or sexual orientation. The bill imposes a misdemeanor hate crime sentence of up to one year in jail and a fine not less than $500 nor more than $2,000. AB 1775 also allows the victim to file a lawsuit against the person that made the false 911 call.
AB 1775 passed with widespread support after many media reports of false 911 calls sparked nationwide attention. Cell phone videos have allowed widespread sharing of harassing 911 calls. False 911 calls were often made against Black and Latino individuals for engaging in everyday activities such as birdwatching, barbecuing, dancing in the street, drawing chalk artwork on their own property, and even a harassing an 8-year-old girl selling water. Effective January 1, 2021.
SB 132 | Transgender Respect, Agency, and Dignity Act
Senate Bill 132 requires the California Department of Corrections and Rehabilitation (CDCR) to ask inmates to specify their gender identity and whether the individual identifies as transgender, nonbinary, or intersex. Inmates must then be housed in a correctional facility designated for men or women based on the individual’s preference.
The Transgender Respect, Agency and Dignity Act is intended to enhance protections for LGBTQ people, who are especially vulnerable in prisons. A study by the University of California, Irvine found that transgender inmates in male prisons are 13.4 times more likely to be the victim of sexual assault than other inmates.
Most states house inmates according to their birth gender, regardless how they identify as an adult. California is now joining Connecticut, New York City, Massachusetts and Rhode Island in housing inmates based on inmate-defined gender identity. Effective January 1, 2021.
SB 384 | Sex offender tiering
Senate Bill 384 changes California’s lifetime-based sex offender registration system to a tier-based system on January 1, 2021. SB 384 establishes three tiers of registration for adult sex offenders, based on specified criteria, for periods of 10 years, 20 years, and life. Juvenile offenders will be required to register as a sex offender for either five or 10 years.
Starting July 1, 2021, registrants who meet certain requirements can petition the court, in their county of residence, for termination of their requirement to register as a sex offender in California.
The three tiers increase according to severity of the conviction as follows:
Tier 1: The least severe offenses such as misdemeanor sexual battery and other misdemeanor charges can petition to be removed from the registry after 10 years.
Tier 2: Middle tier convictions such as lewd acts with a minor or rape by deception can petition to be removed from the registry after 20 years.
Tier 3: The most severe convictions resulting from crimes such as rape or human trafficking will remain subject to the lifetime registration requirement. This tier is unchanged by SB 384.
Removal from the sex offender registration system is not automatic. Once an offender is eligible due to their tier, they must file a petition with their court. The state will have 60 days to review the request. If the petitioner has complied with all their sex offender registration requirements and not been convicted of another crime, the court can grant termination of the status as a sex offender.
This long overdue change should allow the large number of low tier offenders to reclaim their lives. California estimates that as many as 90% of those currently required to register for life under 290 pc can be removed from the registry.
AB 1950 | Probation term reform
Assembly Bill 1950 caps the probation term for both misdemeanor and felony convictions effective January 1, 2021. Under AB 1950, misdemeanor offense probation will be capped at 1 year unless the statute states otherwise. Felony offense probation will be capped at 2 years, subject to some exceptions.
AB 1950 does not decrease the probation period for the following offenses:
Financial crimes where the offenses involves more than $25,000 (487(b)(3) pc, 503 pc, and 532a pc).
Any felony or misdemeanor offense “that includes specific probation lengths within its provisions.”
AB 2512 | Ban death penalty for persons with intellectual disability
Assembly Bill 2512 modernizes the California death penalty intellectual disability statute so that anyone that meets the clinical standard definition of “intellectual disability” cannot be sentenced to death in California. AB 2512 eliminates the age of onset threshold requiring that intellectual disability be present before the age of eighteen in order to determined legally.
AB 2512 also prohibits “the results of a test measuring intellectual functioning to be changed or adjusted based on race, ethnicity, national origin, or socioeconomic status.” This change prevents prosecutors from making race-based arguments to inflate IQ scores to prevent findings of intellectual disability.
AB 1869 | Repeal administrative fees in criminal justice system
Assembly Bill 1869 repeals the authority of California counties to charge criminal defendants for 23 of the most burdensome fees for legal representation, probation, and incarceration imposed in criminal justice cases, effective July 1, 2021.
Repealed fees include: processing arrests and citations, administering probation and mandatory supervision, continuous electronic monitoring programs, administering home detention programs, work furlough programs, and work release programs. AB 1869 also repeals the authority of the court to order the defendant to pay the costs of the public defender.
SB 823 | Juvenile justice realignment
Senate Bill 823 sets into motion phasing out the California State Division of Juvenile Justice (DJJ) youth incarceration and replacing it with a new county-based system named the Office of Youth and Community Restoration (OYCR), beginning July 1, 2021.
OYCR will be located within the California Health and Human Services (HHS) agency without the former adult correctional constraints. The goal is to provide more health focused and youth development approaches closer to their home communities and families when youth justice intervention is needed.
The closure of DJJ is expected to have the greatest impact on youths of color. The Center on Juvenile Criminal Justice has reported that “Black and Latino youth are 31 times and 5 times more likely to be committed to DJJ than their white peers, respectively.”
AB 901 | Shifting problem juveniles in school from courts to community programs
Assembly Bill 901 will end the practice of referring children and teens who are having problems at school into probation programs. Instead they will be treated more humanely in community-based resources.
Habitually truant, insubordinate, or disorderly pupils will no longer be brought to the attention of the juvenile court and the pupil’s probation or parole officer. Courts may no longer require the delivery of a pupil who is insubordinate or disorderly to school daily. Except for underage minors who are on probation, the probation department will not be allowed to create mandatory probation conditions for juveniles.
Juvenile court will no longer have authority to adjudge a minor to be a ward of the court on the basis that the minor habitually refuses to obey the reasonable and proper orders or directions of school authorities. Instead, peace officers will be required to refer minors to a community-based resource, the probation department, a health agency, a local educational agency, or other governmental entities that may provide services.
Prosecutors and probation officers are now required to cooperate in determining whether another public agency, a community-based organization, the probation department, or the district attorney is best able to operate any specified truancy mediation programs.
Probation officers will be required to refer youths to services provided by a community-based resource, the probation department, a health agency, a local educational agency, or other governmental entities that may provide services.
AB 2425 | Confidentiality of youth police records
Assembly Bill 2425 ensures the confidentiality of the police records of juveniles who are diverted from the juvenile justice system when they come into contact with law enforcement or at the referral of a probation department. AB 2425 also ensures that those who do not fall within the jurisdiction of the juvenile court are protected from the negative consequences of a criminal record. This bill requires diversion program providers maintain the confidentiality of juvenile records.
About Chudnovsky Law
Chudnovsky Law is a preeminent California criminal defense and professional license defense law firm with offices in Los Angeles, Long Beach, Santa Monica and Newport beach. The firm’s three senior attorneys, Tsion Chudnovsky, Robert K. Weinberg and Suzanne Crouts include former prosecutors with a combined 65+ years experience practicing criminal law. Chudnovsky Law has been recognized as Top 100 Trial Lawyers by The National Trial Lawyers.
“Tsion is a wonderful, warm hearted attorney. My felony case took over a year to resolve during covid…She got me a second chance and kept me from going to prison! Not only that, she has made me feel better about myself and focused on making my life what I want it to be. Thank you for everything Tsion!”