Vol.27  No. 1

Robert C. Phillips 
Deputy District Attorney (retired)                                                 

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THIS EDITION’S WORDS OF WISDOM: 

“The Constitution is not a document for the Government to restrain the people; it is an instrument for the People to restrain the Government.”  (Patrick Henry)

 

IN THIS ISSUE:                                                                                         

            Administrative Notes:                                                                                                  pg:

                        New and Amended Statutes; Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

            New and Amended Statutes:

 

Abortion Clinics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .  3

Arrest Warrants  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

Cannabis (Marijuana) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

Child Abuse  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Contempt of Court  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Courtrooms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9

Courtroom Trial Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9

Domestic Violence and Gun Violence Restraining and Protective Orders  . . . 17

Elder and Dependent Adult Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Emotional Support Animals . . . . . . . . . . . . . . . . . . . . . . . . ..... . . .  . . . . . . . . . 29

Environmental Law  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . >. . . . . .  . . . . . . . . . 31

False Police Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . . 34

Firearms  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . . 34

Gang Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Hate Crimes  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 46

Human Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... . . . . . . . 47

Law Enforcement’s Closure of Listed Areas . . . . . . . . . . . . . . . . . . .. . . . . . . . 54

Law Enforcement & Military Equipment  . . . . . . . . . . . . . . . . . . . . . . .... . . . . . 55

Law Enforcement Policies and Procedures . . . . . . . . . . . . . . . . . . . . .  . . . . .  56

Law Enforcement Use of Force  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 58

Nunchakus  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Peace Officer Civil Liability  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . 62

Peace Officer Qualifications and Disqualifiers  . . . . . . . . . . . . . . . . . . . . . . . . 65

Peace Officer Personnel Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Plea Bargaining  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

Sex Offenses  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Theft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Vaccination Sites  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Vehicle Code  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Victims and Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

 

ADMINISTRATIVE NOTES:

New and Amended Statutes; Disclaimer:  The statutes listed here are not intended to cover the entire body of the Legislature’s work for 2021, nor the multiple Initiatives approved at the voters’ booth.  Only those statutes believed to be of interest to most law enforcement officers, with the concerns of prosecutors in mind, are included.  Sentencing rules, typically covered better in other publications, and other technical, non-substantive changes, have been avoided except when important to the substance of a new or amended offense.  Statutes that affect post-conviction (i.e., appellate) proceedings are also not included.  Many of the statutes that are included have been severely paraphrased, the degree of detail being dependent upon the newness, importance, and/or complexity of the statute.  Other statutes, due to their importance, novelty, and/or complexity, have been included, word-for-word, in their entirety.  Although I have made a sincere effort to avoid taking any part of a statute out of context, it is strongly recommended that the unedited statute be consulted before attempting to use it either in the field or the courtroom.  The effective date of each new or amended statute is January 1, 2022, unless otherwise indicated.  Bolding and italics have been added for emphasis.

 

NEW AND AMENDED STATUTES:

Abortion Clinics:

Pen. Code §§ 423.1, 423.2, & 423.3 (Amended; AB 1356): The California Freedom of Access to Clinic and Church Entrances Act (FACE):

Pen. Code § 423.2:  Three new subdivisions were added as follows:  “Every person who, except a parent or guardian acting towards their minor child or ward, commits any of the following acts . . . :

(g) Within 100 feet of the entrance to, or within, a reproductive health services facility, intentionally videotapes, films, photographs, or records by electronic means, a reproductive health services patient, provider, or assistant without that person’s consent with specific intent to intimidate the person from becoming or remaining a reproductive health services patient, provider, or assistant, and thereby causes the person to be intimidated.

(h) In any manner or forum, including, but not limited to, internet websites and social media, intentionally discloses or distributes a videotape, film, photograph, or recording knowing it was obtained in violation of subdivision (g) with the specific intent to intimidate the person from becoming or remaining a reproductive health services patient, provider, or assistant, and thereby causes the person to be intimidated. For purposes of this subdivision, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or internet website profiles or locations.

(i) Subdivisions (g) and (h) do not apply to a person described in subdivision (b) of Section 2 of Article I of the California Constitution.”

Notes: 

Subd. (i), referencing free speech and freedom of the press, refers a publisher, editor, or news reporter connected with or employed by a newspaper, magazine, radio station, or television station.

Subds. (a) through (f) continue to describe the misdemeanor crimes of  injuring, intimidating, or interfering with a person or entity because the person or entity is a reproductive health services patient, provider, or assistant; injuring, intimidating, or interfering with a person lawfully exercising the First Amendment right of religious freedom at a place of worship; damaging or destroying the property of a person or entity because the person or entity is a reproductive health services patient, provider, assistant, or facility; and damaging or destroying the property of a place of religious worship.

Pen. Code § 423.1 provides some relevant definitions to which some minor, technical changes were made.

Pen. Code § 423.3 describes the misdemeanor punishments for each, increasing the severity of each to:

(a) A first violation of subdivision (c), (d), (g), or (h) of Section 423.2 is a misdemeanor, punishable by imprisonment in a county jail for a period of not more than one year, or a fine not to exceed ten thousand dollars ($10,000), or both that fine and imprisonment.

(b) A second or subsequent violation of subdivision (c), (d), (g), or (h) of Section 423.2 is a misdemeanor, punishable by imprisonment in a county jail for a period of not more than one year, or a fine not to exceed twenty-five thousand dollars ($25,000), or by both that fine and imprisonment.

(c) A first violation of subdivision (e) or (f) of Section 423.2 is a misdemeanor, punishable by imprisonment in a county jail for a period of not more than one year, or a fine not to exceed twenty-five thousand dollars ($25,000), or by both that fine and imprisonment.

(d) A first violation of subdivision (a) or (b) of Section 423.2 is a misdemeanor, punishable by imprisonment in a county jail for a period of not more than one year, or a fine not to exceed twenty-five thousand dollars ($25,000), or by both that fine and imprisonment.

(e) A second or subsequent violation of subdivision (a), (b), (e), or (f) of Section 423.2 is a misdemeanor, punishable by imprisonment in a county jail for a period of not more than one year, or a fine not to exceed fifty thousand dollars ($50,000), or by both that fine and imprisonment.

See also Pen. Code §§ 13776, 13777, 13777.2, 13778 (Amended) & 13778.1 (New; AB 1356), for reporting requirements relevant to the above violations, The Commission on Peace Officer Standards and Training (POST) training requirements, and law enforcement’s policy establishment requirements.  

Arrest Warrants:

Pen. Code § 817 (Amended; AB 127):  Arrest Warrant Affidavits:

The authority to make a declaration of probable cause in support of a warrant for arrest (as contained in subd. (a)(1)) has been expanded from a “peace officer” to also include an employee of a public prosecutor’s office (e.g., a deputy district attorney, deputy city attorney, or investigator) when the target of the warrant is a peace officer.

Cannabis (Marijuana):

Bus. & Prof. Code §§ 26001, 26010 (Amended) & 26010.7 (New; AB 141 & SB 160; Effective 7/12/21):  The “Department of Cannabis Control:”

The “Bureau of Cannabis Control” has been changed to the “Department of Cannabis Control,” with all the same duties, powers, functions, and responsibilities. 

Note:  The Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA; B&P 26000–26260), the Fish & Game Code, the Food & Agricultural Code, the Government Code, the Health & Safety Code, the Penal Code, the Revenue & Taxation Code, and the Water Code have also been amended by SB 141 to reflect this name change. 

Bus. & Prof. Code § 26031.2 (New; AB 141; Effective 7/12/21):  Injunctive Relief for Violations of the MAUCRSA:

The Superior Court for the county in which a person has engaged, or is about to engage, in an act that violates the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA; B&P 26000–26260) may, upon a petition filed by the Department of Cannabis Control (DCC), issue an injunction or other appropriate order restraining such conduct, or order the violator to make restitution to persons injured as a result of the violation. The Court is also authorized to order the violator to reimburse the DCC for investigation expenses. These remedies are in addition to, and not a limitation on, the authority provided for in any other section of the MAUCRSA.

Per Pen. Code § 830.2 (Amended; AB 141), persons employed by the Department of Cannabis Control to enforce the MAUCRSA (B&P Code §§ 26000–26260) are “peace officers.”

Per Pen. Code § 830.11 (Amended; AB 141), the list of persons who are authorized to exercise the powers of arrest of a peace officer and serve search warrants even though not an actual peace officer, so long as they have taken a course in the exercise of these powers, has been expanded to include a person employed by the Department of Cannabis Control and designated as an investigator, investigator supervisor, or investigator manager, whose primary duty is the enforcement of, and investigations relating to, the MAUCRSA (B&P Code §§ 26000–26260).

Bus. & Prof. Code § 26038 (Amended; AB 1138):  Aiding and Abetting Unlicensed Commercial Cannabis Activity:

A person who “aids and abets unlicensed commercial cannabis activity” is added to the list of persons who are subject to civil penalties of up to three times the amount of the license fee for each violation, up to a maximum of $30,000 for each violation. Each day of unlicensed commercial cannabis activity constitutes a separate violation.

In order to prove “aiding and abetting,” all of the following must be proved:

1. The person was an owner, officer, controlling shareholder, or in a similar position of authority allowing him or her to make, command, and control decisions regarding the operation and management of the unlicensed cannabis activity;

2. The person had actual knowledge that the cannabis activity was unlicensed and that the activity required a license;

3. The person provided substantial assistance or encouragement to the unlicensed cannabis activity; and

4. The person’s conduct was a substantial factor in furthering the unlicensed cannabis activity.

An action for civil penalties must be brought within three years from the date of the violation.

Upon assessing a penalty for a violation of this section, the trial court must consider the following:

1. The gravity of the violation;
2. The good faith of the licensee or person;
3. The licensee’s or person’s history of previous violations; and
4. Whether and to what extent the licensee or person profited from the unlicensed cannabis activity.

Note:  As amended, District Attorneys is removed from the list of entities who may enforce these provisions against aiders and abettors (i.e., the Attorney General, County Counsels, City Attorneys, and city prosecutors; see subd. (a)(2)), although a District Attorney continues to be authorized to enforce these provisions against the actual perpetrators. (See Subd. (a)(1))

Bus. & Prof. Code § 26039.4 (Amended; AB 141; Effective 7/12/21):  Peace Officers’ Powers to Seize Cannabis and Cannabis Products.

Peace officers are empowered to seize cannabis and cannabis products when the cannabis is subject to recall or embargo by the Department of Cannabis Control, is subject to destruction, or is seized related to an investigation or disciplinary action for a violation of the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA; B&P 26000–26260).

Note:  These powers were previously contained in Bus. & Prof. Code § 26135, but is now deleted from the Business and Professions Code.

Bus. & Prof. Code § 26153.1 (New; AB 141, and Amended; SB 160; Effective no later than 1/1/23):  Establishment of Regulations Re:  Trade Samples:

The Department of Cannabis Control is required to adopt regulations establishing a process authorizing licensees to designate cannabis or cannabis products as a “trade sample.” Cannabis designated as trade samples must be labeled “TRADE SAMPLE. NOT FOR RESALE OR DONATION.” Trade samples may only be given for targeted advertising to licensees about new or existing cannabis products.

Per subd. (j), these provisions become effective upon adoption of regulations by the Department of Cannabis Control, but no later than January 1, 2023.

Pen. Code § 30625 (Amended; AB 141):  Possession of Assault Weapons and .50 BMG Rifles by the Department of Cannabis Control:

The Department of Cannabis Control is added to the long list of law enforcement agencies that may legally purchase, import, or possess an assault weapon or a .50 BMG rifle and not be in violation of Pen. Code §§ 30600 or 30610 (prohibition on .50 BMG rifles) or Pen. Code § 30605 (prohibition on assault weapons).

Pen. Code § 32000 (Amended, AB 141, Effective 7/12/2021; and (Amended; SB 715):  Department of Cannabis Control’s Purchase of Unsafe Handguns:

AB 141 adds the Department of Cannabis Control to the long list of law enforcement agencies that are authorized to purchase unsafe handguns for use as service weapons by their sworn members if those members have completed a firearms training course, and complete a live-fire qualification every six months. SB 715 makes a technical correction to a cross-reference.

Child Abuse:

Pen. Code § 11166.1 (Amended; AB 670):  Child Abuse or Neglect Reports:

Pursuant to this amended section, when an agency receives a report pursuant to Pen. Code § 11166 alleging abuse or neglect of the child of a “minor parent” or a “non-minor dependent parent,” the agency must, within 36 hours, provide notice of the report to the attorney who represents the minor parent or non-minor dependent parent in dependency court.

The terms “minor parent” and “non-minor dependent parent” have the same meaning as in existing W&I Code § 16002.5: i.e., “minor parent” means a dependent child who is also a parent and “non-minor dependent parent” means a non-minor dependent of the court who is also a parent.

Note:  By “agency,” this statute is referring to “any police department or sheriff’s department, not including a school district police or security department, county probation department, if designated by the county to receive mandated reports, or the county welfare department.”  (See Pen. Code § 11165.9.)

Contempt of Court:

Pen. Code § 166 (Amended; AB 764): Contempt of Court via Social Media:

Added to subdivision (b)(1) is the act of contacting a person by “social media, electronic communication, or electronic communication device” adding such an act to the methods of communication (i.e., telephone, mail, or directly) that elevate punishment for contempt of court from a maximum of six months in jail to a maximum of one year in jail when an offender violates Pen. Code § 166(a)(4) (willful disobedience of a court order) and has previously been convicted of a violation of Pen. Code § 646.9 (stalking). The fine that may be imposed was also changed from exactly $5,000 to a fine of “no more than” $5,000.

Subd. (e)(2)(A), (3) and (4):  The term “battered women’s shelter” is changed to “domestic violence shelter-based program.”

Definitions:

Subd. (b)(4)(A): “Social media” is defined as having the same definition as in Pen. Code § 632.01 (i.e.; an electronic service or account, or electronic content, including, but not limited to, videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.)

Subd. (b)(4)(B): “Electronic communication” is defined as having the same definition as in Pen. Code § 646.9(h) (i.e., the same definition as in 18 U.S.C. 2510, subsection 12, which in turn defines the term as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include a wire or oral communication, a communication made through a tone-only paging device, a communication from a tracking device, or electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.”)

Subd. (b)(4)(C): “Electronic communication device” is defined as having the same definition as in Pen. Code § 646.9(h) (i.e., as “including, but not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers.”)

Courtrooms:

Code of Civil Proc. § 124 (Amended; AB 716):  Public Access to Courtrooms:

A court is prohibited from excluding the public from physical access to a courtroom merely because remote access is available.

An exception is provided for when it is necessary to restrict or limit physical access to a courtroom to protect the health or safety of the public or court personnel.

When a courthouse is lawfully physically closed, as per the “exception,” above, the court must provide, at a minimum, a public audio stream or telephonic means by which to listen to the proceedings, unless there is another law that authorizes or requires a proceeding to be closed.

“Remote access” is defined as including, but not limited to, an audio stream that is available on an internet website or telephonic means to listen to a court proceeding.

Courtroom Trial Procedures:

Cal. Code of Civil Proc. § 231.7 (Amended: SB 3070; Effective 1/1/21, Operative 1/1/22):  Preemptory Challenges:

(a) A party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.

(b) A party, or the trial court on its own motion, may object to the improper use of a peremptory challenge under subdivision (a). After the objection is made, any further discussion shall be conducted outside the presence of the panel. The objection shall be made before the jury is impaneled, unless information becomes known that could not have reasonably been known before the jury was impaneled.

(c) Notwithstanding Section 226, upon objection to the exercise of a peremptory challenge pursuant to this section, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised.

(d)

(1) The court shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. The court shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge. If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. The court need not find purposeful discrimination to sustain the objection. The court shall explain the reasons for its ruling on the record. A motion brought under this section shall also be deemed a sufficient presentation of claims asserting the discriminatory exclusion of jurors in violation of the United States and California Constitutions.

(2)

(A) For purposes of this section, an objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California.

(B) For purposes of this section, a “substantial likelihood” means more than a mere possibility but less than a standard of more likely than not.

(C) For purposes of this section, “unconscious bias” includes implicit and institutional biases.

(3) In making its determination, the circumstances the court may consider include, but are not limited to, any of the following:

(A) Whether any of the following circumstances exist:

(i) The objecting party is a member of the same perceived cognizable group as the challenged juror.

(ii) The alleged victim is not a member of that perceived cognizable group.

(iii) Witnesses or the parties are not members of that perceived cognizable group.

(B) Whether race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, bear on the facts of the case to be tried.

(C) The number and types of questions posed to the prospective juror, including, but not limited to, any the following:

(i) Consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the concerns later stated by the party as the reason for the peremptory challenge pursuant to subdivision (c).

(ii) Whether the party exercising the peremptory challenge engaged in cursory questioning of the challenged potential juror.

(iii) Whether the party exercising the peremptory challenge asked different questions of the potential juror against whom the peremptory challenge was used in contrast to questions asked of other jurors from different perceived cognizable groups about the same topic or whether the party phrased those questions differently.

(D) Whether other prospective jurors, who are not members of the same cognizable group as the challenged prospective juror, provided similar, but not necessarily identical, answers but were not the subject of a peremptory challenge by that party.

(E) Whether a reason might be disproportionately associated with a race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups.

(F) Whether the reason given by the party exercising the peremptory challenge was contrary to or unsupported by the record.

(G) Whether the counsel or counsel’s office exercising the challenge has used peremptory challenges disproportionately against a given race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, in the present case or in past cases, including whether the counsel or counsel’s office who made the challenge has a history of prior violations under Batson v. Kentucky (1986) 476 U.S. 79, People v. Wheeler (1978) 22 Cal.3d 258, Section 231.5, or this section.

(e) A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case:

(1) Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system.

(2) Expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.

(3) Having a close relationship with people who have been stopped, arrested, or convicted of a crime.

(4) A prospective juror’s neighborhood.

(5) Having a child outside of marriage.

(6) Receiving state benefits.

(7) Not being a native English speaker.

(8) The ability to speak another language.

(9) Dress, attire, or personal appearance.

(10) Employment in a field that is disproportionately occupied by members listed in subdivision (a) or that serves a population disproportionately comprised of members of a group or groups listed in subdivision (a).

(11) Lack of employment or underemployment of the prospective juror or prospective juror’s family member.

(12) A prospective juror’s apparent friendliness with another prospective juror of the same group as listed in subdivision (a).

(13) Any justification that is similarly applicable to a questioned prospective juror or jurors, who are not members of the same cognizable group as the challenged prospective juror, but were not the subject of a peremptory challenge by that party. The unchallenged prospective juror or jurors need not share any other characteristics with the challenged prospective juror for peremptory challenge relying on this justification to be considered presumptively invalid.

(f) For purposes of subdivision (e), the term “clear and convincing” refers to the degree of certainty the factfinder must have in determining whether the reasons given for the exercise of a peremptory challenge are unrelated to the prospective juror’s cognizable group membership, bearing in mind conscious and unconscious bias. To determine that a presumption of invalidity has been overcome, the factfinder shall determine that it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror’s ability to be fair and impartial in the case.

(g)

(1) The following reasons for peremptory challenges have historically been associated with improper discrimination in jury selection:

(A) The prospective juror was inattentive, or staring or failing to make eye contact.

(B) The prospective juror exhibited either a lack of rapport or problematic attitude, body language, or demeanor.

(C) The prospective juror provided unintelligent or confused answers.

(2) The reasons set forth in paragraph (1) are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court’s own observations or the observations of counsel for the objecting party. Even with that confirmation, the counsel offering the reason shall explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried.

(h) Upon a court granting an objection to the improper exercise of a peremptory challenge, the court shall do one or more of the following:

(1) Quash the jury venire and start jury selection anew. This remedy shall be provided if requested by the objecting party.

(2) If the motion is granted after the jury has been impaneled, declare a mistrial and select a new jury if requested by the defendant.

(3) Seat the challenged juror.

(4) Provide the objecting party additional challenges.

(5) Provide another remedy as the court deems appropriate.

(i) This section applies in all jury trials in which jury selection begins on or after January 1, 2022.

(j) The denial of an objection made under this section shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

(k) This section shall not apply to civil cases.

(l) It is the intent of the Legislature that enactment of this section shall not, in purpose or effect, lower the standard for judging challenges for cause or expand use of challenges for cause.

(m) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

(n) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.

Cal. Code of Civil Proc. § 240 (New: AB 1452):  Juror Pay Pilot Program:

The Superior Court of San Francisco, the City and County of San Francisco, and their “justice partners,” are authorized to conduct a pilot program of up to two years to pay low-income jurors $100 per day in criminal cases, if their household income for the past 12 months is less than 80 percent of the San Francisco Bay Area median income (estimated at $71,700 for a single person and $102,500 for a family of four) and if they meet one of these additional criteria:

1. The trial juror’s employer does not compensate for jury service;
2. The trial juror is self-employed; or
3. The trial juror is not employed.

“Justice partners” is defined as “the San Francisco Financial Justice Project within the Treasurer’s Office, the San Francisco Public Defender’s Office, the San Francisco District Attorney’s Office, and the San Francisco Bar Association.”  (Subd. (j))

Note:  Jurors are normally paid $15 a day (except for federal, state, or local government entity—or any other public entity—employees, who receive nothing), plus mileage ($.34/mile).  (Code of Civ. Proc. § 215)

Pen. Code § 977 (Amended; AB 700):  A Defendant’s Waiver of Presence:

New subd. (d) allows a court to proceed with a trial or hearing and allows a defendant to appear by counsel when an in-custody defendant refuses to come to court and the judge makes specified findings.

A court may allow an in-custody defendant to appear by counsel at a trial, hearing, or other proceeding, with or without a written waiver, if the court finds all of the following to be true by clear and convincing evidence:

1. The defendant is in custody and is refusing, without good cause, to appear in court that day;

2. The defendant has been informed of the right and obligation to be personally present in court;

3. The defendant has been informed that the trial or hearing will proceed without the defendant being present;

4. The defendant has been informed of the right to remain silent;

5. The defendant has been informed that absence without good cause will constitute a voluntary waiver of any constitutional or statutory right to confront witnesses and to testify on his or her own behalf; and

6. The defendant has been informed as to whether or not defense counsel will be present.

The court is required to state on the record the reasons for the court’s findings, and the findings and reasons must be entered into the minutes.

If the trial or hearing lasts for more than one day, the court is required to make these findings anew for each day that the defendant is absent

This new subdivision does not apply to any trial or hearing in which the defendant was personally present in court at the commencement of the trial or hearing.

Note:  This bill also makes similar amendments to Pen. Code § 1043(f) (trials) and Pen. Code § 1043.5(e) (preliminary hearings).

Pen. Code § 1170(b) (Amended; AB 124 & 567):  Aggravating Factors; Trial Requirements:

AB 124 amended Pen. Code § 1170(b) to require that upon sentencing a convicted defendant, the low term is to be imposed if a specified mitigating circumstance is found to have been a contributing factor in the commission of the crime, unless the court finds that the aggravating circumstances outweigh the mitigating circumstances such that imposition of the lower term would be contrary to the interests of justice.

These provisions are in new paragraph (6) of Pen. Code § 1170(b), as follows:  

1. The defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.

2. The defendant is a youth, or was a youth at the time the crime was committed. Defines “youth” as a person under age 26 on the date of the offense.

3. Prior to the offense, or during its commission, the defendant was a victim of intimate partner violence or human trafficking.

SB 567 amended Pen. Code § 1170(b) by adding a requirement that when a statute specifies three possible sentencing terms, the court shall impose no more than the middle term except where there are aggravating circumstances that justify the high term, and the facts underlying the aggravating circumstances have either been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial.

Per the amended section 1170(b), if the defendant requests bifurcation, the aggravating circumstances must be tried separately from the underlying charges and enhancements. There are three exceptions to this rule:

1. When the evidence supporting an aggravating circumstance is admissible to prove or defend against a charged crime or enhancement at trial. (E.g., evidence of violence and bodily harm (Rule of Court 4.421(a)(1)), weapon arming or use (Rule of Court 4.421(a)(2)), attempted or actual taking or damage of great monetary value (Rule of Court 4.421(a)(9)), or large quantity of contraband (Rule of Court 4.421(a)(10)).

2. When the evidence supporting an aggravating circumstance “is otherwise authorized by law.”

3. When the aggravating factor is a prior conviction that is not the basis for an enhancement, the court is permitted to “consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.”

The jury cannot be informed of bifurcated allegations until there is a conviction on a felony offense.

Aggravating factors must be alleged in the charging document and, unless stipulated to by the defendant, proved beyond a reasonable doubt at trial.

Note:  See also Pen. Code § 1170.1 (Amended).

Pen Code § 1428.5 (New; AB 143):  Remote Court Proceedings for Infractions:

Courts are authorized to conduct proceedings remotely, including arraignments and trials, for all infractions.  The court is required to obtain a defendant’s consent for remote proceedings and permits a court to require the physical presence of any witness or party in court for a particular proceeding.  This new section does not apply to felonies or misdemeanors. The Judicial Council is authorized to adopt rules of court to implement this section.

Note:  See also Gov’t. Code §§ 68645–68645.7 (New; AB 143) providing for the online adjudication of infraction violations and the online determination of a defendant’s ability to pay.

Domestic Violence and Gun Violence Restraining and Protective Orders:

Family Code § 6216 (New; AB 1057; Effective 7/1/22):  Definition of “Firearm” for purposes of a “Domestic Violence Restraining Order:”

This new section expands the definition of “firearm” for purposes of firearm restrictions on a person subject to a “domestic violence restraining order,” as follows:

For the purposes of this division, “firearm” includes the frame or receiver of the weapon and includes a precursor part. “Firearm precursor part” has the same meaning as in subdivision (a) of Section 16531 of the Penal Code.

Note: 

Pen. Code § 16531(a) defines “firearm precursor part” as a component of a firearm that is necessary to build or assemble a firearm and is described in either of the following categories:

1. An unfinished receiver, including both a single part receiver and a multiple part receiver, such as a receiver in an AR-10- or AR-15-style firearm. An unfinished receiver includes a receiver tube, a molded or shaped polymer frame or receiver, a metallic casting, a metallic forging, and a receiver flat, such as a Kalashnikov-style weapons system, Kalashnikov-style receiver channel, or a Browning-style receiver side plate.

(2) An unfinished handgun frame.

(c)  Firearm parts that can only be used on antique firearms, as defined in subdivision (c) of Section 16170, are not firearm precursor parts.

(d) A firearm precursor part is not a firearm or the frame or receiver thereof. A firearm precursor part that is attached or affixed to a firearm is not subject to the requirements of Chapter 1.5 (commencing with Section 30400) of Division 10 of Title 4 of Part 6 or Section 18010.

Family Code § 6304 (Amended; SB 320):  Information re: Firearms and Ammunition Provided to Parties to a Domestic Violence Restraining Order:

Additional information is added to the information the court is required to provide to the parties when issuing a domestic violence protective order; i.e.:

How any firearms or ammunition still in the restrained party’s possession are to be relinquished, according to local procedures; and

The process for submitting a receipt to the court showing proof of relinquishment.

Family Code §§ 6306.5, 6306.6, 6307, & 6308 (New; AB 887 & 538):  Domestic Violence Restraining Orders:

Various new provisions are provided modernizing domestic violence restraining order procedures by allow for the electronic filings and remote court hearings, as well as requiring that information about access to self-help services regarding domestic violence restraining orders be prominently visible on the Superior Court’s Internet Web site.

Family Code § 6320 (Amended; SB 374):  Reproductive Coercion:

The types of conduct that may be the subject of an ex parte domestic violence restraining order has been expanded to include a fifth category; i.e., “reproductive coercion.”

“Reproductive coercion” is defined as taking control over the reproductive autonomy of another person through force, threat of force, or intimidation, which may include, but is not limited to, unreasonably pressuring the other party to become pregnant, deliberately interfering with contraception use or access to reproductive health information, or using coercive tactics to control, or to attempt to control, pregnancy outcomes.

Note:  The other four categories are (as contained in Subd. (c)):

(1) Isolating the other party from friends, relatives, or other sources of support.

(2) Depriving the other party of basic necessities.

(3) Controlling, regulating, or monitoring the other party’s movements, communications, daily behavior, finances, economic resources, or access to services.

(4) Compelling the other party by force, threat of force, or intimidation, including threats based on actual or suspected immigration status, to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage.

Family Code § 6322.5 (New; SB 320):  Procedures for When a Restrained Person is Alleged to Have a Firearm or Ammunition:

When a family or juvenile law domestic violence protective order is issued or is in effect (pursuant to Fam. Code § 6218 or W&I Code § 213.5), and information is presented to the court that the restrained person has a firearm, the following procedures are to be followed:

Procedures for Determining Whether a Restrained Person Has a Firearm or Ammunition: The Court Must Consider Relevant Information:

When relevant information is presented at a noticed hearing that a restrained person has a firearm or ammunition, the court is required to consider the information and determine, by a preponderance of the evidence, whether the restrained person has a firearm or ammunition in, or subject to, his or her immediate possession or control in violation of Fam. Code § 6389.

The Court Must Determine Whether a Restrained Person Has a Firearm or Ammunition:

The court may consider whether the restrained person filed a firearm relinquishment, storage, or sales receipt, or if an exemption from the firearm prohibition was granted pursuant to Fam. Code § 6389(h) (the firearm or ammunition is necessary for employment).

The court is authorized to make the determination at a noticed hearing when a domestic violence protective order is issued, at a subsequent review hearing, or at any subsequent family or juvenile law hearing while the protective order remains in effect. If the court determines that the restrained person has a firearm or ammunition in violation of Fam. Code § 6389, the court shall make a written record of the determination and provide a copy to any party who is present at the hearing, and, upon request, to any party not present at the hearing.

Subsequent Review Hearings: 

When the court is presented with information that a restrained person has a firearm or ammunition, the court may set a review hearing to determine whether there are been a violation of Fam. Code § 6389.  The review hearing must be held within 10 court days after the noticed hearing at which information was presented.

If the restrained person is not present when the court sets the review hearing, the protected person shall provide notice of the review hearing to the restrained person at least two court days before the review hearing, by personal service or by mail to the restrained person’s last known address.

The court may, for good cause, extend the date of the review hearing for a reasonable period or remove it from the calendar.

The court is required to order the restrained person to appear at the hearing. The court may conduct the hearing in the absence of the protected person. The court may permit a party or witness to appear remotely.

A Court May Issue an Order to Show Cause for Contempt or Impose Monetary Sanctions:

The determination (about firearms and/or ammunition) may be made pursuant to this new section and may be considered by the court in issuing an order to show cause for contempt pursuant to Code of Civ. Proc. Code of Civ. Proc. § 1209(a)(5) (Disobedience of any lawful judgment, order, or process of the court) or an order for monetary sanctions pursuant to Code of Civ. Proc. § 177.5 (up to a $1,500 sanction for the violation of a lawful court order, done without good cause or substantial justification.)

Notes:

The above is as previously contained in Rule of Court 5.495, and applies to both firearms and ammunition.

Fam. Code § 6389 provides that a person subject to a Fam. Code § 6218 domestic violence protective order shall not own, possess, purchase, or receive a firearm or ammunition, and requires the court to order relinquishment. (See below)

See Welf. & Inst. Code § 213.5 (Amended; SB 320): When a juvenile court issues a protective order pursuant to this section, Fam. Code § 6389 (see below) applies, and the court must make a determination as to whether the restrained person is in possession or control of a firearm or ammunition as provided in new Fam. Code § 6322.5. (See above)

Family Code § 6389 (Amended; SB 320):  Relinquishment of Firearms and Ammunition by a Restrained Person:

Two additional ways that a restrained person may relinquish a firearm or ammunition have been added to the statute; i.e.:

1. Transfer the firearm or ammunition to a licensed gun dealer; or
2. Relinquishment the firearm or ammunition for storage to a licensed gun dealer.

Note:  The section continues to permit a restrained person to sell a firearm or ammunition to a licensed gun dealer, or to surrender them to law enforcement officials.

New requirements for the court are added to the statute: 

1. Review the case file and determine whether the restrained person has filed a receipt showing the surrender or relinquishment of firearms and/or ammunition;
2. Inquire of the restrained person whether he or she has complied with the relinquishment requirement; and
3. Report violations of the firearms prohibition to the prosecuting attorney within two business days.

The statute now requires (i.e., “shall”) instead of “recommend(ing)”, that every law enforcement agency develop, adopt, and implement written policies and standards for officers who request, pursuant to existing provisions in Fam. Code § 6389, that restrained persons relinquish firearms and ammunition.  (Subd. (c)(5))

Note:  Fam. Code § 6389 prohibits a person subject to a domestic violence protective order from owning, possessing, purchasing, or receiving a firearm or ammunition while that protective order is in effect, and sets forth relinquishment procedures. Section 6389 requires a court, upon issuing a protective order, to also order the restrained person to relinquish firearms and ammunition. It requires a law enforcement officer who serves a protective order that indicates the restrained person possesses firearms or ammunition, to request that the person immediately surrender them.  The section also provides that if a request is not made by law enforcement, the relinquishment must occur within 24 hours of being served with the protective order.

 

Note:  See Pen. Code § 25555 (Amended; SB 320):  “Transportation of a Firearm For the Purpose of Relinquishing the Firearm By a Person Subject to a Domestic Violence Restraining Order,” below.

 

Pen. Code § 1203.4 (Amended; AB 1281):  Protective Orders and Dismissal of an Underlying Criminal Case:

 

The dismissal of a conviction does not release the defendant from the terms and conditions of any unexpired criminal protective order that was issued pursuant to Pen. Code § 136.2(i)(1) (a restraining order for up to ten years in favor of the victim of a specified domestic violence, sex, or gang crime); Pen. Code § 273.5(j) (a restraining order for up to ten years in a domestic violence case); Pen. Code § 368(l) (a restraining order for up to ten years in an elder abuse, elder fraud, or elder false imprisonment case), or Pen. Code § 646.9(k) (a restraining order for up to 10 years in a stalking case).

 

Such a protective order remains in full force and effect until the expiration date or until it is modified or terminated by court order.

 

Note:  See also Pen. Code §§ 1203.4a and 1203.4b. (Amended; AB 1281), providing the same.

 

Pen. Code § 16520 (Amended, Effective 7/1/2022; AB 1057):  Firearms, for Purposes of a Gun Violence Restraining Order:

 

The definition of firearms for purposes of “gun violence restraining orders” (GVROs) has been expanded by providing that for the purposes Pen. Code §§ 18100–18205, “firearm” includes the frame or receiver of the weapon and includes a precursor part.

 

Per this section as amended, a “firearm precursor part” has the same meaning as in Pen. Code § 16531(a); i.e., a component of a firearm that is necessary to build or assemble a firearm and is either an unfinished receiver or an unfinished handgun frame.

 

Note:  As a result, pursuant to enforcing a GVRO, law enforcement is authorized to seize an intact firearm or parts of a firearm (which could be used to assemble a “ghost gun”).

 

Pen. Code § 18122 (New; SB 538):  Electronic Filing of Gun Violence Restraining Orders:

 

By July 1, 2023, courts are to permit the electronic filing of petitions for gun violence restraining orders, whether during and after normal business hours. The Superior Court of each county is to develop local rules and instructions for electronic filing, and to post on its Internet Web site a telephone number for the public to call to obtain information about electronic filing.  The telephone line is to be staffed during regular business hours and requires court staff to respond to all telephonic inquiries within one business day.

 

Pen. Code § 18123 (New; SB 538): Remote Hearings on Gun Violence Restraining Orders:

 

A party or witness is permitted to appear remotely at the hearing on a petition for a gun violence restraining order. The Superior Court of each county is to develop local rules and instructions for remote appearances and to post them on its Internet Web site. The Superior Court of each county is also to post on its Internet Web site a telephone number for the public to call to obtain assistance regarding remote appearances. The telephone line is to be staffed 30 minutes before the start of the court session at which the hearing will take place, and during the court session.

 

Pen. Code § 25555 (Amended; SB 320):  Transportation of a Firearm For the Purpose of Relinquishing the Firearm By a Person Subject to a Domestic Violence Protective Order:

 

An exception to the crime of carrying a concealed firearm (per Pen. Code § 25400) has been added; i.e., the transportation of a firearm in order to comply with Fam. Code § 6389 (the relinquishment of a firearm by a person subject to a domestic violence protective order).

 

Pen. Code § 26379 (Amended; SB 320):  Openly Carrying a Firearm For the Purpose of Relinquishing the Firearm By a Person Subject to a Domestic Violence Protective Order:

 

An exception to the crime of openly carrying an unloaded handgun (per Pen. Code § 26350(a)(1)) has been added; i.e., the transportation of a firearm in order to comply with Fam. Code § 6389 (the relinquishment of a firearm by a person subject to a domestic violence protective order).

 

Pen. Code § 26405 (Amended; SB 320):  Carrying an Unloaded Firearm That is Not a Handgun on One’s Person by a Person Subject to a Domestic Violence Protective Order:

 

An exception to the crime of openly carrying an unloaded firearm that is not a handgun on one’s person (per Pen. Code § 26400 has been added; i.e., the transportation of a firearm in order to comply with Fam. Code § 6389 (the relinquishment of a firearm by a person subject to a domestic violence protective order).

 

Pen. Code § 26540 (Amended; SB 320):  The Sale, Delivery, or Transfer of a Firearm to a Dealer In Order to Comply With a Domestic Violence Protective Order:

 

An exception to the crime of selling, leasing, or transferring a firearm without a license (per in Pen. Code § 26500), is, per this amendment, the sale, delivery, or transfer of a firearm to a dealer in order to comply with the firearm relinquishment provisions of Fam. Code § 6389, which requires a person who is subject to a domestic violence protective order to relinquish firearms and ammunition.

 

Elder and Dependent Adult Abuse:

 

Welf. & Insti. Code § 15657.03 (Amended; AB 1243; Effective 1/1/2023):  Elder and Dependent Adult Abuse; Isolation and Financial Abuse:

 

Two types of protective orders that may be issued on behalf of an elder or dependent adult have been added; one pertaining to isolation and the other to specific debts that were incurred as a result of financial abuse.

 

Isolation:  An order prohibiting a party from isolating an elder or dependent adult has been added to the types of protective orders that may be issued pursuant to this section. An elder or dependent adult make seek an order prohibiting isolation, or the order may be sought on behalf of the elder or dependent adult. Also, an “interested party” is permitted to seek a protective order prohibiting isolation.

 

“Interested party” is defined as a person with a personal, pre-existing relationship with the elder or dependent adult.

 

Isolation:  The court is required to find the following circumstances by a preponderance of the evidence in order to issue a protective order prohibiting isolation:

 

1. The respondent’s past act or acts of isolation repeatedly prevented contact with the interested party;

 

2. The elder or dependent adult expressly desires contact with the interested party; and

 

3. The respondent’s isolation of the elder or dependent adult from the interested party was not in response to an actual or threatened abuse of the elder or dependent adult by the interested party or the elder or dependent adult’s desire not to have contact with the interested party.

 

An order enjoining isolation may not be issued under this section if the elder or dependent adult resides in a long-term care facility, a residential facility, or a health facility. Under these circumstances, action may be taken under other appropriate state or federal laws.

 

Debts Incurred as a Result of Financial Abuse: An order finding that specific debts were incurred as a result of the financial abuse of an elder or dependent adult has been added to the types of protective orders that may be issued pursuant to this section.

 

The acts that may support this type of order, include, but are not limited to, identity theft crimes proscribed by existing Pen. Code § 530.5.

 

The Judicial Council is to revise or promulgate forms by February 1, 2023.

 

Note:  This section continues to also apply to protective orders that enjoin contact, physical abuse, harassment, threats, etc.

 

Elections:

 

Elections Code § 319.5 (Amended; SB 35):  Electioneering:

 

The crime of “electioneering” has been expanded to include all of the following:

 

1. “Electioneering” means the visible display or audible dissemination of information that advocates for or against any candidate or measure on the ballot within the 100 foot limit specified in subdivision (b). Prohibited electioneering information or activity includes, but is not limited to, any of the following:

 

(1) A display of a candidate’s name, likeness, or logo.

(2) A display of a ballot measure’s number, title, subject, or logo.

(3) Buttons, hats, pencils, pens, shirts, signs, or stickers containing electioneering information.

(4) Dissemination of audible electioneering information.

(5) Obstructing access to, loitering near, or disseminating visible or audible electioneering information at vote by mail ballot drop boxes.

 

(b) The activities described in subdivision (a) are prohibited within 100 feet of either of the following:

 

(1) The entrance to a building that contains a polling place as defined by Section 338.5, an elections official’s office, or a satellite location specified in Section 3018.

(2) An outdoor site, including a curbside voting area, at which a voter may cast or drop off a ballot.

 

Notes: 

 

Pursuant to Elec. Code § 338.5, a “‘Polling place’ means a location where a voter casts a ballot and includes the following terms, as applicable: poll, polling location, and vote center. A polling place can serve more than one precinct.”

 

Elec. Code § 3018 discusses “satellite locations,” including the office of elections officials.

 

Elections Code § 18370 (Amended; SB 35):  Misdemeanor Electioneering:

 

The crime of “misdemeanor electioneering” has been expanded as follows:

 

1. A person shall not, on election day, or at any time that a voter may be casting a ballot, within the 100 foot limit specified in subdivision (b), do any of the following:

 

(1) Circulate an initiative, referendum, recall, or nomination petition or any other petition.

(2) Solicit a vote or speak to a voter on the subject of marking the voter’s ballot.

(3) Place a sign relating to voters’ qualifications or speak to a voter on the subject of the voter’s qualifications except as provided in Section 14240.

(4) Do any electioneering as defined by Section 319.5.  (See above)

 

2. The activities described in subdivision (a) are prohibited within 100 feet of either of the following:

 

(1) The entrance to a building that contains a polling place as defined by Section 338.5, an elections official’s office, or a satellite location specified in Section 3018.

 

(2) An outdoor site, including a curbside voting area, at which a voter may cast or drop off a ballot.

 

(c) A person shall not, on election day, or at any time that a voter may be casting a ballot, do any of the following within the immediate vicinity of a voter in line to cast a ballot or drop off a ballot:

 

(1) Solicit a vote.

(2) Speak to a voter about marking the voter’s ballot.

(3) Disseminate visible or audible electioneering information.

 

(d) Any person who violates any of the provisions of this section is guilty of a misdemeanor.

 

Notes: 

 

Pursuant to Elec. Code § 338.5, a “‘Polling place’ means a location where a voter casts a ballot and includes the following terms, as applicable: poll, polling location, and vote center. A polling place can serve more than one precinct.”

 

Elec. Code § 3018 discusses “satellite locations,” including the office of elections officials.

 

Elec. Code § 14240 discusses who may orally challenge a person who is attempting to vote, limiting it to “a member of a precinct board or other official responsible for the conduct of the election,” and listing the grounds for such a challenge.

 

Elections Code § 18541 (Amended; SB 35):  Felony Electioneering:

 

The crime of “felony electioneering” has been expanded as follows:

 

1. A person shall not, with the intent of dissuading another person from voting, within the 100 foot limit specified in subdivision (b), do any of the following:

 

(1) Solicit a vote or speak to a voter on the subject of marking the voter’s ballot.

(2) Place a sign relating to voters’ qualifications or speak to a voter on the subject of the voter’s qualifications except as provided in Section 14240.

(3) Photograph, video record, or otherwise record a voter entering or exiting a polling place.

(4) Obstruct ingress, egress, or parking.

 

(b) The activities described in subd. (a) are prohibited within 100 feet of either of the following:

 

(1) The entrance to a building that contains a polling place as defined by Section 338.5, an elections official’s office, or a satellite location specified in Section 3018.

(2) An outdoor site, including a curbside voting area, at which a voter may cast or drop off a ballot.

 

(c) A person shall not, with the intent of dissuading another person from voting, do any of the following within the immediate vicinity of a voter in line to cast a ballot or drop off a ballot:

 

(1) Solicit a vote.

(2) Speak to a voter about marking the voter’s ballot.

(3) Disseminate visible or audible electioneering information.

 

(d) A violation of this section is punishable by imprisonment in a county jail for not more than 12 months, or in state prison. Any person who conspires to violate this section is guilty of a felony.

 

Notes: 

 

Pursuant to Elec. Code § 338.5, a “‘Polling place’ means a location where a voter casts a ballot and includes the following terms, as applicable: poll, polling location, and vote center. A polling place can serve more than one precinct.”

 

Elec. Code § 3018 discusses “satellite locations,” including the office of elections officials.

 

Elec. Code § 14240 discusses who may orally challenge a person who is attempting to vote, limiting it to “a member of a precinct board or other official responsible for the conduct of the election,” and listing the grounds for such a challenge.

 

Elections Code §18568 (Amended; SB 35):  Fake Ballot Boxes:

 

This felony section that deals with tampering with election ballots or stuffing or taking from ballot boxes has been amended to add the following two new subdivisions: 

 

(g) Displays a container for the purpose of collecting ballots, with the intent to deceive a voter into casting a ballot in an unofficial ballot box. Evidence of intent to deceive may include using the word “official” on the container, or otherwise fashioning the container in a way that is likely to deceive a voter into believing that the container is an official collection box that has been approved by an elections official.

 

(h) Directs or solicits a voter to place a ballot in a container prohibited by subdivision (g).

 

Punishable pursuant to Pen. Code § 1170(h) by 16 months, two years, or three years in jail and/or by a fine of up to $1,000.

 

Emotional Support Animals:

 

Health & Safety § 122317 (New; AB 468):  Required Written Notices to Buyers or Recipients of Emotional Support Dogs or Support Dog Paraphernalia:

 

Subd. (a):  A seller or provider of an emotional support dog is required to provide written notice to the buyer or recipient of all of the following:

 

1. The dog does not have the training required to qualify as a guide, signal, or service dog;

 

2. The dog is not entitled to the rights and privileges accorded by law to a guide, signal, or service dog; and

 

3. To knowingly and fraudulently represent oneself to be the owner or trainer of a canine licensed or qualified as a guide, signal, or service dog is a misdemeanor violation of existing Pen. Code § 365.7.

 

Note:  Pen. Code § 365.7 is the misdemeanor crime of fraudulently misrepresenting oneself as the owner of (or one who is authorized by the owner to use) a guide, signal, or service dog, and is punishable by up to six months in county jail and/or $1,000 fine.

 

Subd. (b): A seller or a provider of a certificate, identification, tag, vest, leash, or harness for an emotional support animal, is required to provide written notice to the buyer or recipient that states both of the following:

 

1. The item does not entitle an emotional support animal to the rights and privileges accorded by law to a guide, signal, or service dog; and

 

2. Knowingly and fraudulently representing oneself to be the owner or trainer of a canine licensed or qualified as a guide, signal, or service dog is a misdemeanor violation of existing Pen. Code § 365.7.

 

 

 

 

 

Health & Safety § 122318 (New; AB 468): Requirements for a Health Care Practitioner In Order To Provide Emotional Support Dog Documentation:

 

A health care practitioner is prohibited from providing documentation of a person’s need for an emotional support dog unless all of the following are complied with:

 

1. The practitioner possesses a valid and active license, and specified information about the license is included in the documentation;

 

2. The practitioner is licensed to provide professional services within the scope of the license in the jurisdiction in which the documentation is provided;

 

3. The practitioner establishes a client-provider relationship with the person for at least 30 days prior to providing documentation about the person’s need for an emotional support dog;

 

4. The practitioner completes a clinical evaluation of the person regarding the need for an emotional support dog; and

 

5. The practitioner provides a verbal or written notice to the person that knowingly and fraudulently representing oneself to be the owner or trainer of a canine licensed or qualified as a guide, signal, or service dog is a misdemeanor violation of existing Pen. Code § 365.7.

 

Health & Safety § 122319 (New; AB 468):  Civil Penalties for Violations:

 

A violation of either of the following is subject to a civil penalty of $500 for a first violation, $1,000 for a second violation, and $2,500 for a third or subsequent violation:

 

1. Knowingly and fraudulently representing, selling, or offering for sale, attempting to represent, sell, or offer for sale, an emotional support dog as being entitled to the rights and privileges accorded by law to a guide, signal, or service dog; or

 

2. Violating the written notice requirements specified in H&S § 122317. Authorizes a district attorney, county counsel, city attorney, or the Attorney General to being an action for civil penalties.

 

Health & Safety § 122319.5 (New; AB 468):  Definitions:

 

“Emotional support animal” and “emotional support dog” is defined as an animal that provides emotional, cognitive, or other similar support to an individual with a disability, and that does not need to be trained or certified.

 

Environmental Law:

 

Fish & Game Code § 2024 (New; AB 223):  Harvesting and Selling the Dudleya plant:

 

Crimes:   Absent a license to do so, per Subd. (c), it is a misdemeanor to:

 

Uproot, remove, harvest, or cut dudleya from land owned by the state or a local government or from property not their own without written permission from the landowner in their immediate possession.”  (Subd. (c))

 

Sell, transport for sale, export for sale, or purchase dudleya uprooted, removed, harvested, or cut in violation of subdivision (c).”  (Subd. (d))

 

Both offenses have a three year statute of limitations.  (Subd. i))

 

“Dydleya” is defined as “a succulent plant that belongs to the genus Dudleya and referred to commonly as ‘live-forevers’ or ‘dudleya’ that is native to California and grows in natural habitats.”  (Subd. (b))

 

Punishment:

 

For a first conviction, where the total value is two hundred fifty dollars ($250) or more, the offense shall be a misdemeanor punishable by a fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000), imprisonment in the county jail for not more than six months, or by both the fine and imprisonment. (Subd. (f)(1))

 

For a second or subsequent conviction, the offense shall be a misdemeanor punishable by a fine of not less than ten thousand dollars ($10,000) and not more than five hundred thousand dollars, ($500,000), imprisonment in the county jail for not more than six months, or by both the fine and imprisonment.  (Subd. (f)(2))

 

The cost of replanting any dudleya forfeited pursuant to subdivision (h), may be imposed by the court.  (Subd. (g))

 

Seized dudleya are forfeited to the Department of Fish and Game.  (Subd. h))

Subd. (a) lists the Legislature’s finding and declarations:

 

1. Illegal poaching of the state’s native plants is a threat to the state’s biodiversity, can put certain species at risk for extinction, and can negatively impact entire ecosystem functions.

 

2. The illicit trade of live plants and animals is a multibillion dollar market responsible for the unwanted transmission of pests and diseases from one country to another.

 

3. Dudleya poaching, specifically, has increased dramatically because they have become popular in many Southeast Asian countries, where a single plant can be sold for up to one thousand dollars ($1,000) on the black market. As a result, some poaching operations have been found to be in possession of thousands of dudleya taken from the state’s forests, mountains, and coastal bluffs.

 

4. Some species of dudleya, which already face conservation challenges, such as habitat loss from development or altered wildfire regimes, are endemic to the state and their worldwide distribution is limited to a single county, island, or mountain range.

 

5. Protecting dudleya populations from poaching activity is necessary to prevent the loss of species and to promote the conservation of the state’s biodiversity.

 

Pub. Res. Code §§ 42270, 42271 (Amended), 42272, 42273 (New; AB 1276):  Single-Use Foodware Accessories:

 

The prohibition on single-use plastic straws is expanded to include a prohibition on single-use foodware accessories and standard condiments packaged for single use, unless a consumer requests the item.

 

These prohibitions apply to food facilities for on-premises dining and to third-party food delivery platforms. A food facility may ask a drive-through customer if the customer wants a single-use food accessory, but only if the accessory is necessary to eat the food or to prevent spills.

 

A food facility in an airport is permitted to ask a walk-through customer if the customer wants a single-use food accessory, but only if the accessory is necessary to eat the food or to prevent spills.

 

A third-party food delivery platform is permitted to provide consumers with the option of requesting single-use accessories or condiments from a food facility.

 

Unwrapped single-use accessories may be made available to consumers in refillable dispensers that dispense one item at a time.  Standard condiments may be made available in self-service dispensers. 

 

A “single-use food accessory” is defined as forks, knives, spoons, sporks; chopsticks; condiment cups and packets; straws; stirrers; splash sticks; and cocktail sticks.

 

“Standard condiment” is defined as relishes, spices, sauces, confections, or seasonings that require no additional preparation and that are usually used on a food item after preparation, such as ketchup, mustard, mayonnaise, soy sauce, hot sauce, salt, pepper, sugar, and sugar substitutes.

 

The punishment provisions have been moved from Pub. Res. Code § 42271 for single-use plastic straw violations to new subd. (b) of Pub. Res. Code § 42272, without change, providing that first and second violations of any of the prohibitions listed above will result in a notice of violation and that any subsequent violation is an infraction punishable by a fine of $25 for each day of violation, but not to exceed $300 annually.

 

By June 1, 2022, cities and counties are to authorize an enforcement agency to enforce these new provisions. (Pub. Res. Code § 42272(a))

 

Correctional institutions, health care facilities, residential care facilities, and public and private school cafeterias are exempted from these provisions.

 

Definitions are all included in Pub. Res. Code § 42270, referencing Health & Safety Code §§ 113757 (“consumer”), 113789 (“food facility”), 113881 (“ready-to-eat food”), and 113930.5 (“third-party food delivery platform”), and adding the following:

 

4. “Single-use” means designed to be used once and then discarded, and not designed for repeated use and sanitizing.

 

5. “Single-use foodware accessory” means all of the following single-use items provided alongside ready-to-eat food:

 

(1) Utensils, which is defined as forks, knives, spoons, and sporks.

(2) Chopsticks.

(3) Condiment cups and packets.

(4) Straws.

(5) Stirrers.

(6) Splash sticks.

(7) Cocktail sticks.

 

(f) “Standard condiment” means relishes, spices, sauces, confections, or seasonings that require no additional preparation and that are usually used on a food item after preparation, including ketchup, mustard, mayonnaise, soy sauce, hot sauce, salsa, salt, pepper, sugar, and sugar substitutes.

 

False Police Reports:

 

            Pen. Code § 118.1 (Repealed & Added; AB 750): False Statements in Police Reports:

 

This section has been rewritten, expanding it to include material false statements made to a reporting officer that are then included in a police report, now reading as follows: 

 

(a) Every peace officer who, in their capacity as a peace officer, knowingly and intentionally makes, or causes to be made, any material statement in a peace officer report, or to another peace officer and the statement is included in a peace officer report, regarding the commission or investigation of any crime, knowing the statement to be false, is guilty of filing a false report, punishable by imprisonment in the county jail for up to one year, or in the state prison for one, two, or three years.

 

(b) This section does not apply to a peace officer writing or making a peace officer report, with regard to a false statement that the peace officer included in the report that is attributed to any other person, unless the peace officer writing or making the report knows the statement to be false and is including the statement to present the statement as being true.

 

Firearms:

 

Family Code § 6216 (New; AB 1057; Effective 7/1/22):  Definition of “Firearm” for purposes of a “Domestic Violence Restraining Order.”

 

See “Domestic Violence and Gun Violence Restraining and Protective Orders,” above.

 

Family Code § 6304 (Amended; SB 320):  Information re: Firearms and Ammunition Provided to Parties to a Domestic Violence Restraining Order.

 

See “Domestic Violence and Gun Violence Restraining and Protective Orders,” above.

 

Family Code § 6322.5 (New; SB 320):  Procedures for When a Restrained Person is Alleged to Have a Firearm or Ammunition.

 

See “Domestic Violence and Gun Violence Restraining and Protective Orders,” above.

 

 

 

 

Family Code § 6389 (Amended; SB 320):  Relinquishment of Firearms and Ammunition by a Restrained Person.

 

See “Domestic Violence and Gun Violence Restraining and Protective Orders,” above.

 

Pen. Code § 11106 (Amended; AB 173; Effective 9/23/2021; and SB 715):  Firearms Transactions Information:

 

AB 173: The Department of Justice (DOJ) is required by this bill to maintain all of the information it collects about firearms and firearm transactions, and make it available to researchers with the California Firearm Violence Research Center at the University of California at Davis, for academic and policy research purposes.

 

The DOJ is further permitted to provide this information to any other nonprofit bona fide research institution accredited by the United States Department of Education or the Council for Higher Education Accreditation, for the study of the prevention of violence.

 

SB 715:  Information reported to the Department of Justice pursuant to Pen. Code § 28050 (private party firearms transactions through a firearms dealer) is added to the list of information the Attorney General is required to “keep and properly file.”

 

Pen. Code § 11108.2 (Amended; SB 715 and SB 320): Information Entered into the Department of Justice Automated Firearms System:

 

Firearms surrendered pursuant to Pen. Code § 28050 (private party firearms transaction through a firearms dealer) and firearms relinquished pursuant to Family Code § 6389 (because the person is subject to a domestic violence protective order) to the categories of firearms (e.g., firearms that are reported stolen, lost, found, recovered, held for safekeeping) are added to those that a law enforcement agency is required to enter into the “Department of Justice Automated Firearms System.”

 

Pen. Code § 11108.3 (Amended; AB 1191): Firearms Information Analysis: 

 

The Department of Justice (DOJ), on an ongoing basis, is required to analyze firearm information collected pursuant to this section for patterns and trends relating to recovered firearms that have been illegally possessed, used in a crime, or suspected to have been used in a crime, including the leading sources and origins of the firearms.

 

DOJ is further required, by July 1, 2023 and every year thereafter, to prepare and submit a report to the Legislature summarizing the above analysis. This report is to include the total number of firearms recovered in the state; the number of firearms recovered, broken down by county and by city; the number of firearms recovered broken down by the firearms dealer where the most recent sale or transfer of the firearm occurred; the number of firearms broken down by manufacturer; the total number of unserialized firearms recovered; and the number of unserialized firearms recovered broken down by county and by city.

 

The above report is to be made available to the public.

 

Note:  This section continues to provide that a law enforcement agency may report to DOJ all available information necessary to identify and trace the history of recovered firearms that were illegally possessed, used in a crime, or suspected to have been used in a crime.

 

Pen. Code § 13202 (Amended; AB 173):  Firearm Violence Research:

 

The California Firearm Violence Research Center at the University of California at Davis is added to the entities that are authorized to receive criminal offender record information for its research.

 

Pen. Code § 16520 (Amended, Effective 7/1/2022; AB 1057):  Firearms, for Purposes of a Gun Violence Restraining Order:

 

See “Domestic Violence and Gun Violence Restraining and Protective Orders,” above.

 

Pen. Code § 16685 (New; SB 715):  Hunting Licenses:

 

For purposes of Part 6 of the Penal Code (Pen. Code §§16000– 34370), a valid and unexpired hunting license is defined as a hunting license issued by the Department of Fish and Wildlife pursuant to Fish & Game Code §§ 3031–3040, for which the time period authorized for the taking of birds or mammals has commenced but has not expired.

 

Pen. Code § 18122 (New; SB 538): Electronic Filing of Gun Violence Restraining Orders:

 

See “Domestic Violence and Gun Violence Restraining and Protective Orders,” above.

 

Pen. Code § 18123 (New; SB 538):  Remote Hearings on Gun Violence Restraining Orders:

 

See “Domestic Violence and Gun Violence Restraining and Protective Orders,” above.

 

Pen. Code § 25555 (Amended; SB 320): Transportation of a Firearm For the Purpose of Relinquishing the Firearm By a Person Subject to a Domestic Violence Restraining Order:

 

See “Domestic Violence and Gun Violence Restraining and Protective Orders,” above.

 

Pen. Code § 26379 (Amended; SB 320):  Openly Carrying a Firearm For the Purpose of Relinquishing the Firearm By a Person Subject to a Domestic Violence Protective Order:

 

See “Domestic Violence and Gun Violence Restraining and Protective Orders,” above.

 

Pen. Code § 26405 (Amended; SB 320):  Carrying An Unloaded Firearm That Is Not a Handgun On One’s Person By a Person Subject to a Domestic Violence Protective Order:

 

See “Domestic Violence and Gun Violence Restraining and Protective Orders,” above.

 

Pen. Code § 26537 (New; SB 715):  The Lawful Sale, Delivery, or Transfer of a Firearm:

 

Pen. Code § 26500 (the misdemeanor crime of selling, leasing, or transferring a firearm without a license) does not apply to the sale, delivery, or transfer of a firearm under either of these circumstances:

 

1. The transaction is made by a licensed ammunition manufacturer to a dealer or wholesaler; or

 

2. The transaction is done between or to a licensed ammunition manufacturer, where the firearm is to be used in the course and scope of the licensed activities.

 

Pen. Code § 26540 (Amended; SB 320):  The Sale, Delivery, or Transfer of a Firearm to a Dealer In Order to Comply With a Domestic Violence Protective Order:

 

See “Domestic Violence and Gun Violence Restraining and Protective Orders,” above.

 

Pen. Code § 27505 (Amended; SB 715): Loaning or Transferring a Firearm to a Minor:

 

The amendment eliminates, expands, and adds exceptions to the crime of loaning or transferring a firearm to a minor. Two exceptions are eliminated:

 

1. The transfer or loan of a firearm other than a handgun by a grandparent with the permission of the minor’s parent or guardian; and

 

2. The loan of a firearm other than a handgun to a minor with the express permission of the parent or guardian, for no more than 30 days, and if the loan is for a lawful purpose.

 

The loan of a firearm by a parent or legal guardian to a minor for the purpose of engaging in a recreational sport (e.g., competitive shooting, hunting) or hunting education, where the duration of the loan does not exceed the amount of time that is reasonably necessary to engage in the sport, is retained and expanded to all firearms (i.e., rifles and handguns) and to cover “hunting education”  

 

The exception for the loan of a firearm to a minor by a person who is not the minor’s parent or guardian is expanded from handguns only to also include semiautomatic center fire rifles.

 

Two new exceptions are added:

 

1. The loan of a firearm other than a semiautomatic center fire rifle or a handgun to a minor who is 16 years of age or older, by a person who is not the minor’s parent or legal guardian, if all of the following apply:

 

a. The loan is with the express permission of the parent or guardian;

b. The loan is for the purpose of engaging in a recreational sport or hunting education;

c. The duration of the loan does not exceed the amount of time that is reasonably necessary to engage in the sport or education; and

d. The maximum duration of the loan is 5 days, unless the parent or guardian accompanies the minor or provides written consent, in which case the maximum duration is 10 days.

 

2. The loan of a firearm other than a semiautomatic center fire rifle or a handgun to a minor under 16 years of age by a person who is not the minor’s parent or guardian if all of the following apply:

 

a. The loan is with the express permission of the parent or guardian;

b. The loan is for the purpose of engaging in a recreational sport or hunting education;

c. The duration of the loan does not exceed the amount of time that is reasonably necessary to engage in the sport or education;

d. The minor is accompanied at all times by a responsible adult; and

e. The maximum duration of the loan is 5 days, unless the parent or guardian accompanies the minor or provides written consent, in which case the maximum duration is 10 days.

 

Pen. Code § 27575 (New; SB 264):  The Sale of Firearms, Firearm Precursor Part, or Ammunition, at the Orange County Fair or the City of Costa Mesa:

 

The sale of a firearm, firearm precursor part, or ammunition on the property of, or in buildings on, the Orange County Fair and Event Center, or in the County of Orange, or in the City of Costa Mesa, is prohibited.

 

This prohibition does not apply to a gun buyback event held by a law enforcement agency; the sale of a firearm by a public administrator, public conservator, or public guardian within the course of their duties; the sale of a firearm, precursor part, or ammunition that occurs pursuant to a contract entered into before January 1, 2022; or to the purchase of ammunition by a law enforcement agency.

 

Pen. Code § 27945 (Repealed & Added; SB 715):  Exceptions to the Transfer of Firearms Through a Licensed Firearms Dealer:

 

The list of exceptions that applied to Pen. Code § 27545 (which requires that the sale, loan, or transfer of a firearm be through a licensed firearms dealer when neither party holds a dealer’s license) is repealed and reenacted to provide that Pen. Code § 27545 does not apply to the loan of a firearm to a minor if it is done in compliance with the exemptions set forth in Pen. Code § 27505 (e.g., firearm transfers from a parent to a minor, or from a non-parent to a minor, where certain conditions are met; see above.)

 

Pen. Code § 27963 (New; SB 715) Exception to the Transfer of Firearms Through a Licensed Firearms Dealer; i.e., When To Be Used In the Course and Scope of Licensed Activities:

 

Provides that Penal Code § 27545 (which requires that the sale, loan, or transfer of a firearm be through a licensed firearms dealer when neither party holds a dealer’s license) does not apply to the sale, loan, or transfer of a firearm between or to licensed ammunition manufacturers where the firearm is to be used in the course and scope of licensed activities.

 

Pen. Code § 28050 (Amended; SB 715):  Procedures For Transferring Firearms Through a Licensed Firearms Dealer:

 

The procedures are changed for situations where a firearms dealer is helping with the sale, loan, or transfer of a firearm between parties who are not licensed firearms dealers, and after the seller or transferor delivers the firearm to the dealer, it is discovered that the dealer cannot legally deliver the firearm to the purchaser/transferee and cannot legally return it to the seller/transferor.

 

Until July 1, 2024, it is required that the dealer deliver the firearm to the sheriff of the county or the chief of police, who shall then dispose of the firearm.

 

Beginning July 1, 2024, the dealer must retain possession of the firearm for up to 45 days if the seller so requests, so that arrangements can be made by the seller to designate a person to take possession of the firearm. If the designated person completes an application to purchase, the dealer can then process the transaction. However, if no person is designated or if the firearm cannot be delivered to the designated person, the dealer must deliver the firearm to the sheriff of the county or the chief of police, who shall then dispose of the firearm.

 

A dealer who retains possession of a firearm at the request of a seller/transferor who is arranging for a designated person is required to notify the Department of Justice (DOJ) within 72 hours. The dealer is also required to notify DOJ when a firearm is delivered to a law enforcement agency.

 

Pen. Code § 28055 (Amended; SB 715):  Fees for Storage of a Firearm:

 

A dealer is authorized to charge the seller/transferor a fee of up to $10 per firearm for the temporary storage while arrangements are being made for a designated person to take possession of the firearm.

 

Pen. Code § 28100 (Amended; SB 715):  Delivery of a Firearm to Law Enforcement:

 

The delivery of a firearm by a dealer to a law enforcement agency as described in the various sections above is added to the list of transactions for which a dealer is not required to keep a register or record of electronic or telephonic transfer.

 

Pen. Code §§ 28210 & 28215 (Amended; SB 715):  Inspection of Hunting Licenses:

 

It is required that a salesperson, when selling or transferring a firearm to person under age 21 pursuant to subd. (b) of Pen. Code § 27510, to visually inspect the hunting license to confirm it is valid and not expired, and to record the document number, GO ID, and valid dates.

 

Note:  Pen. Code § 27510(b) permits a person under age 21 but at least 18 years of age to purchase, receive, or possess a firearm that is not a handgun or semiautomatic centerfire rifle, if he or she has a valid and unexpired hunting license issued by the Department of Fish & Wildlife.

 

If the dealer or salesperson, upon a visual inspection, cannot verify that a hunting license is valid and not expired, the firearm cannot be delivered

 

 

Pen. Code § 28220 (Amended; SB 715):  Denial of a Purchase of a Firearm to a Person Under 21 Without a Valid Hunting Licenses:

 

Beginning July 1, 2025, for the sale or transfer of a firearm to a person under age 21 pursuant to Pen. Code § 27510(b), requires the Department of Justice (DOJ) to verify the validity of the purchaser’s hunting license with the Department of Fish & Wildlife. If DOJ cannot ascertain the validity of a hunting license, DOJ must immediately notify the firearms dealer to cancel the firearms sale, and notify the purchaser by mail.

 

Note:  New Pen. Code § 16685 defines a “valid and unexpired hunting license.” See above.

 

Pen. Code § 29610 (Amended; SB 715): Prohibition For Minors Possessing Handguns:

 

The current prohibition on a minor possessing a handgun is expanded to also prohibit possession of a semiautomatic centerfire rifle. Per subd. (c), beginning July 1, 2023, “a minor will be prohibited from possessing any firearm.”

 

New subd. (d) provides as follows: “The provisions of this section are cumulative, and shall not be construed as restricting the application of any other law. However, an act or omission punishable in different ways by different provisions of this code shall not be punished under more than one provision.”

 

Pen. Code § 29615 (Amended; SB 715): Exceptions to Pen. Code § 29610: 

 

In listing the exceptions to the section 29610 prohibition for minors to possess handguns, the following added exception is listed new subd. (e), providing:

 

The minor possesses, with the express permission of their parent or legal guardian, a firearm, other than a handgun or semiautomatic centerfire rifle, and both of the following are true:

 

(1) The minor is actively engaged in, or in direct transit to or from, a lawful, recreational sport, including, but not limited to, competitive shooting, or an agricultural, ranching, or hunting activity or hunting education, the nature of which involves the use of a firearm; and

 

(2) The minor is 16 years of age or older or is accompanied by a responsible adult at all times while the minor is possessing the firearm.

 

 

 

 

Pen. Code § 29700 (Amended; SB 715):  Punishments for Violations of the Above:

 

Subd. (a)(3) is amended to provide that a minor in violation of the above is to be punished “(b)y imprisonment pursuant to subdivision (h) of Section 1170 or in a county jail if one of the following applies:

 

(1) The minor has been found guilty previously of violating this chapter.

 

(2) The minor has been found guilty previously of an offense specified in Section 29905, 32625, or 33410, or an offense specified in any provision listed in Section 16590 (or, as amended)

 

(3) The minor has been found guilty of possessing a handgun in violation of Section 29610.

 

Notes: 

 

Pen. Code § 29905 list 28 different “violent felonies.”

 

Pen. Code § 32625 lists various Machine Gun offenses.

 

Pen. Code § 33410; Possession of a Silencer.

 

Pen. Code § 29750 (Amended; SB 715):  Possession of a Firearm and Ammunition by a Minor for Self-Defense of Defense of Others:

 

In the addition of new subd. (b) to this statute, the Legislature notes that: “In enacting the act that adds this subdivision, it is not the intent of the Legislature to expand or narrow the application of existing statutory and judicial authority as to the rights of minors to be loaned or to possess live ammunition or a firearm for the purpose of self-defense or the defense of others.”

 

Pen. Code § 30625 (Amended; AB 141):  Possession of Assault Weapons and .50 BMG Rifles by the Department of Cannabis Control:

 

The Department of Cannabis Control is added to the long list of law enforcement agencies that may legally purchase, import, or possess an assault weapon or a .50 BMG rifle and not be in violation of Pen. Code §§ 30600 or 30610 (prohibition on .50 BMG rifles) or Pen. Code § 30605 (prohibition on assault weapons).

 

Pen. Code § 31833 (New; SB 715):  Exceptions for Minors to the Crime of Purchasing of a Firearm Without a Valid Firearm Safety Certificate:

 

Two new exceptions to Pen. Code § 31615 (the misdemeanor crime of purchasing or receiving a firearm, except an antique firearm, without a valid firearm safety certificate; or, selling delivering, loaning, or transferring a non-antique firearm to a person who does not have a valid firearm safety certificate.) are added:

 

1. The loan of a firearm that is not a handgun or semiautomatic centerfire rifle to a minor who complies with the conditions set forth in Pen. Code § 27505(b)(4) (i.e., specifying that the minor is at least age 16, has parental permission, the purpose is to engage in a lawful recreational activity or hunting education, the duration of the loan does not exceed the amount of time that is reasonably necessary to engage in the sport, and in no case can the loan be for longer than 10 days); and

 

2. The loan of a firearm that is not a handgun or semiautomatic centerfire rifle to a minor who complies with the conditions set forth in Pen. Code § 27505(b)(5) (i.e., specifying that the minor is under age 16, has parental permission, the purpose is to engage in a lawful recreational activity or hunting education, the minor is accompanied at all times by a responsible adult, and the duration of the loan does not exceed 10 days.)

 

Pen. Code § 31834 (New; SB 715):  Exceptions for Importers and Manufacturers of Ammunition to the Crime of Purchasing of a Firearm Without a Valid Firearm Safety Certificate:

 

This section adds another exception to Pen. Code § 31615 (the misdemeanor crime of purchasing or receiving a firearm, except an antique firearm, without a valid firearm safety certificate; or, selling delivering, loaning, or transferring a non-antique firearm to a person who does not have a valid firearm safety certificate.); i.e., that it does not apply to the sale, delivery, or transfer of a firearm between or to importers and manufacturers of ammunition who are licensed to engage in those businesses, and the firearm is to be used in the course and scope of the licensed activities.

 

Pen. Code § 32000 (Amended, AB 141; Effective 7/12/2021; and Amended; SB 715):  Department of Cannabis Control’s Purchase of Unsafe Handguns:

 

AB 141 adds the Department of Cannabis Control to the long list of law enforcement agencies that are authorized to purchase unsafe handguns for use as service weapons by their sworn members if those members have completed a firearms training course, and complete a live-fire qualification every six months. SB 715 makes a technical correction to a cross-reference.

 

Wel. & Insti. Code § 8106 (New; AB 173; Effective 9/23/2021):  Mentally Ill Individuals, Firearms, and Research Materials:

 

Data reported to the Department of Justice (DOJ) pursuant to Wel. & Insti. Code §§ 8100–8108 (which pertain to the possession and purchase of firearms and deadly weapons by mentally ill persons) is required to be made available to researchers at the California Firearm Violence Research Center at the University of California at Davis. DOJ has discretion to provide the data to any other nonprofit bona fide research institution accredited by the United States Department of Education or the Council for Higher Education Accreditation, for the study of the prevention of violence.

 

Material identifying individuals shall only be provided for research and statistical activities and shall not be revealed or used for other purposes. Research reports or publications are prohibited from identifying specific individuals. DOJ is authorized to bill researchers for the reasonable costs of processing the data.

 

Gang Cases:

 

Pen. Code § 186.22 (Amended; AB 333): Participating in Criminal Street Gang Activity:

 

The statute on the felony offense of Participating in Criminal Street Gang Activity has substantially been amended as follows:

 

A “pattern of criminal gang activity” is redefined as follows:

 

Subd. (e)(1) (Amended):  “(T)he commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter, and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offense is more than reputational.”

 

The following offenses have been deleted from those that qualify as establishing a “Pattern of Criminal Gang Activity:”

 

1. Looting (Pen. Code § 463)

2. Felony vandalism (Pen. Code § 594(b)(1))

3. Felony theft of access card or account information (Pen. Code § 484e)

4. Counterfeiting, designing, using, or attempting to use an access card (Pen. Code § 484f)

5. Felony fraudulent use of an access card or account information (Pen. Code § 484g)

6. Unlawful use of personal identifying information to obtain credit, goods, services, or medical information (Pen. Code § 530.5)

7. Wrongfully obtaining Department of Motor Vehicles documentation (Pen. Code § 529.7).

 

Subd. (e)(2) (New):  The currently charged offense cannot be used to establish the pattern of criminal gang activity.

 

Subd. (f) (Amended):  Definition of a “Criminal Street Gang:”  “(A)n ongoing organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e), having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.”

 

Subd. (g) (New):  As used in this chapter, to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

 

Pen. Code § 1109 (New; AB 333):  Separate Trial Phases for Gang Enhancement Charges:

 

(a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows:

 

(1) The question of the defendant’s guilt of the underlying offense shall be first determined.

 

(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence.

 

(b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22.

 

Note:  Pen. Code § 1170 (Amended), dealing primarily with sentencing rules (thus not covered in this Update), has been substantially rewritten pursuant to AB 124, AB 1540, and SB 567, and includes references to the bifurcated trial procedures for gang enhancements.  (See Pen. Code § 1170(b), under “Courtroom Trial Procedures,” above.)

 

Hate Crimes:

 

Gov’t. Code §§ 8010, 8010.5 and 8011 (New; AB 1126); Commission on the State of Hate:

 

The Commission on the State of Hate is to be established—once funds are appropriated and nine members are appointed—with the following responsibilities:

 

1. To provide resources and assistance to the Department of Justice, the Attorney General, law enforcement agencies, and the public on the state of hate, and keep them informed of emerging trends in hate-related crimes;
2. To engage in fact finding, data collection, and the production of annual reports on the state of hate and hate-related crimes;
3. To collaborate with subject-matter experts in the fields of hate and public safety to gain a deeper understanding in order to monitor and assess trends in hate-related crimes; and  
4. To advise the Legislature, the Governor, and state agencies on policy recommendations.

 

Note:  I included this new legislation in this outline for two reasons. First, “hate crimes” are a serious problem in today’s society and not to be taken lightly.  And secondly, you should probably know that when someone contacts you, telling you that he or she is from the “State of Hate” Commission, that person is not yanking your chain.

 

Pen. Code § 422.87 (Amended; AB 57): Religion-Bias Hate Crimes: 

 

“Religion-bias hate crimes” is added to the list of what must be included when a law enforcement agency updates an existing hate crimes policy or adopts a new hate crimes policy. The policy must instruct officers to consider whether there were targeted attacks on, or biased references to, symbols of importance to a particular religion, or articles considered of spiritual significance in a particular religion.

 

Examples of symbols and articles include, but are not limited to: Statues of Buddha (Buddhism); crosses (Christianity); forehead markings, Aum/Om symbols, and images of deities known as murtis (Hinduism); hijabs (Islam); stars of David, menorahs, and yarmulke (Judaism); and turbans, head coverings, and unshorn hair (Sikhism).

 

Pen. Code § 13519.6 (Amended; AB 57):  Hate Crimes Training:

 

The Commission on Peace Officer Standards and Training (POST), when developing guidelines and a course of instruction on hate crimes, is to consult with subject-matter experts such as law enforcement agencies, civil rights groups, academic experts, and the Department of Justice.

 

Subject to an appropriation of funds for this purpose, POST is to incorporate the November 2017 hate crimes video course, or any successor video, into the basic course curriculum, and make the video course available to stream via the learning portal.

 

Every peace officer is required to complete the November 2017 video course within one year of POST making it available to stream. POST is required to develop and periodically update an interactive course of instruction and training on hate crimes for in-service peace officers and make the course available via the learning portal.

 

Peace officers are to take the November 2017 video course or its successor video course, every six years.

 

Human Trafficking:

 

Pen. Code § 236.14 (Amended; AB 262):  Vacatur Relief:

 

For a person who was arrested or convicted of a non-violent offense while he or she was a victim of human trafficking, several changes have been made relevant to vacatur relief for that person:

 

1. Fines imposed as a result of the conviction that is the subject of a petition for relief must be stayed while the vacatur petition is pending.

 

2. The agencies that are ordered to seal and destroy records when a court grants vacatur relief (e.g., the arresting agency, the agency that maintains records related to the underlying offense, a probation department or parole authority, and/or the Department of Justice (DOJ)), are required to seal and destroy those records much faster; i.e., within one year of the date of arrest or within 90 days after the court order, whichever occurs later.

 

3. The court is required to provide the petitioner with a certified copy of the order for the sealing and destruction of arrest records. The court is also required to provide the petitioner and petitioner’s attorney a copy of the form the court submits to any agency related to the sealing and destruction of arrest records.

 

4. DOJ is required to notify the petitioner and petitioner’s attorney that it has complied with the order to seal arrest records.

 

5. Instead of requiring that a petition for relief may be heard “at any time” (instead of “within a reasonable time”) after the petitioner has ceased to be a victim of human trafficking.  Also, the right to petition for relief does not expire with the passage of time.

 

6. A court is prohibited from refusing to hear a petition that is properly made merely the petitioner still owes fines and fees, or because the petitioner failed to meet the conditions of probation.

 

7. If the petition is not opposed, the petitioner may appear at all hearings by counsel. If the petition is opposed, the petitioner must appear in person unless the court finds that there is a compelling reason why the petitioner cannot attend the hearing, in which case the petitioner may appear by telephone, videoconference, or other electronic means.

 

Note:  “Vacatur” is Latin for “it is vacated.” Legally, “vacatur” refers to a rule or order that sets aside a judgment or annuls a proceeding.

 

Pen. Code § 236.15 (New; AB 124):  Procedures for Vacatur Relief:

 

(a) If a person was arrested for or convicted of any nonviolent offense committed while the person was a victim of intimate partner violence or sexual violence, the person may petition the court for vacatur relief of their convictions and arrests under this section. The petitioner shall establish, by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of intimate partner violence or sexual violence.

 

(b) The petition for relief shall be submitted under penalty of perjury and shall describe all of the available grounds and evidence that the petitioner was a victim of intimate partner violence or sexual violence and the arrest or conviction of a nonviolent offense was the direct result of being a victim of intimate partner violence or sexual violence.

 

(c) The petition for relief and supporting documentation shall be served on the state or local prosecutorial agency that obtained the conviction for which vacatur is sought or with jurisdiction over charging decisions with regard to the arrest. The state or local prosecutorial agency shall have 45 days from the date of receipt of service to respond to the petition for relief.

 

(d) If opposition to the petition is not filed by the applicable state or local prosecutorial agency, the court shall deem the petition unopposed and may grant the petition.

 

(e) The court may, with the agreement of the petitioner and all of the involved state or local prosecutorial agencies, consolidate into one hearing a petition with multiple convictions from different jurisdictions.

 

(f) If the petition is opposed or if the court otherwise deems it necessary, the court shall schedule a hearing on the petition. The hearing may consist of the following:

 

(1) Testimony by the petitioner, which may be required in support of the petition.

(2) Evidence and supporting documentation in support of the petition.

(3) Opposition evidence presented by any of the involved state or local prosecutorial agencies that obtained the conviction.

 

(g) After considering the totality of the evidence presented, the court may vacate the conviction and expunge the arrests and issue an order if it finds all of the following:

 

(1) That the petitioner was a victim of intimate partner violence or sexual violence at the time the nonviolent offense was committed.

(2) The commission of the crime was a direct result of being a victim of intimate partner violence or sexual violence.

(3) The victim is engaged in a good faith effort to distance themselves from the perpetrator of the harm.

(4) It is in the best interest of the petitioner and in the interests of justice.

 

(h) In issuing an order of vacatur for the convictions, an order shall do the following:

 

(1) Set forth a finding that the petitioner was a victim of intimate partner violence or sexual violence when they committed the offense.

(2) Set aside the verdict of guilty or the adjudication and dismiss the accusation or information against the petitioner.

(3) Notify the Department of Justice that the petitioner was a victim of intimate partner violence or sexual violence when they committed the crime and of the relief that has been ordered.

 

(i) Notwithstanding this section, a petitioner shall not be relieved of any financial restitution order that directly benefits the victim of a nonviolent offense, unless it has already been paid.

 

(j) A person who was arrested as, or found to be, a person described in Section 602 of the Welfare and Institutions Code because they committed a nonviolent offense while they were a victim of intimate partner violence or sexual violence, may petition the court for relief under this section. If the petitioner establishes that the arrest or adjudication was the direct result of being a victim of intimate partner violence or sexual violence the petitioner is entitled to a rebuttable presumption that the requirements for relief have been met.

 

(k) If the court issues an order as described in subdivision (a) or (j), the court shall also order the law enforcement agency having jurisdiction over the offense, the Department of Justice, and any law enforcement agency that arrested the petitioner or participated in the arrest of the petitioner to seal their records of the arrest and the court order to seal and destroy the records within three years from the date of the arrest, or within one year after the court order is granted, whichever occurs later, and thereafter to destroy their records of the arrest and the court order to seal and destroy those records. The court shall provide the petitioner a copy of any court order concerning the destruction of the arrest records.

 

(l) A petition pursuant to this section shall be made and heard within a reasonable time after the person has ceased to be a victim of intimate partner violence or sexual violence, or within a reasonable time after the petitioner has sought services for being a victim of intimate partner violence or sexual violence, whichever occurs later, subject to reasonable concerns for the safety of the petitioner, family members of the petitioner, or other victims of intimate partner violence or sexual violence who may be jeopardized by the bringing of the application or for other reasons consistent with the purposes of this section.

 

(m) For the purposes of this section, official documentation of a petitioner’s status as a victim of intimate partner violence or sexual violence may be introduced as evidence that their participation in the offense was the result of their status as a victim of intimate partner violence or sexual violence. For the purposes of this subdivision, “official documentation” means any documentation issued by a federal, state, or local agency that tends to show the petitioner’s status as a victim of intimate partner violence or sexual violence. Official documentation shall not be required for the issuance of an order described in subdivision (a).

 

(n) A petitioner, or their attorney, may be excused from appearing in person at a hearing for relief pursuant to this section only if the court finds a compelling reason why the petitioner cannot attend the hearing, in which case the petitioner may appear telephonically, via videoconference, or by other electronic means established by the court.

 

(o) Notwithstanding any other law, a petitioner who has obtained an order pursuant to this section may lawfully deny or refuse to acknowledge an arrest, conviction, or adjudication that is set aside pursuant to the order.

 

(p) Notwithstanding any other law, the records of the arrest, conviction, or adjudication shall not be distributed to any state licensing board.

 

(q) The record of a proceeding related to a petition pursuant to this section that is accessible by the public shall not disclose the petitioner’s full name.

 

(r) A court that grants relief pursuant to this section may take additional action as appropriate under the circumstances to carry out the purposes of this section.

 

(s) If the court denies the application because the evidence is insufficient to establish grounds for vacatur, the denial may be without prejudice. The court may state the reasons for its denial in writing or on the record that is memorialized by transcription, audio tape, or video tape, and if those reasons are based on curable deficiencies in the application, allow the applicant a reasonable time period to cure the deficiencies upon which the court based the denial.

 

(t) For the purposes of this section, the following terms apply:

 

1. “Nonviolent offense” means any offense not listed in subdivision (c) of Section 667.5 (i.e., prior prison term enhancements for violent felony convictions).

 

2. “Vacate” means that the arrest and any adjudications or convictions suffered by the petitioner are deemed not to have occurred and that all records in the case are sealed and destroyed pursuant to this section. The court shall provide the petitioner with a copy of the orders described in subdivisions (a), (j), and (k), as applicable, and inform the petitioner that they may thereafter state that they were not arrested for the charge, or adjudicated or convicted of the charge, that was vacated.

 

Pen. Code § 236.23 (Amended; AB 124):  Affirmative Defenses for Victims of Human Trafficking:

 

The affirmative defense of being coerced to commit an offense as a direct result of being a human trafficking victim at the time of the offense and the person had a reasonable fear of harm has been expanded to include when the defendant is alleged to have committed a “serious felony.”  (Pen. Code § 1192.7(c)).  

 

Note:  The only remaining disqualifying crime category is “violent felonies,” pursuant to Pen. Code § 667.5(c)

 

The list of records that may be presented to establish the affirmative defense of coercion has been expanded to include information contained in governmental agency reports that are relevant to the identification of a victim of human trafficking by a peace officer pursuant to Pen. Code § 236.2, even if a peace officer did not make an identification pursuant to Pen. Code § 236.2.

 

Note:  Pen. Code § 236.2 requires a law enforcement agency to use due diligence to identify victims of human trafficking. It requires a peace officer who comes into contact with a person who has been deprived of personal liberty, a minor who has engaged in a commercial sex act, a person suspected of violating Pen. Code § 647(a) (lewd act in public) or Pen. Code § 647(b) (prostitution), or a victim of domestic violence or sexual assault, to consider whether specified indicators of human trafficking are present, such as trauma, fatigue, injury, being afraid to talk, being withdrawn, living and working in one place, owing a debt to an employer, and security measures being used to control who has contact with the person.

 

Pen. Code § 236.24 (New; AB 124): Affirmative Defenses for Victims of Human Trafficking:

 

(a) In addition to any other affirmative defense, it is a defense to a charge of a crime that the person was coerced to commit the offense as a direct result of being a victim of intimate partner violence or sexual violence at the time of the offense and had a reasonable fear of harm. This defense does not apply to a violent felony, as defined in subdivision (c) of Section 667.5.

 

(b) A defendant asserting the affirmative defense specified in subdivision (a) has the burden of establishing the affirmative defense by a preponderance of the evidence.

 

(c) Certified records of a federal, state, tribal, or local court or governmental agency documenting the person’s status as a victim of intimate partner violence or sexual violence at the time of the offense, including identification of a victim of intimate partner violence or sexual violence by a peace officer and certified records of approval notices or enforcement certifications generated from federal immigration proceedings, may be presented to establish an affirmative defense pursuant to this section. Information contained in governmental agency reports, which is relevant to the identification of a victim of intimate partner violence or sexual violence, may be presented pursuant to this subdivision even if the defendant was not then identified as a victim of intimate partner violence or sexual violence.

 

(d) The affirmative defense may be asserted at any time before the entry of a plea of guilty or nolo contendere or admission to the truth of the charges and before the conclusion of any trial for the offense. If asserted before the preliminary hearing held in a case, the affirmative defense shall, upon request by the defendant, be determined at the preliminary hearing.

 

(e) If the defendant prevails on the affirmative defense provided under subdivision (a), the defendant is entitled to all of the following relief:

 

(1)

 

1. The court shall order that all records in the case be sealed pursuant to Section 851.86.

 

2. Records that have been sealed pursuant to this paragraph may be accessed, inspected, or utilized by law enforcement for subsequent investigatory purposes involving persons other than the defendant.

 

(2) The person shall be released from all penalties and disabilities resulting from the charge, and all actions and proceedings by law enforcement personnel, courts, or other government employees that led to the charge shall be deemed not to have occurred.

 

(3)

 

(A) The person may in all circumstances state that they have never been arrested for, or charged with, the crime that is the subject of the charge or conviction, including without limitation in response to questions on employment, housing, financial aid, or loan applications.

 

(B) The person may not be denied rights or benefits, including, without limitation, employment, housing, financial aid, welfare, or a loan or other financial accommodation, based on the arrest or charge or their failure or refusal to disclose the existence of or information concerning those events.

 

(C) The person may not be thereafter charged or convicted of perjury or otherwise of giving a false statement by reason of having failed to disclose or acknowledge the existence of the charge, or any arrest, indictment, trial, or other proceedings related thereto.

 

(f) If, in a proceeding pursuant to Section 602 of the Welfare and Institutions Code, the juvenile court finds that the offense on which the proceeding is based was committed as a direct result of the minor being a victim of intimate partner violence or sexual violence, and the affirmative defense established in subdivision (a) is established by a preponderance of the evidence, the court shall dismiss the proceeding and order the relief prescribed in Section 786 of the Welfare and Institutions Code.

 

Law Enforcement’s Closure of Listed Areas:

 

Pen. Code § 409.5 (Amended; AB 1103): Closed Disaster Areas and Persons with a Livestock Pass Identification Document:

 

A cross-reference is added in this section (the statute that authorizes law enforcement to close areas when a menace to public health or safety is caused by a natural disaster or other type of disaster) to Food & Ag. Code § 2350 (New) which provides that a person holding a ”valid livestock pass identification Document” shall not be prevented from entering areas closed during a disaster, unless a peace officer finds that the disaster is of such a nature that it would be unsafe to enter or that the person would interfere with the disaster response.

 

Note:  Food & Ag. Code § 2350 (New; AB 1103), subd. (b)(1), specifically provides that “(u)pon the approval of a county board of supervisors, a county agricultural commissioner, or other agency designated by the county board of supervisors, is authorized to establish within that county a livestock pass program for the purpose of issuing identification documents granting any qualifying livestock producer, or a managerial employee of the qualifying livestock producer, access to the qualifying livestock producer’s ranch property during or following a flood, storm, fire, earthquake, or other disaster.

 

Pen. Code § 409.7 (New; SB 98): Closed Demonstration, March, Protest, or Rally Areas and Members of the Press:

 

Allows members of the press (i.e., “a duly authorized representative of any news service, online news service, newspaper, or radio or television station or network”) to enter areas that have been closed by law enforcement due to a “demonstration, march, protest, or rally,” while prohibiting members of the press from being cited for the failure to disperse, for a curfew violation, or for a violation of Pen. Code § 148(a)(1) (resisting, delaying, or obstructing a peace officer).

 

A peace officer who closes the area surrounding a command post, or establishes a police line or rolling closure at a demonstration, march, protest, or rally where people are engaging in activity protected by the First Amendment, may not prevent a duly authorized representative of any news service, online news service, newspaper, or radio or television station or network from entering the closed area.

 

Law enforcement officers are prohibited from intentionally assaulting, interfering with, or obstructing an authorized news representative who is gathering, receiving, or processing information for communication to the public.

 

The section also specifically provides that “this section does not prevent a law enforcement officer from enforcing other applicable laws if the person is engaged in activity that is unlawful,” and “does not impose, and shall not be used as the basis for, criminal liability.”  (Subds. (b) and (c))

 

Law Enforcement & Military Equipment: 

 

Gov’t. Code §§ 7070, 7071, 7072, 7073, 7074 & 7075 (New; AB 481): Acquisition and Use of Military Equipment by Local Law Enforcement:

 

New Chapter 12.8 in Division 7 of Title 1 of the Government Code, entitled “Funding, Acquisition and Use of Military Equipment,” has been created, requiring all law enforcement agencies to obtain approval from a local governing body before requesting, acquiring, seeking funds for, or using, military equipment. Such approval is to be in the form of an ordinance that adopts a military equipment use policy at an open meeting of the governing body; e.g., a city or town council or board of supervisors.

 

A “law enforcement agency” is defined as police departments (including police departments of transit agencies, school districts, University of California, California State University, and community colleges), sheriff’s departments, district attorney offices, and county probation departments. (State agencies are exempt from these requirements, other than the requirement that it create a military equipment use policy before requesting, acquiring, seeking funds for, or using, military equipment.)

 

A law enforcement agency that wants to continue using military equipment already acquired before January 1, 2022, must begin the governing body approval process by May 1, 2022, and must stop using its military equipment if it does not get approval within 180 days of its request to the governing body.

 

In order to seek approval for military equipment, a law enforcement agency must submit a proposed military equipment use policy, which must include the following:   

 

1. A description of the military equipment, its capabilities, and lifespan;
2. The purposes and authorized uses of the equipment;
3. The cost;
4. The legal and procedural rules that govern use; and
5. The training that must be completed before an officer is allowed to use the equipment.

 

A governing body is authorized to approve a military equipment use policy only if it determines all of the following:

 

1. The military equipment is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety;
2. The proposed military equipment use policy will safeguard the public’s welfare, safety, civil rights, and civil liberties;
3. The equipment is reasonably cost effective compared to available alternatives that can achieve the same objective of officer and civilian safety; and
4. Prior military equipment use complied with the use policy that was in effect at the time, or, corrective action has been taken if prior use did not comply with the use policy.

 

A law enforcement agency that receives approval for a military equipment use policy must submit to the governing body an annual military equipment report (the statute detailing the information that must be provided in the report) for each type of military equipment approved within one year of the governing body’s approval, and annually thereafter for as long as the military equipment is in use.

 

“Military equipment” is defined as including flashbang grenades, explosive breaching tools, taser shockwave, water cannons, projectile launch platforms, firearms of .50 caliber or greater, battering rams that are explosive in nature, weaponized aircraft or vehicles, command and control vehicles, tracked armored vehicles (which use a track system instead of wheels for motion), unmanned aerial or ground vehicles, mine-resistant ambush-protected (MRAP) vehicles, and a catch-all category of “(a)ny other equipment as determined by a governing body or a state agency to require additional oversight.”

 

Law Enforcement Policies and Procedures:

 

Pen. Code § 13665 (New; AB 1475):  Use of Booking Photos on Social Media:

 

A police department or sheriff’s department is prohibited from sharing on social media, booking photos of a person arrested for a non-violent crime unless any of the following circumstances exist:

 

1. A police or sheriff’s department has determined that the suspect is a fugitive or an imminent threat to individual or public safety and releasing or disseminating the booking photo will assist in locating or apprehending the suspect, or reducing or eliminating the threat;

 

2. A judge orders the release or dissemination of the suspect’s image based on a finding that the release or dissemination is in furtherance of a legitimate law enforcement interest; or

 

3. There is an exigent circumstance that necessitates the dissemination of the suspect’s image in furtherance of an urgent and legitimate law enforcement interest.

 

If a booking photo of a person arrested for a non-violent crime is shared on social media, it must be removed within 14 days of a request from the arrestee or the arrestee’s representative, unless any of the three circumstances above exists.

 

If a booking photo of a person arrested for a crime listed in Pen. Code § 667.5(c) (i.e., violent crimes) is shared on social media, it must be removed within 14 days of a request from the arrestee or the arrestee’s representative, if the arrestee or representative can demonstrate any of the following:

 

1. The arrestee’s record has been sealed;

 

2. The arrestee’s conviction has been dismissed, expunged, pardoned, or “eradicated pursuant to law”;

 

3. The arrestee has been issued a certificate of rehabilitation;

 

4. The arrestee was found not guilty of the crime for which he or she was arrested;

 

5. The arrestee was ultimately not charged with the crime or the charges were dismissed.

 

This new section applies retroactively to any booking photo shared on social media.

 

“Non-violent crime” is defined as a crime not identified in Pen. Code § 667.5(c).

 

“Social media” has the same meaning as in Pen. Code § 632.01 except that social media does not include an Internet Web site or electronic data system developed and administered by a police or sheriff’s department.

 

Note:  Pen. Code § 632.01(a) provides that social media means an electronic service or account, or electronic content, including, but not limited to, videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet web site profiles or locations.

 

Pen. Code § 13670 (New; AB 958): Law Enforcement Gangs:

 

All law enforcement agencies are required to maintain a policy that prohibits participation in a “law enforcement gang,” making a violation of the policy grounds for termination.

 

A law enforcement agency to disclose the termination of a peace officer for participation in a law enforcement gang to any other law enforcement agency that is conducting a pre-employment background investigation of the former peace officer.

 

“Law enforcement gang” is defined as a group of peace officers within a law enforcement agency who may identify themselves by a name and may be associated with an identifying symbol, such as matching tattoos, and who engage in a pattern of on-duty behavior that intentionally violates the law or fundamental principles of professional policing, including, but not limited to, excluding, harassing, or discriminating against any individual based on a protected category under federal or state anti-discrimination laws; engaging in or promoting conduct that violates the rights of other employees or members of the public; violating agency policy; the persistent practice of unlawful detention or use of excessive force in circumstances where it is known to be unjustified; falsifying police reports; fabricating or destroying evidence; targeting persons for enforcement based solely on protected characteristics of those persons; theft; unauthorized use of alcohol or drugs on duty; unlawful or unauthorized protection of other members from disciplinary actions; and retaliation against other officers who threaten or interfere with the activities of the group.

 

Note:  See Pen. Code § 13510.8 (New; SB 2 & SB 586): “Grounds For Certification Suspension or Revocation,” under “Peace Officer Qualifications and Disqualifiers,” below.

 

Law Enforcement Use of Force:

 

Gov’t. Code § 7286 (Amended; AB 26): Law Enforcement Use of Force Policies:

 

The following is added to the list of things that a law enforcement agency’s policy on the use of force must include:

 

1. Procedures to prohibit an officer from training other officers for a period of at least three years from the date that an “abuse of force” complaint against that officer is substantiated.

 

2. A requirement that an officer who has received all required training on the requirement to intercede and fails to act, be disciplined up to and including in the same manner as the officer who committed the excessive force.

 

Note:  Existing language in this section requires an officer to intercede when he or she observes another officer “using force that is clearly beyond that which is necessary.”

 

3. A prohibition on retaliation against an officer who reports a suspected violation of a law or regulation by another officer, to a supervisor or other person at the agency that has the authority to investigate the violation.

 

The following definitions are added:

 

“Retaliation” is defined as a demotion, failure to promote, denial of access to training, denial of access to resources necessary to properly perform duties, intimidation, harassment, or threat of injury.

 

“Excessive force” is defined as a level of force that is found to have violated existing Pen Code § 835a, the requirements on the use of force in this section, or any other law or statute.

 

“Intercede” is defined as physically stopping the excessive use of force; recording the excessive force if equipped with a body-worn camera; documenting efforts to intervene or efforts to de-escalate; confronting the officer about the excessive force during the use of force; and, if the officer continues the excessive use of force, reporting to dispatch or the watch commander the offending officer’s name, unit, location, time, and situation.

 

Note:  Pen Code § 835a describes the requirement that an officer use no more than “objectively reasonable force to effect the arrest, to prevent escape, or to overcome resistance,” while defining all the relevant terms.

 

Gov’t. Code § 7286.5 (Amended; AB 490):  Unlawful Restraint by Law Enforcement Officers:

 

The section is expanded with the addition of a new subd. (a)(2), adding a prohibition on the use of “techniques or transport methods that involve a substantial risk of positional asphyxia.” 

 

“Positional asphyxia” is defined as “situating a person in a manner that compresses their airway and reduces the ability to sustain adequate breathing. This includes, without limitation, the use of any physical restraint that causes a person’s respiratory airway to be compressed or impairs the person’s breathing or respiratory capacity, including any action in which pressure or body weight is unreasonably applied against a restrained person’s neck, torso, or back, or positioning a restrained person without reasonable monitoring for signs of asphyxia.” (Subd. (b)(4))

 

Notes: 

 

On January 1, 2021, Gov’t. Code § 7286.5 first became effective via AB 1196, prohibiting a law enforcement agency from authorizing the use by its officers of either the “carotid restraint” (defined as “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) or the “choke hold” (defined as “any defensive tactic or force option in which direct pressure is applied to a person’s trachea or windpipe”).  “Positional asphyxia” would appear to come under the definition of a “choke hold.”

 

This section, even as amended, does not make it a crime to violate these rules (thus its inclusion in the Government Code instead of the Penal Code).  It merely prohibits law enforcement agencies from authorizing the use of either the carotid restraint or the choke hold, and (as amended) prohibits officers from transporting prisoners or otherwise restraining them under circumstances where their breathing is impaired.  However, the unnecessary use of either might well violate other excessive force statutes subjecting the offending officer to criminal penalties; e.g., Pen. Code §§ 147 (Inhumanity to Prisoners) and 149 (Assault by an Officer Under Color of Authority.)  (E.g., see People v. Perry (2019) 36 Cal.App.5th 444.)

 

Gov’t. Code § 12525.3 (Amended; SB 715): Officer-Involved Shootings:

 

The Attorney General’s authority to investigate officer-involved shootings that result in the death of an unarmed civilian has been expanded by adding cases in which “there is a reasonable dispute as to whether the civilian was armed.”

 

Pen. Code § 13652 (New; AB 48):  Use by Law Enforcement of Kinetic Energy Projectiles and Chemical Agents:

 

This new section limits law enforcement’s use of “kinetic energy projectiles” and chemical agents, requiring a law enforcement agency to publish on its website a summary of all instances in which a kinetic energy projectile or chemical agent is used.

 

“Kinetic energy projectile” is defined as a device designed to be launched as a projectile that may cause bodily injury and blunt force trauma, including, but not limited to, items commonly referred to as rubber bullets, plastic bullets, beanbag rounds, and foam tipped plastic rounds.

 

“Chemical agent” is defined as a chemical that can rapidly produce sensory irritation or disabling physical effects, which disappear within a short time, including, but not limited to, CN tear gas, CS gas, and items commonly referred to as pepper spray, pepper balls, and oleoresin capsicum.

 

The use of kinetic energy projectiles and chemical agents may be used only by a peace officer who has received training on their proper use for crowd control by the Commission on Peace Officer Standards and Training (POST), if the use is objectively reasonable to defend against a threat to life or serious bodily injury, or to bring an objectively dangerous and unlawful situation safely and effectively under control, and then only when the following requirements are met:

 

1. De-escalation techniques or other alternatives to force were attempted and failed;

 

2. Repeated, audible announcements are made about the intent to use kinetic energy projectiles and chemical agents, and the announcements are made in multiple languages, if appropriate;

 

3. Persons are given an objectively reasonable opportunity to disperse and leave the scene;

 

4. An objectively reasonable effort has been made to identify persons engaged in violent acts and those who are not, and projectiles and chemical agents are targeted toward those engaging in violent acts. Projectiles are prohibited from being “aimed indiscriminately into a crowd or group of persons;”

 

5. Projectiles and chemical agents are used only with the frequency, intensity, and in a manner that is proportional to the threat;

 

6. The possible incidental impact of projectiles and chemicals on bystanders, medical personnel, journalists, and other unintended targets is minimized;

 

7. An objectively reasonable effort has been made to extract individuals in distress;

 

8. Medical assistance is promptly provided, if properly trained personnel are present, when it is reasonable and safe to do so; and

 

9. If the chemical agent to be deployed is tear gas, only a commanding officer at the scene of the assembly, protest, or demonstration may authorize its use.

 

Aiming projectiles at the head, neck, or vital organs is prohibited.  Also prohibited is the use of projectiles and chemicals solely due to a curfew violation, a verbal threat, or noncompliance with a law enforcement directive.

 

This new section does not apply to any county detention facility or to any correctional facility of the Department of Corrections and Rehabilitation.

 

Pen. Code § 13652.1 (New; AB 48):  Publishing a Summary of the Use of Kinetic Energy Projectiles and Chemical Agents:

 

A law enforcement agency, within 60 days of an incident involving the use of kinetic energy projectiles or chemical agents for crowd control, is required to publish a summary of the incident on its Internet Web site. The summary may be posted as late as 90 days after the incident if the agency demonstrates just cause for the delay.

 

The summary must include a description of the assembly, protest, demonstration, or incident, including the approximate crowd size and number of officers; the type of projectile or chemical agent used; the number of rounds or quantity of agent dispersed; the number of documented injuries resulting from the projectiles or chemicals; the justification for using the projectiles or chemicals; and a description of the de-escalation tactics and other measures used to avoid the need for projectiles or chemicals. The Department of Justice is also to post on its Internet Web site a compiled list, linking each agency’s posted reports.

 

Nunchakus:

 

            Pen. Code §§ 16590 & 18010 (Amended; SB 827):  Legality of Having Nunchakus.

 

The Nunchaku (or “Nunchucks;” a martial arts weapon consisting of two sticks joined by a chain or cord) has been deleted from the list of prohibited weapons and from the list of weapons for which a district attorney, city attorney, or the Attorney General may bring an action to enjoin the manufacture of, the importation of, the offering for sale of, the giving, lending, or possession of, a specified weapon that constitutes a nuisance.

 

See also Pen. Code §§ 22010, 22015, 22090 (Repealed) & 22296 (New), conforming to the above legalization of the nunchaku.

 

Peace Officer Civil Liability:

 

Civil Code § 52.1 (Amended; SB 2):  The Bane Act and Officers’ Civil Liability:

 

New subds (n) and (o) have been added to the Bane Act, as follows:

 

(n) The state immunity provisions provided in Sections 821.6, 844.6, and 845.6 of the Government Code shall not apply to any cause of action brought against any peace officer or custodial officer . . . (as defined in the Penal Code), or directly against a public entity that employs a peace officer or custodial officer, under this section.

 

(o) Sections 825, 825.2, 825.4, and 825.6 of the Government Code, providing for indemnification of an employee or former employee of a public entity, shall apply to any cause of action brought under this section against an employee or former employee of a public entity.

 

Notes: 

 

The three statutory civil immunity provisions that have been eliminated when a civil rights action is brought against a peace officer or custodial officer, or against a public entity that employs a peace officer or custodial officer, under Civil Code § 52.1 (The Bane Act), provide as follows:

 

Gov’t. Code § 821.6: Provides that a public employee is not liable for an injury caused within the scope of employment even if he or she acts maliciously and without probable cause.

 

Gov’t. Code § 844.6: Provides that in general, a public entity is not liable for an injury proximately caused by a prisoner or an injury to a prisoner, unless the injury is proximately caused by an employee’s negligent or wrongful act or omission.

 

Gov’t. Code § 845.6:  Provides that neither a public employee nor a public entity is liable for an injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his or her custody, unless the employee knows or has reason to know that the prisoner is in need of immediate medical care and fails to take reasonable action, or, the employee is lawfully engaged in the practice of one of the healing arts and the injury is proximately caused by malpractice.

 

The four statutory civil indemnification provisions that have been added are summarized as follows:

 

Gov’t. Code § 825:  Provides for a public entity to defend an employee or former employee upon request against any claim or action against him or her for an injury arising out of an act or omission occurring within the scope of his or her employment, and to pay any civil judgment, compromise, or settlement arising out of such claim or action, except for punitive damages. 

 

Gov’t. Code § 825.2:  Provides that when an employee or former employee of a public entity pays any claim or judgment against him, or any portion thereof, that the public entity is required to pay under Section 825, he is entitled to recover the amount of such payment from the public entity, with the exceptions as noted in the section.

 

Gov’t. Code § 825.4:  Provides that except as provided in Section 825.6, if a public entity pays any claim or judgment against itself or against an employee or former employee of the public entity, or any portion thereof, for an injury arising out of an act or omission of the employee or former employee of the public entity, the employee or former employee is not liable to indemnify the public entity.

 

Gov’t. Code § 825.6:  Lists the circumstances under which the public entity may recover from the employee or former employee the amounts paid by the public entity.

 

Civil Code 52.1, known as the Tom Bane Civil Rights Act, permits individuals and entities such as district attorneys, city attorneys, and the Attorney General, to bring a civil action when a person interferes or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by another individual of rights secured by the Constitution or laws of the United States or California.

 

Gov’t. Code § 945.9 (New; AB 1455): Civil Suits Arising Out of a Sexual Assault by a Law Enforcement Officer:

 

1. A claim arising out of an alleged sexual assault by a law enforcement officer if the alleged assault occurred while the officer was employed by a law enforcement agency is exempted from all state and local government claim presentation requirements.

 

2. Notwithstanding any other law, the time for commencement of a claim seeking to recover damages arising out of an alleged sexual assault by a law enforcement officer, if the alleged sexual assault occurred on or after the plaintiff’s 18th birthday and while the officer was employed by a law enforcement agency, shall be the later of either of the following dates:

 

1. Within 10 years after the date of judgment against a law enforcement officer in a criminal case for a crime of sexual assault or a judgment against a law enforcement officer for a different crime if a crime of sexual assault was alleged and the crime for which there was a judgment against a law enforcement officer arose out of the same set of operative facts as the allegation of sexual assault in the present claim.

 

2. Within 10 years after the law enforcement officer is no longer employed by the law enforcement agency that employed the officer when the alleged sexual assault occurred.

 

3. Notwithstanding subdivision (b), a claim seeking to recover damages arising out of an alleged sexual assault by a law enforcement officer, if the alleged sexual assault occurred on or after the plaintiff’s 18th birthday and while the officer was employed by a law enforcement agency, that has not been litigated to finality or compromised by an executed written settlement agreement and that would otherwise be barred because the applicable statute of limitations, any state or local government claim presentation deadline, or any other applicable time limit has expired, is hereby revived and may be commenced if filed within either of the following periods of time:

 

1. Ten years from the date of the last act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff.

 

2. Three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff.

 

3. As used in this section, “sexual assault” means any of the crimes described in Section 243.4, 261, 262, 264.1, 286, 287, or 289, or former Section 288a, of the Penal Code, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes.

 

Peace Officer Qualifications and Disqualifiers:

 

Gov’t. Code § 1029 (Amended; SB 2):  Disqualifiers From Being a Peace Officer:

 

Several categories of persons are added to the list of those who are disqualified from holding office as a peace officer, or being employed as a peace officer.

 

1. Any person discharged from the military for committing an offense, as adjudicated by a military tribunal, which would have been a felony if committed in California.

 

2. Any person convicted of a felony, regardless of the type of sentence ordered or imposed, and regardless of whether a court later sets aside, vacates, withdraws, expunges, dismisses, or reverses the conviction, unless the person is found factually innocent.

 

3. Any person adjudicated in an administrative, military, or civil judicial process requiring not less than clear and convincing evidence, as having committed any act that is a violation of Pen Code §§ 115 (offering false or forged instruments for filing), 115.3 (altering a certified copy of an official record), 116 (altering a jury list), 116.5 (jury tampering), 117 (falsifying a jury list), any crime in Pen Code §§ 92–100 (bribery and corruption), any crime in Pen Code §§ 118–131 (perjury), any crime in Pen Code §§ 132–141 (crimes related to falsifying, destroying, or tampering with evidence; intimidating witnesses; influencing testimony; bribing witnesses; and threatening witnesses), any crime in Pen Code §§ 142–181 (crimes related to disclosing information obtained in a criminal investigation for financial gain; inhumanity to prisoners; false report of felony or misdemeanor; assault by officer under color of authority; bribing local officials; contempt of court).

 

4. Any person who has been issued a peace officer certification and has had it revoked by the Commission on Peace Officer Standards and Training (POST), or who voluntarily surrendered it, or who has been denied issuance of certification.

 

5. Any person previously employed in law enforcement whose name is listed in the National Decertification Index of the International Association of Directors of Law Enforcement Standards and Training, or any other database designated by the federal government, whose certification as a law enforcement officer in that jurisdiction was revoked for misconduct, or who, while employed as a law enforcement officer, engaged in serious misconduct that would have resulted in certification being revoked by POST if employed as a peace officer in this state.

 

Note:  Already in the statute as disqualifiers include a felony conviction; being charged with a felony and found to be mentally incompetent; being found not guilty by reason of insanity for a felony crime; and being determined to be a mentally disordered sex offender.

 

Other Requirements:

 

DOJ is required to supply POST with conviction information on current and former peace officers.

 

Department of Justice (DOJ) is required to supply POST with necessary disqualifying felony and misdemeanor conviction data for all persons known by DOJ to be current or former peace officers and POST is permitted to use this information for decertification purposes.

 

The disqualification data is required to be made available for public inspection pursuant to the California Public Records Act, including the person’s appointment, promotion, and demotion dates, as well as certification or licensing status, and the reason for the person leaving service.

 

Gov’t. Code § 1031.4 (New; AB 89): Age Limitation for Peace Officers:

 

With limited exceptions, all peace officers must be at least 21 years of age by the date of their appointment.

 

The exceptions to this age requirement are individuals who are:

 

(1) Already peace officers, or

(2) Who are in a basic police academy as of 12/31/21,

(3) Who are peace officers pursuant to Pen. Code §§ 830.1©, and

(4) Who are peace officers pursuant to 830.2(d).

 

Pen. Code § 13503 (Amended; SB 2):  POST Powers to Investigate and Audit:

 

The Commission on Peace Officer Standards and Training (POST) is now empowered to investigate and determine the fitness of any person to serve as a peace officer, and to audit any law enforcement agency that employs peace officers, without cause and at any time. 

 

Pen. Code § 13510.5 (New; SB 2):  POST’s Peace Officer Standards Accountability Division:

 

Within POST is created the new “Peace Officer Standards Accountability Division,” which is tasked with reviewing investigations conducted by law enforcement agencies and to conduct additional investigations, as necessary, into serious misconduct by peace officers that may provide grounds for suspension or revocation of a peace officer’s certification.  This new Division is also to present findings and recommendations to POST, and to bring proceedings to suspend or revoke the certification of a peace officer.

 

POST is required to establish procedures for accepting complaints from members of the public about peace officers or law enforcement agencies that may be (1) investigated by this new Division, (2) referred to a peace officer’s employing agency, or (3) referred to the Department of Justice (DOJ).

 

Pen. Code § 13509.6 (New; SB 2):  POST’s Peace Officer Standards Accountability Advisory Board:

 

The Governor is required, by January 1, 2023, to establish a nine-member “Peace Officer Standards Accountability Advisory Board” to make recommendations to POST on the decertification of peace officers. Requires Board members to complete a 40-hour decertification training course, to be developed by POST.

 

 

 

 

Pen. Code § 13510.1 (Amended; SB 2):  POST’s Certification Program:

 

POST is required to continue to establish a certification program for peace officers and specifies those described in Pen. Code §§ 830.1, 830.2 (except for those in subd. (d)), 830.3, 830.32, 830.33, and any other peace officer employed by an agency that participates in the POST program.

 

The amended statute provides that the certificate or proof of peace officer eligibility is the property of POST.

 

POST is required to assign each person who applies for or receives a certification a unique identifier that will be used to track certification status from application for certification through that person’s career as a peace officer. POST is authorized to suspend, revoke, or cancel a certification.

 

“Certification” is defined as a valid and unexpired basic certificate or proof of peace officer eligibility issued by POST.

 

An agency that employs peace officers is required to employ only those with current, valid certification, except that an agency may provisionally employ a peace officer for up to 24 months pending certification by POST as long as that officer has not previously been certified or denied certification.

 

Deputy sheriffs are required to obtain valid certification upon being reassigned from custodial duties to general law enforcement duties.

 

POST is required to issue a basic certificate to any peace officer who, on January 1, 2022, is eligible for a basic certificate but has not applied for certification.

 

Requires, by January 1, 2023, a peace officer who does not possess a basic certificate and who is not yet or will not be eligible for a basic certificate, to apply to POST for proof of peace officer eligibility.

 

Pen. Code § 13510.8 (New; SB 2 & SB 586):  Grounds for Certification Suspension or Revocation:

 

The circumstances pursuant to which peace officer certification may be suspended or revoked are listed as follows:

 

1. The officer has become ineligible to hold office as a peace officer pursuant to Gov’t. Code § 1029 (e.g., the officer is convicted of a felony or other specified crime).

 

2. The officer is terminated for cause or engaged in serious misconduct. POST is required by January 1, 2023, to adopt a definition of “serious misconduct” requiring the definition to include all of the following:

 

a. Dishonesty relating to the reporting, investigation, or prosecution of a crime, or relating to the reporting, investigation or misconduct by, a peace officer or custodial officer, including false statements, intentionally filing false reports, tampering with or destroying evidence, perjury, and tampering with body-worn camera data;

 

b. Abuse of power, including intimidating witnesses, knowingly obtaining a false confession, or knowingly making a false arrest;

 

c. Physical abuse, including the excessive or unreasonable use of force;

 

d. Sexual assault;

 

e. Demonstrating bias on the basis of race, national origin, religion, gender identity or expression, housing status, sexual orientation, mental or physical disability, or other protected status;

 

f. Acts that violate the law and are sufficiently egregious or repeated as to be inconsistent with a peace officer’s obligation to uphold the law or respect the rights of members of the public;

 

g. Participation in a “law enforcement gang,” defined as a group of peace officers within a law enforcement agency who may identify themselves by a name and may be associated with an identifying symbol such as matching tattoos, and who engage in a pattern of on-duty behavior that intentionally violates the law or fundamental principles of professional policing, including harassing or discriminating against individuals, violating agency policy, persistently practicing unlawful detention or using excessive force, falsifying police reports, fabricating or destroying evidence, theft, unauthorized use of alcohol or drugs on duty, and retaliating against officers who threaten or interfere with the activities of the group;

 

Note:  See Pen. Code § 13670 (New; AB 958) “Law Enforcement Gangs,” under “Law Enforcement Policies and Procedures,” above. 

 

h. Failure to cooperate with an investigation into potential police misconduct; and

 

i. Failure to intercede when present and observing another officer using force that is clearly beyond that which is necessary.

 

By January 1, 2023, it is required that each law enforcement agency shall be responsible for the completion of investigations of allegations of serious misconduct by a peace officer, regardless of the officer’s employment status.

 

POST’s Peace Officer Standards Accountability Division (see Pen. Code § 13510.5, above) is required to promptly review any grounds for decertification received from a law enforcement agency. An investigation is required to be completed within three years of receiving the completed report of the disciplinary or internal affairs investigation from the employing agency.  All records of an investigation by POST are required to be retained for 30 years from when the investigation is concluded.

 

POST is further authorized to initiate proceedings to revoke or suspend a peace officer certification for conduct that occurred before January 1, 2022 for either of the following:

 

1. Dishonesty, sexual assault, or, deadly force that resulted in death or serious bodily injury; or

 

2. When the employing agency makes a final determination after January 1, 2022, regarding its investigation of the misconduct.

 

Pen. Code § 13510.85 (New; SB 2):  Decertification Notice and Proceedings:

 

An officer shall be notified in writing when a determination has been made by POST’s Peace Officer Standards Accountability Division (see Pen. Code § 13510.5, above) that the officer’s certification is to be revoked or suspended.  The officer is to be informed of his or her rights.

 

The officer is permitted to request, within 30 days, that POST’s Peace Officer Standards Accountability Advisory Board (see Pen. Code § 13509.6, above) review the determination. The Board is required to review the findings at a public hearing and to recommend revocation if the factual basis for revocation is established by “clear and convincing” evidence.

 

If the Board determines that a sanction other than revocation is warranted, it may recommend that a peace officer’s certification be suspended for a period of time.

 

POST is to review all the Board’s recommendations. POST’s decision to adopt a recommendation to revoke certification requires a two-thirds vote of the commissioners present and must be based on whether the record, in its entirety, supports the Board’s conclusion that serious misconduct has been established by clear and convincing evidence.

 

If action is to be taken against an officer’s certification, POST is required to send the case to the Division, which must initiate proceedings for a formal hearing before an administrative law judge. The administrative law judge’s decision is then subject to judicial review.

 

The hearings of the Board, POST, and the administrative law judge, and records introduced during those proceedings, shall be public.  POST is to publish the names of any peace officer whose certification is suspended or revoked and the basis for it, and to notify the National Decertification Index of the International Association of Directors of Law Enforcement Standards and Training.

 

Pen. Code § 13510.9 (New; SB 2):  Law Enforcement’s to Report Misconduct, and POST’s Duty to Inform Law Enforcement of Pending Investigations and Hearing Results:

 

Beginning January 1, 2023, all law enforcement agencies are required to report the following to POST:

 

1. The employment, appointment, termination, or separation from employment of a peace officer;

 

2. Any complaint, charge, or allegation of conduct against a peace officer that could result in suspension or revocation of certification;

 

3. Any finding or recommendation by a civilian oversight entity or police chief that a peace officer has engaged in conduct that could result in suspension or revocation of certification;

 

4. The final disposition of any investigation that determines a peace officer engaged in conduct that could result in suspension or revocation of certification;

 

5. Any civil judgment or court finding against a peace officer, or settlement of a civil claim against a peace officer or agency, based on conduct that could result in suspension or revocation of certification.

 

By July 1, 2023, all law enforcement agencies are required to report to POST the above specified conduct that occurred between January 1, 2020 and January 1, 2023.

 

In turn, POST is required to inform a law enforcement agency about the initiation of an investigation of a peace officer, the findings of the investigation, the final determination as to whether action should be taken against the officer’s certification, and the results of any adjudication after a hearing.

 

If the certification of a peace officer is revoked or temporarily suspended, POST must notify the district attorney of the county in which the peace officer was employed.

 

Pen. Code § 13511.1 (New; AB 89):  Development of a Modern Policing Degree Program:

 

Law enforcement stakeholders, the California State University, the Commission on Peace Officer Standards and Training (POST), and community organizations, are to serve as advisors to the Chancellor of California Community Colleges in order to develop a modern policing degree program.

 

This group, by June 1, 2023, is to submit a report with recommendations to the Legislature. The recommendations in the report are to focus on courses pertinent to law enforcement, such as psychology, communications, history, ethnic studies, and law; to include allowances for prior law enforcement experience, military experience, and other appropriate work experience to satisfy a portion of the employment eligibility requirements; and to include both a modern policing degree program or bachelor’s degree as minimum education requirements for employment as a peace officer.

 

Note:  This legislative attempt at improving peace officers’ education and training is to be known as the “Peace Officers Education and Age Conditions for Employment Act,” or the “PEACE Act.”

 

Peace Officer Personnel Records:

 

            Evid. Code § 1045 (Amended; SB 16): Pitchess Motions:

 

The limitation excluding from release of citizen complaints about conduct that occurred more than five years before the event currently being litigated has been deleted from the list of information in a peace officer’s personnel records that are not subject to release to the defense in a Pitchess (Pitchess v. Superior Court (1974) 11 Cal.3rd 531.) motion (former subd. (b)(1)), thus allowing a court to order disclosure of conduct occurring more than five years before the current incident if the court finds the information to be relevant (i.e., still subject to non-release are: “(f)acts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.” (current subd. (b)(2))

 

Pen. Code § 832.5 (Amended; SB 16):  Retention of Citizen’s Complaints of Officer Misconduct:

 

The length of time that a department or agency must retain complaints about peace officer conduct and reports or findings related to complaints has been increased from at least 5 years to:

 

At least 5 years for records where there was not a sustained finding of misconduct; and

 

At least 15 years where there was a sustained finding of misconduct. Prohibits the destruction of a record while a disclosure request is being processed or while litigation about disclosure is ongoing.

 

Pen. Code § 832.7 (Amended; SB 2 & 16):  Police Personnel Records That Are Not Confidential:

 

The list of records that are deemed not confidential under the California Public Records Act and must be made available for public inspection were expanded to include the following:

 

1. Records relating to a sustained finding involving a complaint that alleges unreasonable or excessive force.

 

2. Records relating to a sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive.

 

3. Records relating to a sustained finding that an officer engaged in conduct (e.g., verbal, in writing, online posts, recordings, gestures) involving prejudice or discrimination against a person on the basis of race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military or veteran status.

 

4. Records relating to a sustained finding that an officer made an unlawful arrest or conducted an unlawful search.

 

The above records that relate to an incident that occurred before January 1, 2022 are not subject to the time limitations in Pen. Code § 832.7(b)(8) until January 1, 2023.

 

Notes: 

 

Pen. Code § 832.7(b)(8) permits a law enforcement agency to withhold records of officer misconduct and use of force from the public if the incident is the subject of an active criminal or administrative investigation, but only for a specified period of time and under specified circumstances.

 

This section continues to provide that records about the following types of conduct are not confidential and must be made available for public inspection: The discharge of a firearm at a person by an officer; the use of force by an officer that results in death or great bodily injury; a sustained finding of sexual assault by an officer against a member of the public; and a sustained finding involving dishonesty by an officer related to the reporting, investigation, or prosecution of a crime, or relating to the misconduct of another officer, including false statements, filing false reports, destruction of evidence, falsifying evidence, concealing evidence, or perjury.

 

The section also requires the disclosure of records that would otherwise be subject to disclosure, when they relate to an officer who resigned before the law enforcement agency finished its investigation.

 

The purposes for which an agency may redact a record before disclosing it has been expanded by adding the preservation of the anonymity of whistleblowers and victims.

 

Note:  Complainants and witnesses continue to be specified.

 

The section has been expanded to include all forms of officer misconduct and use of force listed in this section (i.e., discharge of a firearm by an officer, use of force resulting in death or great bodily injury, unreasonable or excessive force, failing to intervene against an officer using unreasonable or excessive force, sexual assault, dishonesty, prejudice or discrimination, unlawful arrest or unlawful search) under the provisions that permit an agency to withhold records of an incident for specified periods of time when there is an active criminal or administrative investigation.

 

The costs of copying records that a department may charge a requestor shall not include the costs of searching for, editing, or redacting the records.

 

Records subject to disclosure must be provided at the earliest possible time and no later than 45 days from the date of request for disclosure, unless the agency is permitted to withhold records because of an active investigation.

 

The “lawyer-client privilege” does not prohibit the disclosure of either of the following:

 

1. Factual information provided by the public entity to its attorney or factual information discovered in any investigation conducted by, or on behalf of, the public entity’s attorney; and

 

2. Billing records related to the work done by the attorney as long as the records do not relate to active and ongoing litigation and do not disclose information for the purpose of legal consultation between the public entity and its attorney.

 

Per SB 2, the Commission on Peace Officer Standards and Training (POST) is added to the list of entities (grand jury, district attorney’s office, and the Attorney General’s office) that this section does not apply to when they are investigating the conduct of peace officers or custodial officers.

 

Pen. Code § 832.12 (Amended; SB 16):  Inspection of Office’s Personnel Files Before Hiring:

 

As amended, a department or agency, before hiring a peace officer, must request and review the prospective officer’s prior personnel files.

 

Pen. Code § 832.13 (New; SB 2):  Use of Force; Mandatory Reporting:

 

Every person employed as a peace officer must immediately report all uses of force by that officer to his or her department or agency.

 

Plea Bargaining:

 

Pen. Code § 1016.7 (New; AB 124):  Factors In Mitigation and Plea Bargaining:

 

A prosecutor, in order to reach a just resolution during plea negotiations, is required to consider the following factors in support of a mitigated sentence if any were “a contributing factor in the commission of the alleged 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 is a youth, or was a youth at the time the crime was committed. Defines “youth” as a person under age 26 on the date of the offense.

 

3. Prior to the offense, or during its commission, the defendant was a victim of intimate partner violence or human trafficking.

 

Note:  See Pen. Code §§ 236.15 and 236.23, under “Human Trafficking,” above.

 

 

 

 

Sex Offenses:

 

Evid. Code § 782 (Amended; AB 341):  Social Media Evidence and a Sexual Assault Victim’s Character:

 

The definition of “evidence of sexual conduct” has been expanded to include in new subd. (b)(2) “those portions of a social media account about the complaining witness, including any text, image, video, or picture, which depict sexual content, sexual history, nudity or partial nudity, intimate sexual activity, communications about sex, sexual fantasies, and other information that appeals to a prurient interest, unless it is related to the alleged offense,” making such evidence inadmissible absent a trial court’s ruling to the contrary.

 

Note:  This provision prevents a defendant in a sexual assault case from using such evidence to impeach the credibility of the victim absent the trial court’s permission to do so, following an evidentiary hearing outside the presence of the jury where the defense must make a showing of the relevance of such evidence pursuant to Evid. Code § 780, and that it is not inadmissible pursuant to Evid. Code § 352 (i.e., its relevance is outweighed by its prejudicial effect).  After such a hearing, the court may, in its discretion, order that evidence may be introduced by the defendant, and the nature of the questions to be permitted.

 

Evid. Code § 1103(c) (Amended; AB 939 and AB 1171):  Evidence of a Victim’s Character in Sexual Assault Cases:  

 

Subd. (c)(1) has been rewritten to eliminate a cross-reference to P.C. § 262 (rape of a spouse), spousal rape instead now being incorporated into P.C. § 261.

 

Note:   Subd. (c)(1) prohibits, in specified sexual assault cases, the introduction of opinion evidence, reputation evidence, or evidence of specific instances of the victim’s sexual conduct to prove consent.

 

Subd. (c)(2) has been rewritten to eliminate a trial court’s discretion to admit into evidence “the manner in which the victim was dressed at the time of the commission of the offense” if “the evidence is determined by the court to be relevant and admissible in the interests of justice.” 

 

Also eliminated from the statute are the procedures that were to be followed by the trial court in making that determination:  I.e.; “The proponent of the evidence shall make an offer of proof outside the hearing of the jury. The court shall then make its determination and at that time, state the reasons for its ruling on the record.”

 

Still contained in subd. (c)(2) is the provision that the “‘manner of dress’ does not include the condition of the victim’s clothing before, during, or after the commission of the offense.”

 

Note:  Section 1103 overall (in subds. (a) and (b)) deals with exceptions to the rule, as contained in Evid. Code § 1101, prohibiting the admission into evidence of so-called “character evidence.”  Subd. (c) covers such evidence in sexual assault cases.

 

Gov’t. Code § 945.9 (New; AB 1455): Civil Suits Arising Out of a Sexual Assault by a Law Enforcement Officer:

 

See “Peace Officer Civil Liability,” above.

 

Pen. Code §§ 261 (Amended) & 262 (Repealed; AB 1171):  Rape and Spousal Rape:

 

Pen. Code § 262 (rape of a spouse) has been repealed in its entirety and is now incorporated into the various subdivisions of Pen. Code § 261, except for subd. (a)(1).   

 

All other types of rape, as contained in Pen. Code §§ 261(a)(2)–(7), apply regardless of whether the perpetrator and victim are spouses.

 

Although Pen. Code § 261(a)(1) does not apply where the perpetrator and victim are spouses, the section specifically provides that nothing in 261(a)(1) precludes the prosecution of a spouse who commits the act from being prosecuted under any other paragraph in 261(a), or under any other law.

 

Pen. Code §§ 680 & 680.3 (Amended; SB 215): Tracking Sexual Assault Evidence Kits:

 

The Department of Justice (DOJ), by July 1, 2022, is required to establish a process that allows sexual assault victims to privately and electronically track and receive updates about the status and location of their sexual assault evidence kits in DOJ’s SAFE-T database.

 

Notes: 

 

This eliminates the current method of sexual assault victims attempting to track the status of their sexual assault evidence kits via telephone. 

 

Pen. Code § 680.3 continues to require law enforcement agencies to create an information profile for sexual assault kit evidence in the SAFE-T database within 120 days of collecting the evidence.

 

 

 

 

 

 

Theft:

 

Pen. Code § 487m (New; AB 1003):  Theft of Wages:

 

(a) Notwithstanding Sections 215 and 216 of the Labor Code, the intentional theft of wages in an amount greater than nine hundred fifty dollars ($950) from any one employee, or two thousand three hundred fifty dollars ($2,350) in the aggregate from two or more employees, by an employer in any consecutive 12-month period may be punished as grand theft.

 

(b) For purposes of this section, “theft of wages” is the intentional deprivation of wages, as defined in Section 200 of the Labor Code, gratuities, as defined in Section 350 of the Labor Code, benefits, or other compensation, by unlawful means, with the knowledge that the wages, gratuities, benefits, or other compensation is due to the employee under the law.

 

(c) For purposes of this section, “employee” includes an independent contractor and “employer” includes the hiring entity of an independent contractor.

 

(d) Wages, gratuities, benefits, or other compensation that are the subject of a prosecution under this section may be recovered as restitution in accordance with Sections 1202.4 and 1203.1. This section does not prohibit the employee or the Labor Commissioner from commencing a civil action to seek remedies provided for under the Labor Code for acts prosecuted under this section.

 

(e) This section does not constitute a change in, and does not expand or limit the scope of conduct prohibited by, Section 487.

 

Notes:

 

Labor Code §§ 215 and 216 deal with the payment of wages.

 

Labor Code § 200(a) defines “wages” as “includ(ing) all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation.”

 

Labor Code § 350(e) (Amended; effective Jan. 1, 2022) defines “gratuity” as include(ing) any tip, gratuity, money, or part thereof that has been paid or given to or left for an employee by a patron of a business over and above the actual amount due the business for services rendered or for goods, food, drink, or articles sold or served to the patron. Any amounts paid directly by a patron to a dancer employed by an employer subject to Industrial Welfare Commission Order No. 5 or 10 shall be deemed a gratuity.”

 

Pen. Code §490.4 (New; AB 331):  Organized Retail Theft:

 

(a) A person who commits any of the following acts is guilty of organized retail theft, and shall be punished pursuant to subdivision (b):

 

(1) Acts in concert with one or more persons to steal merchandise from one or more merchant’s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value.

 

(2) Acts in concert with two or more persons to receive, purchase, or possess merchandise described in paragraph (1), knowing or believing it to have been stolen.

 

(3) Acts as an agent of another individual or group of individuals to steal merchandise from one or more merchant’s premises or online marketplaces as part of an organized plan to commit theft.

 

(4) Recruits, coordinates, organizes, supervises, directs, manages, or finances another to undertake any of the acts described in paragraph (1) or (2) or any other statute defining theft of merchandise.

 

(b) Organized retail theft is punishable as follows:

 

(1) If violations of paragraph (1), (2), or (3) of subdivision (a) are committed on two or more separate occasions within a 12-month period, and if the aggregated value of the merchandise stolen, received, purchased, or possessed within that 12-month period exceeds nine hundred fifty dollars ($950), the offense is punishable by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170.

 

(2) Any other violation of paragraph (1), (2), or (3) of subdivision (a) that is not described in paragraph (1) of this subdivision is punishable by imprisonment in a county jail not exceeding one year.

 

(3) A violation of paragraph (4) of subdivision (a) is punishable by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170.

 

(c) For the purpose of determining whether the defendant acted in concert with another person or persons in any proceeding, the trier of fact may consider any competent evidence, including, but not limited to, all of the following:

 

(1) The defendant has previously acted in concert with another person or persons in committing acts constituting theft, or any related offense, including any conduct that occurred in counties other than the county of the current offense, if relevant to demonstrate a fact other than the defendant’s disposition to commit the act.

 

(2) That the defendant used or possessed an artifice, instrument, container, device, or other article capable of facilitating the removal of merchandise from a retail establishment without paying the purchase price and use of the artifice, instrument, container, or device or other article is part of an organized plan to commit theft.

 

(3) The property involved in the offense is of a type or quantity that would not normally be purchased for personal use or consumption and the property is intended for resale.

 

(d) In a prosecution under this section, the prosecutor shall not be required to charge any other co-participant of the organized retail theft.

 

(e) Upon conviction of an offense under this section, the court shall consider ordering, as a condition of probation, that the defendant stay away from retail establishments with a reasonable nexus to the crime committed.

 

(f) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.

 

Note:  This statute was already in the Penal Code, but with a sunset date of July 1, 2021.  The above is a reenactment of the same offense.

 

Vaccination Sites:

 

Pen. Code § 594.39 (New; SB 742):  Obstruction of Vaccination Sites:

 

(a) It is unlawful to knowingly approach within 30 feet of any person while a person is within 100 feet of the entrance or exit of a vaccination site and is seeking to enter or exit a vaccination site, or any occupied motor vehicle seeking entry or exit to a vaccination site, for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant.

 

(b) A violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.

 

(c) For purposes of this section:

 

(1) “Harassing” means knowingly approaching, without consent, within 30 feet of another person or occupied vehicle for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with, that other person in a public way or on a sidewalk area.

 

(2) “Interfering with” means restricting a person’s freedom of movement.

 

(3) “Intimidating” means making a true threat directed to a person or group of persons with the intent of placing that person or group of persons in fear of bodily harm or death.

 

(4) “Obstructing” means rendering ingress to or egress from a vaccination site, or rendering passage to or from a vaccination site, unreasonably difficult or hazardous.

 

(5) “True threat” means a statement in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular person or group of persons regardless of whether the person actually intends to act on the threat.

 

(6) “Vaccination site” means the physical location where vaccination services are provided, including, but not limited to, a hospital, physician’s office, clinic, or any retail space or pop-up location made available for vaccination services.

 

(d) It is not a violation of this section to engage in lawful picketing arising out of a labor dispute, as provided in Section 527.3 of the Code of Civil Procedure.

 

(e) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

 

Vehicle Code:

 

Veh. Code § 21300 (New; AB 974):  Riding an Equestrian Animal on a Paved Highway: Helmets and Reflective Gear Requirements:

 

A person under the age of 18 years riding an equestrian animal on a paved highway is required to wear a properly fitted and fastened helmet that meets specified standards.

 

Any person riding an equestrian animal on a paved highway during the hours of darkness is required to either:

 

1. Wear reflective gear or have reflective gear on the animal that is visible from 500 feet on the rear and the sides; or

 

2. Have a white light attached to the person or the animal that is visible from 300 feet in front and on the sides.

 

A violation of the above is an infraction punishable by a fine of up to $25.

 

A parent or guardian of a minor who violates this new section is jointly and severally liable with the minor for the amount of the fine.

 

A charge under this new section will be dismissed when the violator alleges in court and under oath that the charge is the first charge against the person under this section, unless it is established in court that the charge is not the first charge against the person.

 

The above helmet and lighting requirements do not apply when the rider is participating in a parade or festival, or while crossing a paved highway from an unpaved highway.

 

In a civil action, a violation of this new section does not establish negligence on the part of the rider as a matter of law or negligence per se for comparative fault purposes, but that negligence may be proven without regard to the violation.

 

Veh. Code § 40303.5 (Amended; AB 591):  Vessel Violations and “Fix-It” Tickets:

 

A number of violations relating to vessel registration, identification numbers, and equipment is added to the list of violations (e.g., vehicle registration infraction, driver’s license infraction, bicycle equipment, vehicle equipment) for which an officer must issue a “fix-it ticket,” unless the officer finds that any of the disqualifying conditions in Veh. Code § 40610(b) apply (e.g., fraud, persistent neglect, immediate safety hazard, the violator does not agree to promptly correct the violation).

 

The added violations are:

 

1. Expired vessel registration (Veh. Code § 9850);

2. Display of vessel identification numbers (Veh. Code § 9853.2);

3. Possession of a vessel operating card (Harb. & Nav. Code § 678.11);

4. Display of vessel identification numbers (Cal. Code Regs. title 13, § 190.00(a) and (c));

5. Vessel registration stickers (13 Cal. Code Regs. § 190.01);

6. Personal flotation devices on vessels (14 Cal. Code Regs. § 6565.8);

7. Serviceable fire extinguishers on vessels (14 Cal. Code Regs. § 6569); and

8. Markings on fire extinguishers on vessels (14 Cal. Code Regs. § 6572).

 

 

 

Victims and Witnesses:

 

Pen. Code § 1054.2 (Amended; AB 419):  Disclosure of a Victim or Witness’ Identifying Information:

 

The types of information that defense attorneys are prohibited from disclosing about victims and witnesses beyond addresses and telephone numbers has been expanded to include “personal identifying information.”

 

“Personal identifying information” has the same definition as in Pen. Code § 530.55; e.g., address, telephone number, date of birth, driver’s license number, social security number, bank account number, mother’s maiden name, passport number, and credit card number.  However, it does not include name, place of employment, or an equivalent form of identification.

 

This amendment eliminates the misdemeanor crime of an attorney, an employee of an attorney, or person appointed by the court committing a willful violation of this section.

 

Note:  A defense attorney may disclose personal identifying information to persons employed by the attorney or to persons appointed by the court to assist in the preparation of a defendant’s case, if that disclosure is required for preparation.  The attorney may also disclose personal identifying information if permitted to do so by the court after a hearing and showing of good cause. Also, if a defendant is acting as his or her own attorney, the court must protect the personal identifying information of a witness or victim by providing for contact only through a licensed private investigator, or by imposing other reasonable restrictions.