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For our Professional Subscribers. The 600-plus-page document includes 13 chapters that explore the Constitutional basis of Miranda, exceptions to the rule, waivers, juveniles and suppression issues, among other critical topics. Test your knowledge with our short Miranda quiz here, and become a Pro Subscriber today to access the entire update. One Judicial Officer Calls Our Vital Miranda Update the “Most Referenced Resource on the Criminal Bench”
 

Test Your Miranda Knowledge

The full compendium provides an essential research source for ongoing reference in applying Miranda in both field and investigative situations. Here are some examples:  

1. A suspect has asserted his Miranda right to counsel and remains in custody. Are there circumstances under which he can be questioned by your agency or another agency on a separate and unrelated offense       
   YES       NO  
    
2. A criminal complaint has been filed and an arrest warrant issued for a suspect. Can you ask this individual to come to the station and conduct a non-custodial, Beheler interview      
   YES       NO  
    
3. A civil liability action under Title 42 – Section 1983 U.S. Code can apply for a Miranda (Fifth Amendment) violation      
   YES       NO  
    

 ANSWERS: 

 

1. YES – The U.S. Supreme Court has established a 14-day rule for contacting a subject who previously asserted one’s Miranda right to counsel (Maryland v. Shatzer (2010) 559 U.S. 98): “That provides plenty of time for the suspect to get re-acclimated with his normal life, to consult with friends and counsel, and to shake off any residual effects of his former custody.” One California case has ruled the 14-day rule applies even of the suspect is released from custody (Peo. v. Bridgeford (2015) 241 Cal. App. 4th 887).  
    
2. NO – Once a suspect has been formally charged, any questioning must be cleared by a Miranda admonition and waiver which informs the subject of his/her right to counsel (U.S. v. Fellers (2004) 540 U.S. 519, Peo. v. Viray (2005)134 Cal. App. 4th 1186). This is true even if the subject has not been arraigned and counsel appointed.  
    
3. NO – The failure to administer a Miranda admonition or questioning in violation of the Miranda Rule does not rise to the level of a civil liability action (Chavez v. Martinez (2003) 538 US 760). The constitutional remedy is suppression of any statement in court. However, civil liability could apply for a Fourteenth Amendment (due process) violation where coercive questioning takes place (Henry v. Kernan (1999) 197 F 3d. 1021). “What the task force did constitutes a 20th-century inquisitorial version of the Star Chamber...to characterize the task force’s conduct as a mere violation of Miranda’s prophylactic advisement requirements is to see a hurricane as but a mov ement of air.” (Cooper v. Dupnik (1992) 93 F. 2d 1220).  
    

 

Special Subscribers’ Edition: New Laws for 2025 – What You Need to Know

Each year retired Deputy District Attorney Robert Phillips brings our Professional Subscribers a comprehensive look at the new and amended statutes for the year. These are critical changes you need to know as a law enforcement officer on the streets or a lawyer in the courtroom. Stay up to date at Legal Updates with this update and others throughout the year.

This edition is one of our most sought-after publications of the year and has been described as a “must have” for law enforcement officers, attorneys and judges.

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– Legal Updates Team

NEW LAWS COVERED IN OUR 2025 NEW AND AMENDED STATUTES UPDATE:

• Animal Abuse 
• Assault and Battery
• Consumer Protections
• Controlled Substances, Diversion
• Domestic Violence, Sex Offenders, Sexual Assault, Child Pornography
• Revenge Pornography, Drink Spiking
• Elections, Free Speech
• Firearms
• Human Trafficking
• Racial Issues
• Restraining and Protective Orders
• Search Warrants, Wiretaps
• Social Media, Cyber Protection, Artificial Intelligence and Social Media Platforms
• Theft-Related Crimes; Vehicle Breaking, Entering, and Possession of the Property Stolen
• Tobacco Products
• Vehicle Code

Important note: Due to its size you must download the Full Update and Table of Contents separately.  To download the Full Update (2177 pages) please scroll up to the green highlighted box and click on the download button.   This will only be visible to our Professional Members who are logged in to our site.  If you have not yet downloaded the Full Update, please click here after downloading the Table of Contents. 
 

Brief Description of this update: A Pro Subscribers Exclusive Your Essential Guide to the Fourth Amendment and Search and Seizure. 

This annual compendium of Fourth Amendment and search and seizure issues, compiled by retired Deputy District Attorney Robert Phillips, includes a concise but detailed discussion of the most important guidelines you need on these issues. Whether you are an officer, investigator, attorney preparing for a motion, or a judge deciding a Fourth Amendment issue, you will find this resource invaluable. According to retired Honorable Superior Court Commissioner Stephany Joy, this was among the “most referenced resource” used by her colleague judges on the Sonoma County Superior Court criminal bench.  

A resource second to none in California, this 24th annual update comprises 20 searchable chapters covering the Fourth Amendment A through Z. And it’s all accessible on your cellphone, laptop or desktop computer. 

Included for our Pro Subscribers, discussions of: 

• The Constitutional Basis for Searches and Seizures 
• Due Process 
• Double Jeopardy 
• Fruit of the Poisonous Tree 
• Expectation of Privacy 
• Victim’s Rights 
• Civil Liability and Qualified Immunity 
• Standards of Proof 
• The Trial Court and Prosecutor’s Immunity 
• Consensual Encounters, Detentions and Arrests 
• Use of Force 
• Warrantless Searches and Seizures 
• And much, much more 

This publication is an exclusive benefit for our Pro Subscribers. To update your subscription to include access to these articles and more, please login and upgrade your plan today. 

A special note from our publisher: For those who know Robert Phillips, his dedication to our subscribers is unmatched. He has devoted much of his time during retirement researching new case decisions and changes in the law. For example, the latest update is more than 2,000 pages,  plus 105 pages of detailed table of contents. In addition to spending nearly a year of research on this project, he spends months editing and formatting the lengthy document. All of this is offered at no additional cost to our Pro Subscribers. We thank our Pro Subscribers for your support in making our website possible. If you are not already a Pro Subscriber, we ask that you consider upgrading here. Our 50% off promotion is still available if you sign up now. Your membership supports our ability to bring you these important resources, including the research and publication of this critical material. If you are feeling extra tipsy and would like to offer Mr. Phillips a direct donation, please click here to offer a token of your appreciation. Thank you for your consideration. Stay safe! 

Important note: Due to its size you must download the Full Update and Table of Contents separately.  To download the Full Update (2177 pages) please scroll up to the green highlighted box and click on the download button.   This will only be visible to our Professional Members who are logged in to our site.  If you have not yet downloaded the Table of Contents, please click here after downloading the full update. 

 

Brief Description of this update: A Pro Subscribers Exclusive Your Essential Guide to the Fourth Amendment and Search and Seizure. 

This annual compendium of Fourth Amendment and search and seizure issues, compiled by retired Deputy District Attorney Robert Phillips, includes a concise but detailed discussion of the most important guidelines you need on these issues. Whether you are an officer, investigator, attorney preparing for a motion, or a judge deciding a Fourth Amendment issue, you will find this resource invaluable. According to retired Honorable Superior Court Commissioner Stephany Joy, this was among the “most referenced resource” used by her colleague judges on the Sonoma County Superior Court criminal bench.  

A resource second to none in California, this 24th annual update comprises 20 searchable chapters covering the Fourth Amendment A through Z. And it’s all accessible on your cellphone, laptop or desktop computer. 

Included for our Pro Subscribers, discussions of: 

• The Constitutional Basis for Searches and Seizures 
• Due Process 
• Double Jeopardy 
• Fruit of the Poisonous Tree 
• Expectation of Privacy 
• Victim’s Rights 
• Civil Liability and Qualified Immunity 
• Standards of Proof 
• The Trial Court and Prosecutor’s Immunity 
• Consensual Encounters, Detentions and Arrests 
• Use of Force 
• Warrantless Searches and Seizures 
• And much, much more 

This publication is an exclusive benefit for our Pro Subscribers. To update your subscription to include access to these articles and more, please login and upgrade your plan today. 

A special note from our publisher: For those who know Robert Phillips, his dedication to our subscribers is unmatched. He has devoted much of his time during retirement researching new case decisions and changes in the law. For example, the latest update is more than 2,000 pages,  plus 105 pages of detailed table of contents. In addition to spending nearly a year of research on this project, he spends months editing and formatting the lengthy document. All of this is offered at no additional cost to our Pro Subscribers. We thank our Pro Subscribers for your support in making our website possible. If you are not already a Pro Subscriber, we ask that you consider upgrading here. Our 50% off promotion is still available if you sign up now. Your membership supports our ability to bring you these important resources, including the research and publication of this critical material. If you are feeling extra tipsy and would like to offer Mr. Phillips a direct donation, please click here to offer a token of your appreciation. Thank you for your consideration. Stay safe! 

The California Legal Update - New and Amended Statutes Edition
Vol. 29   No. 1
January 1, 2024

By: Robert C. Phillips
Deputy District Attorney (Retired)  
robert@legalupdates.com
(877) 266-4003

www.legalupdates.com®

DISCLAIMER NOTICE: The information provided in this email and any other email from LEGALUPDATES.COM® to you does not and is not intended to, constitute legal advice. Instead, all information, content, and materials contained in our email(s) are for general informational purposes only and do not address your particular situation.  Please contact your attorney to obtain legal advice with respect to your particular legal matter. For further information, please review our disclaimer and terms & conditions https://legalupdates.com/terms-condition

THIS EDITION’S WORDS OF WISDOM: 

“I finally figured out why I look so bad in pictures.  It’s my face.”

 

IN THIS ISSUE:
                                
Administrative Notes:                                                                                                

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

New and Amended Statutes:                                                                                             

Anti-Reproductive Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Abortions  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

California Government Justice Commissions and Powers . . . . . . . . . . . . . . . . 6

Child Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Controlled Substances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . .7

Elder and Dependent Adult Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Elections Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .13

Excited Delirium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Firearms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 15

Good Samaritan Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  ... . . . .45

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

Homeless Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48

Homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48

In-Vehicle Cameras. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Juveniles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 49

Law Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Marijuana (Cannabis) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Missing Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .61

Post-Conviction Probation Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Prisoners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . 66

Prosecutors’ Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70

Racial Prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Restraining Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .72

Sexual Assault Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72

Superior Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .73

Vehicle Code Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .73

Victims of Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79

 

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 2023, 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, procedural, and/or administrative 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.  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.  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, 2024, unless otherwise indicated.  Bolding and italics have been added for emphasis.

NEW AND AMENDED STATUTES:

Anti-Reproductive Rights:

Pen. Code § 13777 (Amended; AB 134; Effective July 10, 2023):  Anti-Reproductive Rights Crime Reports to the Attorney General:

The frequency that district attorneys, city attorneys, and law enforcement agencies must report anti-reproductive rights crimes to the Attorney General is increased by amendment from annually to monthly.  This delays from January 1, 2025 to July 1, 2025, the annual report the Attorney General is required to submit to the Legislature about these crimes.

Pen. Code § 13778.3 (New; SB 345):  The Reproductive Rights Law Enforcement Act:

A new section is added to the “Reproductive Rights Law Enforcement Act” (P.C. §§ 13775–13778.2), prohibiting a state or local government employee, or a person or entity acting on behalf of a local or state government, from cooperating with, or providing information or resources to, an individual or agency seeking to apprehend or arrest a fugitive from another state who is accused of conduct related to abortion or gender-affirming care that is legal in California.

This new law requires any out-of-state subpoena, warrant, wiretap order, pen register trap and trace order, legal process, or request from a law enforcement agent or entity to include an affidavit or declaration under penalty of perjury that the discovery is not in connection to an out-of-state proceeding involving abortion or gender-affirming care that would be legal in California, unless the out-of-state proceeding is “based in tort, contract, or on statute;” or is “actionable, in an equivalent or similar manner, under the laws of this state;” or was “brought by the patient who received a legally protected health care activity or the patient’s legal representative.”

A California corporation that provides electronic communication services or remote computing services to the general public is prohibited from complying with an out-of-state subpoena, warrant, wiretap order, pen register trap and trace order, other legal process, or a request by a law enforcement agent or entity seeking records that would reveal the identity of customers using those services, data stored by or on behalf of customers, or the content of communications, unless the legal process or request includes an affidavit or declaration under penalty of perjury that the discovery is not in connection to an out-of-state proceeding involving abortion or gender-affirming care that would be legal in California.

Note:  This bill also amends and creates a number of sections in various codes to prevent the enforcement or effect in California of other states’ laws on abortion and “gender-affirming care.”  (E.g., see Pen. Code § 187; Abortion Exception for Homicides; Pen. Code § 847.5:  Bail Bondsmen and Abortion, Contraception, or Gender-Affirming Care-Related Arrest Warrants, below; P.C. §1549.15 (New; SB 345), for definitions for “gender-affirming health care,” “gender-affirming mental health care;” “legally protected health care activity;” and “reproductive health care services.”  Pen. Code § 1299.02:  Bail Bondsmen Arresting a Bail Fugitive From Another State for an Offense Related to Abortion, Contraception, or Gender-affirming Care; Punishment

 Abortions:

Pen. Code § 187 (Amended; SB 345):  Abortion Exception for Homicides:

Subdivision (b) continues to provide that P.C. § 187 does not apply to a person who commits an act that results in the death of a fetus if any one of three circumstances applies: 

Subd. (b)(1):  This subdivision is amended to add a cross-reference to the Reproductive Privacy Act (H&S §§ 123460–123469), which became law on January 1, 2003, and replaced the Therapeutic Abortion Act, which was previously in Article 2 (commencing with H&S § 123400) of Chapter 2 of Part 2 of Division 6 of the Health & Safety Code. The word “former” is added in front of “Therapeutic Abortion Act.” As a result, the abortion exemption in subdivision (b)(1) now provides that the death of a fetus is not murder if the act complies with the former Therapeutic Abortion Act or with the current Reproductive Privacy Act.   

Subd. (b)(2): This subdivision, which applies to a physician or surgeon committing an act that results in the death of a fetus, where childbirth would result in the death of the mother to a medical certainty, or where her death would be substantially certain or more likely than not, is amended, changing the term “mother of the fetus” to “person pregnant with the fetus.”

(b)(3):  This subdivision which provides an exemption for an act solicited, aided, abetted, or consented to by the mother of the fetus, is expanded to also include “an act or omission by the person pregnant with the fetus.” This subdivision now reads as follows: “It was an act or omission by the person pregnant with the fetus or was solicited, aided, abetted, or consented to by the person pregnant with the fetus.”

Note:  This bill further amends and creates a number of sections in various codes to prevent the enforcement or effect in California of other states’ laws on abortion and “gender-affirming care.”

Pen. Code § 847.5 (Amended; SB 345):  Bail Bondsmen and Abortion, Contraception, or Gender-Affirming Care-Related Arrest Warrants:

As amended, this section now prohibits bail bondsman from requesting an arrest warrant for a fugitive in California who escaped bail for an offense in another state related to abortion, contraception, or gender-affirming care that is legal in California. Prohibits a magistrate in California from issuing such an arrest warrant.

A bail bondsman or person who apprehends or arrests, without a magistrate’s order, a person who is a fugitive from another state for an offense related to abortion, contraception, or gender-affirming care that is legal in California, is not eligible for a bail license (Ins. C. § 1800) or a license as a private investigator (B&P §§ 7512–7573.5), or if already licensed, must forfeit the license.

Any person taken into custody by a bail agent for an offense committed in another state related to abortion, contraception, or gender-affirming care that is legal in California, may bring a civil action against the bondsman or bond company within three years.

The crime of a bondsman taking a fugitive into custody without a California court order is reduced from a misdemeanor to an infraction, punishable by a fine of $5,000.  (See P.C. § 1299.02 (Amended), below.)

Note:  See also P.C. §1549.15 (New; SB 345), for definitions for “gender-affirming health care,” “gender-affirming mental health care;” “legally protected health care activity;” and “reproductive health care services.”

Pen. Code § 1299.02 (Amended; SB 345):  Bail Bondsmen Arresting a Bail Fugitive From Another State for an Offense Related to Abortion, Contraception, or Gender-affirming Care; Punishment:

The new infraction crime, in subdivision (d), of a bail fugitive recovery agent apprehending or arresting a fugitive from another state who escaped bail for an offense related to abortion, contraception, or gender-affirming care that is legal in California, is added to P.C. § 1299.02.

Punishment:  $5,000 fine and that the offender is not eligible for a bail license (Ins. Code § 1800) or a license as a private investigator (B&P §§ 7512–7573.5), or if already licensed, must forfeit the license.

A person taken into custody in violation of this new subdivision may bring a civil action against the bail fugitive recovery agent within three years.

Note:  See also P.C. §1549.15 (New; SB 345), for definitions for “gender-affirming health care” and “gender-affirming mental health care;” “legally protected health care activity;” and “reproductive health care services.”

Pen. Code § 1334.2 (Amended; SB 345):  Court Order to Witness to Another State’s Criminal Prosecution Relating to Abortion, Contraception, or Gender-Affirming Care:

New subdivision (j) is added prohibiting a judge from issuing an order directing a witness to appear in another state if the criminal prosecution in the other state is for an offense related to abortion, contraception, or gender-affirming care that is legal in California.

Notes: 

This bill amends and creates a number of sections in various codes to prevent the enforcement or effect in California of other states’ laws on abortion, contraception, and “gender-affirming care.”

See also P.C. §1549.15 (New; SB 345), for definitions for “gender-affirming health care” and “gender-affirming mental health care;” “legally protected health care activity;” and “reproductive health care services.”

California Government Justice Commissions and Powers:

Gov’t. Code §§ 68655, 68656, 68657, 68658, & 68659 (New; SB 133; Effective June 30, 2023):  The California Access to Justice Commission; Duties, Responsibilities, and Purposes:

New Chapter 2.2 is added to Title 8 of the Government Code entitled “California Access to Justice Commission.” This new Commission, other than making “big government” even bigger, is empowered to inform the Legislature of its position on any legislative proposal; to urge the introduction of legislative proposals; to state its position and viewpoint on issues developed in the performance of its duties; to inform the executive and judicial branches of its positions on regulations and rules and to submit amicus curiae briefs; to hold public hearings and issue reports; and to initiate projects to provide legal assistance. The Commission’s purposes are fourfold:

1.      To provide leadership in efforts to achieve full and equal access to justice for all Californians, including indigent and moderate-means Californians, immigrants, children and families, seniors, persons with disabilities, persons in rural areas, veterans, and others currently unable to meet their legal needs;

2.      To identify and promote improved methods of delivering legal help through coordinated efforts among the three branches of government, the public, attorneys, and others in the public and private sectors;

 

3.      To administer grant programs and programs supporting the recruitment and retention of legal aid attorneys; and

 

4.       To encourage increases in the resources available to achieve equal access to justice, including funding for legal help for people who cannot afford to pay, and donated time and effort by pro bono lawyers and others.

 

Commission members are to be appointed by the Governor, the Senate President pro Tempore, the Speaker of the Assembly, and the Judicial Council. These members are permitted to approve additional members at a meeting. There is to be a geographic balance of representation with the members broadly representing organizations and communities who participate in or are affected by the civil justice system in California.

 

Gov’t. Code § 83116.7 (New; SB 29; Effective October 10, 2023): Political Reform Education Program:

 

The Fair Political Practices Commission is authorized to establish and administer a “political reform education program” for specified persons who violate the Political Reform Act of 1974 (Gov’t. Code §§ 81000–91014). Any person who completes the program shall not be subject to criminal, civil, or administrative penalties for the violation, and the violation shall not be deemed a prior violation in any subsequent proceeding. If the person fails to complete the program, the Commission may pursue an administrative action.

 

Eligibility requirements for the education program:

 

1. The person has little or no experience with the section violated;

2. The underlying violation resulted in minimal or no public harm;

3. The person has not been ordered to pay a penalty for the same type of violation in the past five years; and

4. There is no evidence of intent to violate or to conceal a violation of, the Political Reform Act.

 

The Commission may impose additional eligibility requirements.

 

Child Abuse:

 

See “Victims of Crime,” below.

 

Controlled Substances:

 

Health & Safety Code § 11150.3 (New; AB 1021):  Redesignation of Schedule 1 Controlled Substances under Federal Law and Its Effects on California Law:

 

When and if any Schedule I (H&S 11054) controlled substance is excluded or rescheduled by federal authorities from Schedule I of the federal Controlled Substances Act, or if the federal Food & Drug Administration permits a Schedule I substance to be prescribed, it will automatically be lawful for California physicians and pharmacists to prescribe these substances and it will be lawful in California for the substance to be furnished, dispensed, transported, possessed, or used in accordance with federal law.

 

This new section does not apply to cannabis (because almost identical language in existing H&S § 11150.2 already applies to cannabis.)

 

Note:  Schedule I (H&S § 11054) controlled substances include a list of opiates, heroin, hallucinogens such as LSD, and cocaine base.

 

Health & Safety Code § 11356.6 (New; AB 890):  Fentanyl and Synthetic Opiate Education Program:

 

This new section sets forth standards for the fentanyl and synthetic opiate education program that amended H&S § 11373 requires a court to order a defendant to successfully complete for a conviction of H&S §§ 11350, 11351, or 11352 involving any amount of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof, when probation is granted. Requires that such a program include information on the following:

 

1. How the use of fentanyl and synthetic opiates affects the body and brain;

2. The dangers of fentanyl and other synthetic opiates to a person’s life and health;

3. Factors that contribute to physical dependence;

4. The physical and mental health risks associated with substance abuse;

5. How to recognize and respond to the signs of drug overdose; and

6. The legality of drug testing equipment.

 

The court may allow remote participation in a fentanyl program.

 

The program is required to report an unexcused absence within two business days to the court and to the probation department.

 

Note:  See Health & Safety Code § 11373, below.

 

Health & Safety Code § 11373 (Amended; SB 46) and (Further Amended; AB 890):  Controlled Substance Abuse Programs:

 

The drug treatment requirement for offenders convicted of a controlled substance offense is expanded to offenders sentenced to jail pursuant to P.C. § 1170(h) who have a period of mandatory supervision. Previously, this section applied only to defendants granted probation.

 

A controlled substance offender is now required to successfully complete an education or treatment program, rather than simply to “secure” a program.

 

The section continues to apply to all controlled substance offenses specified in H&S §§ 11000–11651. All references to minors are eliminated, including the provision that if a defendant is a minor, the court must order the parent or guardian to participate in the program.

 

The court is now required to determine a defendant’s ability to pay for a program and permits the court to develop a sliding fee schedule. The court and probation department is required to refer defendants only to a controlled substance education or treatment program that follows specified standards. The program must:

 

1. Be based on the best available current science;

2. Provide educational resources on the pathology of addiction and existing treatment modalities;

3. Have the goal of saving lives, reducing the risks associated with drug use, and reducing the recidivism that occurs from the use of controlled substances; and

4. Include education about how the use of controlled substances affects the body and brain, factors that contribute to physical dependence, how to recognize and respond to the signs of drug overdose, and the dangers of using controlled substances.

 

For defendants sentenced to state prison for a controlled substance offense, or sentenced to jail pursuant to P.C. § 1170(h) without a period of mandatory supervision, the court is required to recommend in writing that the defendant participate in a controlled substance education or treatment program while imprisoned that complies with the standards in H&S § 11373.

 

The county drug program administrator, with input from court representatives, the county probation department, and substance abuse treatment providers, is required to design and implement an approval and renewal process for controlled substance education and treatment programs.

 

AB 890 further amends this section to require that when a defendant is granted probation for a violation of H&S §§ 11350, 11351, or 11352 involving any amount of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof, the court must order the successful completion of a fentanyl and synthetic opiate education program, if one is available. (Carfentanil and benzimidazole opiates are synthetic opiates.) No fee may be charged for this type of program.

 

“Opiate” includes opioid drugs.

 

AB 890 also creates new H&S § 11356.6 to specify standards for a fentanyl and synthetic opiate program.

 

See H&S § 11353.6, above.

 

Health & Safety Code § 11376.5 (Amended) and Health & Safety Code § 11376.6 (New; SB 250):  Immunity for Person Possessing a Controlled Substance, Etc., for Delivery to a Public Health Department or Law Enforcement:

 

New H&S § 11376.6 provides that it is not a crime for a person to possess for personal use a controlled substance or drug paraphernalia if the person delivers the controlled substance to a local public health department or law enforcement “and notifies them of the likelihood that other batches of the controlled substance may have been adulterated with other substances, if known.” This section provides that the identity of the deliverer shall remain confidential.

 

The deliverer may, but shall not be required to, reveal the identity of the individual from whom the deliverer obtained the controlled substance.

 

The purpose of this new section is to encourage people to report contaminated drugs, such as when they discover the presence of fentanyl after using a fentanyl test strip on their drugs.

 

New H&S § 11376.6 is modeled after existing H&S § 11376.5, which is known as the Good Samaritan Law.

 

H&S § 11376.5 has been amended to add a definition of “seeks medical assistance.” “Seeks medical assistance” includes any communication made verbally, in writing, or in the form of data from a health-monitoring device, including, but not limited to, smart watches, for the purpose of obtaining medical assistance.

 

Health & Safety Code § 11455 (New; AB 33; Effective October 13, 2023; and SB 19): The Fentanyl Misuse and Overdose Prevention Task Force:

 

The Fentanyl Misuse and Overdose Prevention Task Force is established, provided there is an appropriation by the Legislature for doing so. Both bills are virtually identical, except that AB 33 was effective on October 13, 2023, as urgent legislation.

 

Both bills direct the task force to do a number of things, including collect and organize data on the nature and extent of fentanyl misuse; identify sources of legal and illicit fentanyl and xylazine activity in California; measure and evaluate the effectiveness of California’s education, prevention, and treatment efforts; evaluate approaches to increase public awareness about fentanyl misuse; and analyze existing statutes for their adequacy in addressing fentanyl misuse and if inadequate, recommend revisions to those statutes.

 

The task force will be co-chaired by the Attorney General and the State Public Health Officer or their designees. The bill sets forth a list of over 20 people who will be on the task force from areas such as government, education, health care, behavioral health, the Judicial Council, and law enforcement. This also includes one representative each from the California District Attorneys Association and the California Public Defenders Association.

 

The task force is required to meet at least once every two months. The first meeting is to be held no later than June 1, 2024. Subcommittees may to be formed and to meet as necessary.

 

The task force is required to submit an interim report to the Governor and Legislature by July 1, 2025, and to submit a final report with recommendations by December 1, 2025.

 

“Fentanyl misuse” is defined as the use of fentanyl or products containing fentanyl in a manner or with a frequency that negatively impacts one or more areas of physical, mental, or emotional health.

 

Note:  According to the DEA’s website, “xylazine” is often known as “tranq” and is an adulterant in illicit drug mixtures. It is commonly encountered in combination with fentanyl. Xylazine is a non-opiate sedative, analgesic, and muscle relaxant only authorized in the United States for veterinary use. It is not currently a controlled substance under the federal Controlled Substances Act or under California’s Controlled Substances Act.

 

Health & Safety Code § 108930 (New, AB 1109):  Sodium Nitrite; Sales to Minors:

 

New Chapter 10.5 in Part 3 of Division 104 of the Health & Safety Code, provides that beginning July 1, 2024, it is unlawful for a person, retailer, or online marketplace to sell sodium nitrite to a person under age 18. It is also unlawful to sell it in concentrations greater than 10% to a person age 18 or older. This new law does not apply to the sale of sodium nitrite to a business.

 

Specifies these defenses to the crime of selling to a minor:

 

1.      The purchaser acknowledged being at least 18 years of age through an effective system that is capable of verifying the age of a purchaser, and the seller took all reasonable precautions and exercised all due diligence to ensure that the product would be sold and delivered to a person at least 18 years of age; or

 

2.      The purchaser acknowledged being at least 18 years of age, and the seller complied with the requirements of the existing California Age-Appropriate Design Code Act (Civil Code 1798.99.28–1798.99.40).

 

Notes: 

 

No criminal or civil liability is provided.

 

Uncodified Section One of this bill provides that it shall be known as “Tyler’s Law,” that sodium nitrite is fatal at high levels of purity, and that sodium nitrite is increasingly being used as a method of suicide. H&S § 108931 (AB 1210) requires warning labels for sodium nitrite and specifies civil penalties. See, below.

 

Per Google: Sodium Nitrite is an odorless, yellowish white, crystalline (sand-like) granule, rod or powder. It is used in heat transfer salts, metal treatment and finishing, as a color fixative and preservative for meats and fish, in pharmaceuticals, and as an antidote for Cyanide poisoning. It is also a powerful oxidizing agent that causes hypotension and limits oxygen transport and delivery in the body through the formation of methemoglobin. Clinical manifestations can include cyanosis, hypoxia, altered consciousness, dysrhythmias, and death.

 

Health & Safety Code § 108931 (New, AB 1210):  Sodium Nitrite; Labeling:

 

New Chapter 10.6 in Part 3 of Division 104 of the Health & Safety Code prohibits a person or entity from selling or offering for sale sodium nitrite at a purity level that exceeds ten percent (10%) without warning labels on both the immediate container and the shipping package. The warning on the container must include “LETHAL TO INGEST” and “The recommended treatment for ingestion of sodium nitrite is intravenous methylene blue.”

 

The warning label on the shipping package is required to say “WARNING: Contains sodium nitrite, which can be fatal if ingested.”

 

A violation of this section is subject to a civil penalty of $10,000 for a first violation, and $50,000 to $100,000 for a second or subsequent violation.

 

A district attorney, city attorney, county counsel, or the Attorney General is authorized to bring a civil action to recover the civil penalty.

 

Notes: 

 

Uncodified Section One of this bill provides the following:

 

1.      Sodium nitrite is a food preservative that is fatal at high levels of purity and can be easily purchased online and in stores by children and teenagers; and

 

2.      Poison control centers throughout the country have reported a 253-percent increase in self-poisoning with nitrites and a 166% increase in fatalities in 2021 as compared to 2018. According to the legislative history of this bill, sodium nitrite is growing in popularity among young people as a method for committing suicide.

 

Per Google: Sodium Nitrite is an odorless, yellowish white, crystalline (sand-like) granule, rod or powder. It is used in heat transfer salts, metal treatment and finishing, as a color fixative and preservative for meats and fish, in pharmaceuticals, and as an antidote for Cyanide poisoning. It is also a powerful oxidizing agent that causes hypotension and limits oxygen transport and delivery in the body through the formation of methemoglobin. Clinical manifestations can include cyanosis, hypoxia, altered consciousness, dysrhythmias, and death.

 

See Marijuana (Cannabis), below.

 

Elder and Dependent Adult Abuse:

 

            See “Victims of Crime,” below:

 

Elections laws:

 

Elections Code § 18560.1 (New; AB 1539):  Multi-State Double Voting:

 

Multi-state double voting is a misdemeanor.  This new section prohibits voting or attempting to vote in an election held in California while at the same time in another election held in another state unless one of the elections is an election in a landowner voting district or any other district for which an elector is not required to be a resident of the district.

 

Punishment:  Up to six months in jail (P.C. § 19) and a fine of up to $1,000 (Elections Code § 18001).

 

Excited Delirium:

 

Evid. Code § 1156.5; H&S Code §§ 24400 through 24403 (New; AB 360): Excited Delirium in Civil Cases:

 

The term “excited delirium” (or anything similar; e.g.; excited delirium syndrome, hyperactive delirium, agitated delirium, and/or exhaustive mania) is eliminated from official recognition and use in any civil actions, and is eliminated as a valid medical diagnosis or cause of death in this state.

 

E.C. § 1156.5(c):  “Excited Delirium” is defined as a term used to describe a person’s state of agitation, excitability, paranoia, extreme aggression, physical violence, and apparent immunity to pain that is not listed in the most current version of the Diagnostic and Statistical Manual of Mental Disorders, or for which the court finds there is insufficient scientific evidence or diagnostic criteria to be recognized as a medical condition.

 

H&S § 24402:  “A peace officer shall not use the term excited delirium to describe an individual in an incident report completed by a peace officer. A peace officer may describe the characteristics of an individual’s conduct, but shall not generally describe the individual’s demeanor, conduct, or physical and mental condition at issue as excited delirium.”

 

H&S § 24403:  “A party or witness (in a civil case) may describe the factual circumstances surrounding the case, including a person’s demeanor, conduct, and physical and mental condition at issue, including, but not limited to, a person’s state of agitation, excitability, paranoia, extreme aggression, physical violence, and apparent immunity to pain, but shall not describe or diagnose such demeanor, conduct, or condition by use of the term excited delirium, or attribute such demeanor, conduct, or physical and mental condition to that term.”

 

Note:  The term “excited delirium” has been around for decades.  Over the last 15 years, it has increasingly been used in attempts to provide an explanation for how a person experiencing severe agitation can die suddenly, suggesting in police use-of-force cases, for instance, that the death in issue was the result of something other than the force used by the police.  For instance, it was used as a legal defense in the 2020 high-profile deaths of George Floyd in Minneapolis; Daniel Prude in Rochester, in New York; and Angelo Quinto, in Antioch, Calif., among others. 

 

However, in reality, “excited delirium,” if a “condition” at all, is one that is not even recognized by the American Medical Association or the American Psychiatric Association. The National Association of Medical Examiners has specifically rejected excited delirium as a cause of death.  The American College of Emergency Physicians has voted to formally disavow its 2009 position paper supporting excited delirium as a diagnosis.

 

Medical professionals are now beginning to recognize that “excited delirium” is, at best, a “symptom” of an underlying condition, and not a “condition” in itself.  Such a “symptom” can be caused by any number of things; e.g., old age, hospitalization, a major surgery, substance use, medication, or infections.  As noted by at least one medical professional (Sarah Slocum, a psychiatrist in Exeter, N.H., who co-authored a review of excited delirium published in 2022), it wouldn’t be any more appropriate to put “excited delirium” on one’s death certificate as the cause of death than it would be to list something more common, such as a “fever.”  It’s what it was that caused the excited delirium that should be the issue, just as it would be in determining what it was that caused a fever that eventually led to someone’s death.

 

H&S Code §§ 24400, 24401, 24402, and 24403 (New; AB 360): Excited Delirium in All Cases:

 

In conjunction with the above Evidence Code provisions, AB 360 also created new Chapter 3.5 in Division 20 of the Health & Safety Code, which provides that excited delirium shall not be recognized as a valid medical diagnosis or cause of death in California.

 

Peace officers are prohibited from using the term “excited delirium” to describe a person in an incident report, but permits the officer to describe the characteristics of the person’s demeanor, conduct, or condition.

 

Also, a coroner, medical examiner, physician, or physician’s assistant is prohibited from stating in any report or death certificate that a cause of death was excited delirium.

 

A local or state government entity or employee is similarly prohibited from using excited delirium as a recognized medical diagnosis or cause of death in any official capacity or communication.

 

“Excited Delirium” is defined as a term used to describe a person’s state of agitation, excitability, paranoia, extreme aggression, physical violence, and apparent immunity to pain that is not listed in the most current version of the Diagnostic and Statistical Manual of Mental Disorders, or for which the court finds there is insufficient scientific evidence or diagnostic criteria to be recognized as a medical condition. Excited delirium also includes excited delirium syndrome, hyperactive delirium, agitated delirium, and exhaustive mania.

 

Note:  The legislative history of this bill asserts that “excited delirium” is not recognized as a valid medical diagnosis or cause of death, and claims that it has racist origins and is only used to describe the death of people in police custody.

 

Firearms:

 

Important Note:  Many of the following statutes are part of Senate Bill 2, or “SB 2.” At least temporarily, implementation of much of SB 2 was put on a temporary hold by a federal district court judge, ruling that this provision (or at least parts of it) violates the Second Amendment. (May v. Bonta; Case 8:23-cv-01696-CJC-ADS Document 45 Filed 12/20/23.)   The issue is whether SB 2 complies with the U.S. Supreme Court ruling in New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. __, 142 S.Ct. 2111, which struck down New York’s “proper cause requirement” requiring an applicant for a license to carry a firearm in public show some special need distinguishable from that of the general community.  The Supreme Court in Bruen held that for a statute seeking to restrict one’s “Right to Bear Arms” to be constitutional under the Second Amendment, that statute must be consistent with the “historical background of the Second Amendment;” an issue that requires some case-by-case analysis. On December, 30, 2023 (Saturday), the Ninth Circuit put a hold on the May v. Bonta decision, allowing the enforcement of the S2 statutes.  The validity of the S2 statutes—although enforceable—is pending in the appellate courts.

 

Financial Code §§ 110000, 110001, & 110002 (New; AB 1587): Firearms Merchant Category Code:

 

A payment card network (e.g., Visa, Mastercard, American Express) that routes transactions between banks and participants for credit, debit, or prepaid transactions, to make the merchant category code (MCC) for firearms merchants available to entities that process credit, debit, or prepaid transactions, is to be created by July 1, 2024.

 

By May 1, 2025, an entity (i.e., a “merchant acquirer”) that processes credit, debit, or prepaid transactions, is required to assign to a firearms merchant the “merchant category code” (MCC) for firearms and ammunition businesses.

 

A “Firearms Merchant” is defined as a business licensed in California as a firearms dealer or ammunition vendor for which the highest sales value is from the combined sale in California of firearms, firearm accessories, and ammunition.

 

A “merchant category code” is a four-digit number used to classify purchases according to the type of merchant where the purchase was made. Among other purposes, they are used to issue rewards based on a consumer’s spending categories. (For example, MCC 5411 is for “Grocery Stores, Supermarkets” and MCC 5941 is for “Sporting Goods Stores.”)

 

The Attorney General has exclusive authority to enforce this new division with written warnings and civil actions. A civil penalty of $10,000 for each violation is provided for.

 

Note:  According to the legislative history of the bill, the goal is to assist financial institutions in flagging suspicious firearms and ammunition purchases.

 

Pen. Code § 171b (Amended; SB 2):  Firearms in a State or Local Public Building, Including Courthouses:

 

The general exception to the crime of bringing a firearm (or other listed weapons) into, or possessing a firearm (or other listed weapons) within, “any state or local building or any or at any meeting required to be open to the public” for persons holding a concealed carry firearm license, is eliminated. This exception is now limited to (among other exceptions; see subd. (b)) persons holding a concealed carry firearm license who possess a firearm within a courthouse and who are a justice, judge, or court commissioner.

 

Pen. Code § 171d (Amended; SB 2):  Firearms on the Grounds of the Governor’s Mansion, etc.:

 

This section is amended by expanding to all firearms, loaded or unloaded, the crime of bringing a loaded firearm into, or possessing a loaded firearm within, or bringing a loaded firearm upon the grounds of the Governor’s Mansion, any other residence of the Governor, the residence of any other constitutional officer, or the residence of any member of the Legislature. The exception for persons holding a concealed carry firearms license is eliminated.

 

Punishment:  Up to six months in jail and/or by a fine of up to $1,000, or by imprisonment pursuant to P.C. § 1170(h). 

 

Pen. Code § 171.7 (Amended; SB 2):  An Undetectable Firearm in a Public Transit Facility:

 

An “undetectable firearm,” as described in existing P.C. § 17280, is added at subd. (b)(9) to the list of weapons and firearms that are prohibited in a public transit facility. This misdemeanor crime of possessing a specified weapon in the sterile area of a public transit facility is expanded by eliminating references to “sterile areas” and making it applicable to the entirety of a public transit facility.

 

Punishment:  Up to six months in jail and/or by a fine of up to $1,000.  (See subd. (d))

 

Pen. Code § 1001.36 (Amended; AB 1412) and (Further Amended; AB 455) (Effective July 1, 2024):  Borderline Personality Disorder, Mental Disorder Diversion, and Firearms:

 

AB 1412 removes “borderline personality disorder” as an exclusion from mental disorder diversion, while retaining “antisocial personality disorder” and “pedophilia” as exclusions, along with a list of specified crimes for which mental disorder diversion is not permitted (i.e., murder; voluntary manslaughter; offenses requiring registration as a sex offender except P.C. § 314 indecent exposure; rape; lewd or lascivious act on a child under age 14; assault with intent to commit rape, sodomy, or oral copulation in violation of P.C. § 220; rape or sexual penetration in concert in violation of P.C. § 264.1; continuous sexual abuse of a child in violation of P.C. § 288.5; and weapons of mass destruction violations in P.C. § 11418(b) and (c)).

 

Note:  The legislative history of AB 1412 claims that treatment for borderline personality disorder reduces the risk of suicide in this population and that this disorder is no more dangerous than mental illnesses covered by this diversion program.

 

AB 455, beginning July 1, 2024, adds a new subdivision (m) permitting the prosecution to request an order from the court that an offender who has been granted mental disorder diversion be prohibited from owning or possessing a firearm until successful completion of diversion, because the offender is a danger to him- or herself or others pursuant to W&I § 8103(i).

 

The prosecution is required to prove by “clear and convincing evidence” that the defendant poses a significant danger of causing personal injury to self or another person by having possession, custody, control, or ownership of a firearm and that the prohibition is necessary to prevent personal injury because less restrictive alternatives either have been tried and found to be ineffective or are inadequate or inappropriate for the circumstances of the defendant.

 

A firearms prohibition order shall be in effect until the defendant has successfully completed diversion or until firearm rights have been restored pursuant to existing W&I § 8103(g)(4).

 

AB 455 also amends W&I § 8103 to add a new subdivision (i) to provide that if a person is found by a court, on or after July 1, 2024, to be prohibited from owning or controlling a firearm because that person is a danger to self or others, and has been granted pretrial mental disorder diversion pursuant to P.C. § 1001.36, the person shall not own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase, any firearm until the person successfully completes diversion or firearm rights are restored pursuant to W&I § 8103(g)(4). (See below)

 

Pen. Code § 11108.2 (Amended; SB 368): Firearms Required to be Entered into the DOJ Automated Firearms System:

 

New P.C. § 26892 and existing P.C. § 29830 are added to the list of firearms reported stolen, lost, found, recovered, surrendered, or held for safekeeping that law enforcement agencies, that are required to be entered into the DOJ Automated Firearms System.

 

P.C. § 26892 requires a licensed firearms dealer to accept a firearm for storage if the firearm is voluntarily and temporarily transferred to the dealer for safekeeping to prevent it from being accessed or used by the transferor or other persons who may gain access to it in the transferor’s household, causing significant danger of personal injury.

 

P.C. § 29830 permits a person who is prohibited from owning or possessing firearms or ammunition to transfer firearms and ammunition to a licensed firearms dealer or to transfer ammunition to a licensed ammunition vendor, for storage during the duration of the prohibition.

 

Pen. Code §§ 14131 (Amended) and 14132 (Repealed; AB 762): Grant Program to Reduce Gun Violence:

 

Several changes are made to the “California Violence Intervention and Prevention Grant Program.”

 

The sunset date of January 1, 2025, was removed, thereby making the grant program permanent.

 

The purpose of this grant program is changed from reducing homicides, shootings, and aggravated assaults to reducing “community gun violence.”

 

Counties that have one or more cities disproportionately impacted by community gun violence within their jurisdiction were added to the list of entities that may receive grants.

 

The maximum amount of a grant is increased from $1.5 million to $2.5 million and sets the length of the grant cycle at a minimum of three years.

 

“Community gun violence” is defined as “intentional acts of interpersonal violence involving a firearm, generally committed in public areas by individuals who are not intimately related to the victim, and which result in physical injury, emotional harm, or death.”

 

Pen. Code § 16520 (Amended; AB 725): Definition of Firearm:

 

Beginning July 1, 2026, the amended section expands the definition of a firearm to include the frame or receiver of a firearm, or a firearm precursor part, for purposes of P.C. §§ 25250–25275, which require that the loss or theft of a firearm be reported to local law enforcement within five days.

 

Notes: 

 

Existing P.C. § 25265 continues to provide that a first or second violation of failing to report is an infraction, and a third or subsequent violation is a misdemeanor.

 

Amended P.C. § 16520 continues to list numerous statutes for which the definition of “firearm” includes frames, receivers, and precursor parts.

 

Pen. Code § 18155 (Amended; AB 301):  Circumstances a Court to Consider In Issuing an Ex Parte Gun Restraining Order:

 

An additional circumstance a court may consider in deciding whether to issue an ex parte gun violence restraining order is expanded to include: “Evidence of acquisition of body armor.”

 

Note:  This section continues to specify a number of circumstances a court is required to consider and a number of circumstances the court may consider, before issuing an ex parte gun violence restraining order.

 

Pen. Code § 23920 (Amended; AB 1621; 2022 Legislation):  Firearms Without a State or Federal Serial Number or Mark of Identification:

 

New subdivision (b) adds the new misdemeanor crime of knowingly possessing any firearm that does not have a valid state or federal serial number or mark of identification.

 

Punishment:  Up to six months in jail and/or a fine of up to $1,000.  (P.C. § 19)

 

Note:  Pen. Code § 23925(b) lists seven exceptions to P.C. § 23920, including in subpara (5): “The possession of a firearm by a person who, before January 1, 2024, has applied to the Department of Justice for a unique serial number or mark of identification, pursuant to Section 29180, and fully complies with the provisions of that section, including imprinting the serial number or mark of identification onto the firearm within 10 days after receiving the serial number or mark of identification from the department.”

 

Pen. Code § 25555 (Amended; SB 368):  Carrying a Concealed Firearm:

 

Exempts new P.C. § 26892 (surrendering a firearm to a licensed firearms dealer for temporary safekeeping to prevent harm; see below) from laws against carrying a concealed firearm. 

 

Pen. Code § 25610 (Amended; SB 2):  Exceptions to the Crime of Carrying a Concealed Firearm:

 

The two specified exceptions to the crime of carrying a concealed firearm (P.C. § 25400) are limited to unloaded firearms only, and limits the exceptions to purposes specified in P.C. §§ 25510– 25595 (movie or TV productions; transportation to and from hunter safety classes, sporting events, target ranges, etc.).

 

The exceptions to P.C. § 25400 that are specified in P.C. § 25610 no longer apply to loaded firearms.  Provides for these amended exceptions:

 

1. The firearm is unloaded, and in a motor vehicle, and is locked in the vehicle’s trunk or in a locked container in the vehicle; or

 

2. The firearm is unloaded, and is carried directly to or from a motor vehicle while in a locked container.

 

Pen. Code §§ 26150 & P.C. 26155 (Amended; SB 2): Concealed Carry Firearms License Requirements:

 

A number of changes were made to the requirements for the issuance of a concealed carry firearms license. 

 

1. Provides that these requirements apply to a license renewal as well as a new license.

 

2. Instead of permitting a sheriff or police chief the discretion to issue a concealed carry firearm license, “may issue” is changed to “shall issue.”

 

3. Eliminates language that required the applicant to be of good moral character and that there be good cause for the issuance of the license. Instead, it is required that the applicant not be a person disqualified to receive such a license, as determined by new P.C. § 26202, and requires that the applicant be at least 21 years of age and present clear evidence of identity and age.

 

4. Continues to require proof of residency and adds that prima facie evidence of residency within a county or city includes, but is not limited to, the address where the applicant is registered to vote or where the applicant files a homeowner’s property tax exemption, or other acts or events that indicate presence in a county or city is more than temporary or transient.

 

5. Adds a requirement that the applicant is the “recorded owner” with DOJ, of the firearm for which the license will be issued.

 

6. Continues to require the completion of a training course as described in existing P.C. § 26165.

 

Pen. Code § 26162: (New; SB 2):  Confirming that an Applicant for a Concealed Carry License is the Owner of the Firearm Reported in the License Application:

 

Before issuing a concealed carry firearms license, a licensing authority (e.g., a sheriff or chief or police) with direct access to the designated DOJ system is required to determine if the applicant is the recorded owner of the firearm reported in the license application. An agency without access to the system must confirm this information with the sheriff of the county in which the agency is located.

 

Pen. Code § 26165 (Amended; SB 2):  Training Course for a Concealed Carry License:

 

The minimum length of the required training course for an applicant for a concealed carry firearms license is increased from 8 hours to 16 hours.

 

Added to the required topics for the course; safe storage of firearms, methods to transport firearms and secure them in vehicles, laws governing where licensees may carry firearms, laws regarding the permissible use of lethal force in self-defense, and at least one hour on mental health and mental health resources.

 

The minimum length of the training course for the renewal of a concealed carry firearms license is increased from four to eight hours.

 

Applicants are required to pass a written examination to demonstrate their understanding of the covered topics.

 

Pen. Code § 26170 (Amended; SB 2):  Concealed Firearms License Requirements for Deputized and Appointed Reserve or Auxiliary Peace Officers:

 

Amendments to the section update the requirements for issuance of a concealed firearms license to a deputized or appointed reserve or auxiliary peace officer (P.C. § 830.6(a) and (b):

 

1. Provides that these requirements apply to a license renewal as well as a new license.

 

2. Instead of permitting a sheriff or police chief the discretion to issue a concealed carry firearm license, “may issue” is changed to “shall issue.”

 

3. Eliminates language that required the applicant to be of good moral character and that there be good cause for the issuance of the license. Requires instead that the applicant not be a person disqualified to receive such a license, as determined by new P.C. § 26202, and requires that the applicant be at least 21 years of age and present clear evidence of identity and age.

 

4. Adds a requirement that the applicant is the “recorded owner” with DOJ of the firearm for which the license will be issued, or, the applicant is authorized to carry a firearm that is registered to the agency for which the licensee has been deputized or appointed to serve as a peace officer.

 

Pen. Code §§ 26175, 26185, & 26190 (Amended; SB 2):  Required Contents of a Concealed Firearms License Application and the Fees to be Charged:

 

A number of changes are made to what an application for a concealed carry firearms license must contain and the fees that may be charged.

 

Pen. Code § 26195 (Amended; SB 2):  Grounds for Denying or Revoking a Concealed Carry Firearms License:

 

The grounds upon which a concealed carry firearms license may be denied or revoked is expanded to add breaching any conditions or restrictions specified in amended P.C. § 26200 (see below), supplying inaccurate or incomplete information in connection with a license application, or being a disqualified person as described in new P.C. § 26202 (see below).

 

Pen. Code § 26200 (Amended; SB 2):  Prohibited Actions By a Person With a Concealed Carry Firearms License:

 

A person with a concealed carry firearms license is prohibited from carrying more than two firearms at one time.  Also, 10 acts are listed that a licensee cannot do while carrying the firearm as authorized by the license:

 

1. Consume an alcoholic beverage, or a controlled substance described in H&S § 11053–11058.

 

2. Be in a place having the primary purpose of dispensing alcoholic beverages for onsite consumption.

 

3. Be under the influence of alcohol, medication, or a controlled substance.

 

4. Carry a firearm not listed on the license or a firearm for which the licensee is not the recorded owner.

 

5. Falsely represent to a person that the licensee is a peace officer.

 

6. Engage in an unjustified display of a deadly weapon.

 

7. Fail to carry the license on the person.

 

8. Impede a peace officer in the conduct of the officer’s activities.

 

9. Refuse to display the license or to provide the firearm to a peace officer upon demand for purposes of inspecting the firearm.

 

10. Violate any federal, state, or local criminal law.

 

Pen. Code § 26202 (Repealed & Added; SB 2):  Background Check Prerequisite to Obtain a Concealed Firearms License:

 

This section, which dealt with the determination by a licensing authority about whether an applicant for a concealed carry firearms license had good cause for the license, is repealed while a wholly new P.C. § 26202 is created that lists a number of circumstances that disqualify an applicant from being issued a concealed carry firearms license, that requires an investigation to determine whether an applicant is a disqualified person, and that requires the licensing authority to provide written notice to an applicant within 90 days of its initial determination about disqualification.

 

The following are the disqualifying circumstances: I.e.: The applicant:

 

1. Is reasonably likely to be a danger to self or others, as demonstrated by anything in the application for a license, or through investigation required by new subdivision (b) (see below), or as shown by the results of the psychological assessment that may be required by the licensing authority pursuant to existing P.C. § 26190.

 

2. Has been convicted of contempt of court under P.C. § 166.

 

3. In the last five years has been subject to a restraining order issued pursuant to a specified code section (e.g., stalking, domestic violence, harassment).

 

4. In the last 10 years has been convicted of an offense listed in P.C. §§ 422.6, 422.7, or 422.75 (hate crimes), or 29805 (which lists a number of misdemeanor convictions that disqualify a person from having firearms for 10 years).

 

5. Has engaged in an unlawful or reckless use, display, or brandishing of a firearm.

 

6. In the last 10 years has been charged with any offense listed in P.C. §§ 290 (sex crimes), 667.5 (violent felonies), 1192.7 or 1192.8 (serious felonies), or 29805 that was “dismissed pursuant to a plea” or dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3rd 754 (a waiver by which the defendant agrees the court may consider a dismissed charge or charges when sentencing the defendant).

 

7. In the last five years has been committed to or incarcerated in county jail or state prison for, or has been on probation, parole, postrelease community supervision, or mandatory supervision for, a conviction involving alcohol, or a controlled substance as described in H&S §§ 11053–11058.

 

8. Is currently abusing alcohol, or controlled substances as described in H&S §§ 11053 through 11058.

 

9. In the last 10 years has experienced the loss or theft of multiple firearms due to the applicant’s lack of compliance with laws regarding storing, transporting, or securing a firearm.

 

10. Failed to report the loss of a firearm as required by P.C. § 25250 or by any other state, federal, or local law requiring the reporting of the loss of a firearm.

 

Note:  P.C. § 25250 requires the loss or theft of a firearm to be reported to local law enforcement within five days.

 

Licensing Authority Is Required to Conduct an Investigation:

 

Subdivision (b) requires a licensing authority (e.g., a sheriff or police chief) to conduct an investigation to determine whether an applicant is a disqualified person. The investigation is required to meet these minimum requirements:

 

1. An in-person interview with the applicant.

 

2. An in-person, virtual, or telephonic interview with at least three character references, at least one of whom must be a person described in P.C. § 273.5(b) (e.g., spouse, former spouse, cohabitant, former cohabitant, fiancé, fiancée, person with whom the applicant has or previously had a dating or engagement relationship, or the mother or father of the applicant’s child).

 

3. A review of publicly available information about the applicant, including publicly available statements published or posted by the applicant.

 

4. A review of all information provided in the application.

 

5. A review of all information provided by DOJ pursuant to P.C. § 26185 (criminal history information and whether the applicant is prohibited from having firearms).

 

6. A review of the information in the California Restraining and Protective Order System accessible through CLETS (California Law Enforcement Telecommunications System).

 

Notification to the Applicant: The licensing authority is required to notify the applicant within 90 days, of its initial determination about whether the applicant is a disqualified person. If the initial determination is disqualification, the applicant must be informed that a court hearing may be requested pursuant to new P.C. § 26206. (See P.C. § 26206, below, for more information.)

 

 

 

Pen. Code § 26205 (Amended; SB 2): Notification to Applicant for a Concealed Carry Firearms License:

 

The time frame for notifying an applicant for a concealed carry firearms license that the license is approved or denied has been expanded, as follows: Within 120 days of receiving the completed application, or within 30 days of receiving information from DOJ about whether the applicant is prohibited from having firearms, whichever is later.

 

Note:  Previously, notification was required within 90 days of the initial application or within 30 days of receiving information from DOJ, whichever was later.

 

Pen. Code § 26206 (New; SB 2):  Legal Requirements for Denying or Revoking a Concealed Firearms License; the Court Evidentiary Hearing:

 

This new section provides that if a concealed carry firearms license is denied or revoked, the licensing authority must notify the applicant about the reason and inform the applicant that a court hearing may be requested.

 

The bill provides that the “people of the State of California shall be the plaintiff in the proceeding and shall be represented by the district attorney.” It also notes that the district attorney has the burden of showing by a “preponderance of the evidence” that the applicant is a disqualified person.

 

The Department of Justice (DOJ) is required to develop a “Request for Hearing to Challenge Disqualified Person Determination.”

 

A hearing must be requested within 30 days of receiving a notice of denial, and requires the hearing to take place in the applicant’s county of residence.

 

A licensing authority is permitted to require an applicant to use and exhaust any process for appealing a denial or revocation that may be offered by the licensing authority.

 

When a court hearing is requested, the court is required to notify the applicant, the licensing authority, DOJ, and the district attorney.

 

The district attorney is required to represent the people of the State of California at the hearing. However, it appears that the district attorney has the option of declining or failing to go forward with the hearing.

 

Subdivision (f) provides that if the district attorney “declines or fails to go forward in the hearing,” or does not meet the burden to show disqualification, the court must order that the applicant is not disqualified and order the licensing authority to proceed with licensing process. Or, if the license had been revoked, the court must order the license reinstated.

 

The DOJ is required to file a criminal history report and the licensing authority to file any records or reports it relied on in denying or revoking the license. Provides that these reports must be disclosed to the applicant and to the district attorney, upon request.

 

The court is permitted to conduct the hearing in camera, at the request of the applicant, if the applicant establishes that confidential information is likely to be discussed during the hearing that would cause harm to the applicant.

 

Declarations, police reports, criminal history information, and any material and relevant evidence that is not excluded under Evidence Code § 352 is admissible at the hearing.

 

The district attorney has the burden of showing by a preponderance of the evidence that the applicant is disqualified from having a concealed carry firearms license. If this burden is met, the court must inform the applicant that a subsequent application may be filed no earlier than two years from the date of the hearing.

 

If an applicant has been denied a license or has a license revoked based on any disqualification ground specified in P.C. § 26202 two or more times in a 10-year period, which was either not challenged by the applicant or was upheld at a hearing, at any subsequent hearing the applicant has the burden of showing by a preponderance of the evidence that the applicant is not a disqualified person.

 

Pen. Code § (Amended; SB 2): Emergency Regulations Adopted by the Attorney General for Concealed Firearms Licenses:

 

The Attorney General is authorized to adopt emergency regulations to implement the new and amended provisions for concealed carry firearms licenses.  Such regulations are exempt from review by the Office of Administrative Law. Such emergency regulations may remain in effect for no more than two years.

 

Pen. Code § 26230 (New; SB 2): Places Where a Person Who Has a Concealed Carry Firearms License is Prohibited From Carrying a Firearm:

 

Twenty-nine categories of places where a person who has a concealed carry firearms license is prohibited from carrying a firearm as listed in this section.

 

This extensive list of prohibited places includes the following:

 

Schools and colleges, preschools and childcare facilities, government buildings, courthouses (unless the person is a justice, judge, or court commissioner), prisons, jails, and detention facilities, hospitals, nursing homes, and medical offices, establishments where intoxicating liquor is sold for consumption on the premises (e.g., a bar), playgrounds and youth centers, parks and athletic facilities, casinos, gambling establishments, and bingo operations, stadiums and arenas, public libraries, airports, amusement parks, zoos, museums, financial institutions, polling places and voting centers, places or areas prohibited by local law, state law, or federal law, churches, synagogues, mosques, or places of worship, unless the place of worship posts a sign stating that license holders are permitted to carry firearms, privately owned commercial establishments that are open to the public (presumably grocery and retail stores, etc.), unless a sign is posted stating that license holders are permitted to carry firearms.

 

Note:  SB 2 also amends P.C. § 171.5 (weapons at airports) and P.C. § 626.9 (firearms at schools) to cross-reference this new section.

 

Pen. Code §§ 26379, 26405, & 26577 (Amended: SB 368):  Exemption for Surrendering a Firearm to a Licensed Dealer:

 

New P.C. § 26892 (surrendering a firearm to a licensed firearms dealer for temporary safekeeping to prevent harm; see below) is specifically exempted from laws against openly carrying an unloaded handgun (P.C. § 26379), carrying an unloaded firearm that is not a handgun (P.C. § 26405), and transferring a firearm (P.C. § 26577).

 

Pen. Code §§ 26720, 26725, & 26800 (Amended; AB 1420):  Compliance Inspections of Firearms Dealers:

 

The existing authority of DOJ is expanded to conduct compliance inspections of firearms dealers at least every three years (P.C. § 26720) and to assess civil fines for violations (P.C. § 26800), to all laws in Title 4 of Part 6 of the Penal Code (P.C. §§ 23500–34370); to any regulations promulgated pursuant to Title 4; to B&P §§ 21628.2, 21636, and 21640 (relating to secondhand dealers); and to any other applicable state law.

 

Note:  Previously, DOJ’s inspection authority was limited to ensuring compliance with P.C. § 16575, which specifies a number of Penal Code sections relating to firearms. Also, DOJ’s authority to assess civil fines was limited to a violation of P.C. §§ 26800–26915 (grounds for forfeiture of a firearms dealer license). Now DOJ may conduct inspections to ensure compliance with all of the provisions and regulations specified above and may assess civil fines for any breach.

 

P.C. § 26725 is amended to add a violation of any applicable state law by a firearms dealer to the list of information (e.g., number of inspections conducted, number of dealers removed from the centralized list, number of dealers found to have violated a provision in P.C. § 16575) that DOJ is required to maintain and to make available upon request.

 

Note also that beginning January 1, 2024, DOJ is required, instead of authorized, to conduct inspections of firearms dealers at least once every three years. AB 228 amended P.C. § 26720 in 2022 to require, instead of permit, inspections. It had a delayed operative date of January 1, 2024.]

 

Pen. Code § 26835 (Amended; AB 1621; 2022 Legislation, and Further Amended; SB 417): One Firearm Purchase Warning, and Suicide Prevention Warning:

 

AB 1621 (2022 Legislation): This bill changed the wording of the warning firearm dealers are required to display within their premises. Instead of stating that only one handgun or semiautomatic centerfire rifle may be purchased within a 30-day period, the warning must state that only one firearm may be purchased within a 30-day period, conforming the required warning to the amendment made by AB 1621 to P.C. § 27535.

 

Beginning January 1, 2024, P.C. § 27535 prohibits making an application to purchase more than one firearm within a 30-day period, instead of prohibiting making an application to purchase more than one handgun or semiautomatic centerfire rifle within a 30-day period.

 

SB 417 (2023 Legislation) expands the suicide prevention warning that firearm dealers are required to post to add a warning that access to a firearm in the home significantly increases the risk of suicide, death, and injury during domestic violence disputes, and unintentional death and traumatic injury to children, household members, and guests. The suicide hotline number is changed to “988”, which is the suicide and crisis lifeline. The suicide warning is required be posted on the counter of one of the main gun displays, or within five feet of the cash register. The warning may not be placed on the floor or on the ceiling of the premises.

 

Pen. Code § 26866 (New; AB 1598) (Effective January 1, 2025):  Required Pamphlet for a Purchaser or Transferee of a Firearm:

 

Beginning January 1, 2025, a firearms dealer is required to provide the purchaser or transferee of a firearm with a copy of the most current version of a pamphlet that new P.C. § 34210 requires DOJ to create in several languages.

 

Note:  P.C. § 4210 requires that the pamphlet explain the “reasons for and risks of owning a firearm and bringing a firearm into a home, including the increased risk of death to someone in the household by suicide, homicide or unintentional injury.”

 

 

Pen. Code § 26892 (New; SB 368):  Firearms Transferred to a Dealer for Safekeeping:

 

A licensed firearms dealer is required to accept a firearm for storage if the firearm is voluntarily and temporarily transferred to the dealer for safekeeping to prevent it from being accessed or used by the transferor or other persons who may gain access to it in the transferor’s household, causing significant danger of personal injury.

 

The dealer is required to notify DOJ within 48 hours of taking possession of a firearm pursuant to this new section.

 

The duration of the loan to that amount of time reasonably necessary to prevent harm. A licensed firearms dealer is permitted to accept a firearm for storage from an individual for any lawful purpose.

 

This new section further provides that it applies only to a firearms dealer who operates a retail premises open to the general public. A dealer who sells only handguns is not required to accept any long guns for storage, and any dealer who sells only long guns is not required to accept any handguns for storage. Limits to 20 the number of firearms a dealer is required to store per calendar year.

 

Notes: 

 

The purpose of this bill is to provide persons who are suicidal or who are living with persons who are suicidal, with a process for removing firearms from their homes.

 

Existing P.C. § 29830 continues to permit a person who is prohibited from owning or possessing firearms or ammunition to transfer firearms and ammunition to a licensed firearms dealer or transfer ammunition to a licensed ammunition vendor, for storage during the duration of the prohibition. This section forth procedures for situations in which a dealer cannot legally return the firearm to the transferor. It also permits the transferor to designate a person to take possession of the firearm. If there is no such person, however, the dealer must deliver the firearm to the sheriff or the chief of police in the county or city where the dealer is located. P.C. § 29830 also permits dealers to charge a reasonable fee for storage.

 

Pen. Code § 26894 (New; SB 368): Firearms Raffles:

 

A licensed firearms dealer is prohibited from offering an opportunity to win “an item of inventory” (presumably referring to firearms, ammunition, etc.) in “a game dominated by chance” (e.g., a raffle).

 

Exempted from this prohibition is a nonprofit public benefit corporation or a mutual benefit corporation that obtains a firearm dealer’s license solely to assist the corporation in conducting auctions, raffles, or similar events at which firearms are auctioned or raffled off to fund the activities of the corporation.

 

Pen. Code § 26920 (New; SB 241):  Annual Training Course and Certification for Firearms Dealers and Their Employees:

 

DOJ is required to create a training course and certification that firearm dealers and their employees must complete annually.  DOJ is to develop the course by February 1, 2026. Beginning July 1, 2026, it is required that every firearm dealer, and every employee who handles or processes the sale, loan, or transfer of firearms or ammunition, annually complete the training and certification.

 

This training must cover a number of topics including: Federal and state laws governing sales and transfers of firearms and ammunition; how to recognize straw purchasers and fraudulent activity; how to recognize indicators that an individual intends to use a firearm for unlawful purposes or self-harm; how to prevent the theft or burglary of firearms and ammunition; how to teach consumers the rules of firearm safety; and how to accurately complete state and federal forms.

 

A test covering the above topics must be at least 20 questions with a passing score of 70%.

 

DOJ must also prepare supplemental written materials that must be made available to all course participants, with those materials to include the following:

 

1. An outline of indicators that a prospective firearm transferee may be involved in gun trafficking or straw purchasing: the customer is accompanied by one or more persons; the customer is communicating with others by phone or other means; the customer is buying multiple firearms; the customer has been the subject of a crime gun trace; the customer has purchased a firearm in the preceding 30 days; and the customer indicates that a firearm is being obtained for another person.

 

2. How to ascertain whether a prospective firearm purchaser is lawfully purchasing a firearm, including by asking questions of the purchaser.

 

3. How to report a suspected fraudulent firearm purchaser to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, and to DOJ.

 

Pen. Code §§ 27531, 27532, 27533, 27534, 27534.1, & 27534.2 (New; SB 452): Microstamping Requirements and Firearms:

 

These new sections require, beginning on January 1, 2028, that semiautomatic pistols sold in California use microstamping technology, but only if DOJ has determined that microstamping components and/or microstamping-enabled semi-automatic firearms are available.

 

P.C. § 27533: A first violation for the unlawful sale of a non-microstamping-enabled pistol is an infraction punishable by a fine of up to $1,000. A second violation is an infraction punishable by a fine of up to $5,000 and may result in the revocation of the firearm dealer’s license. A third violation is a misdemeanor and license revocation is required.

 

Note:  Because no punishment is specified for this misdemeanor crime upon a third violation, P.C. § 19 provides a punishment of up to six months in jail and/or a fine of up to $1,000.

 

Exceptions to the above as listed, such as a pistol manufactured or delivered to a firearms dealer before January 1, 2028, or a transaction conducted through a licensed firearms dealer.

 

P.C. § 27534: The new misdemeanor crime of modifying a microstamping-enabled pistol or microstamping component with the intent to prevent the production of a microstamp.

 

A first violation is punishable by up to six months in jail and/or by a fine of up to $1,000. A second or subsequent offense is punishable by up to one year in jail and/or by a fine of up to $2,000.

 

P.C. § 27534.1: It is unlawful to knowingly or recklessly provide a false or misleading certification that a firearm is microstamping-enabled and authorizes a court to award civil penalties of $10,000 for each firearm in violation and/or injunctive relief sufficient to prevent further violations.

 

P.C. § 27532:   Deadlines for DOJ to make the determination of whether microstamping components and/or microstamping-enabled semi-automatic firearms are available are as follows:

 

1.      By March 1, 2025, DOJ must engage in an investigation to determine the technological viability of microstamping components producing microstamps on spent cartridge casings discharged by a firearm.

 

2.      If DOJ determines that microstamping components are technologically viable, it must, by September 1, 2025, provide written guidance on performance standards for persons and entities engaged in the business of producing microstamping components.

 

3.      By January 1, 2026, DOJ must begin accepting applications for a license to engage in the business of producing microstamping components that meet performance standards.

 

4.      By July 1, 2026, DOJ must provide grants or enter into contracts with one or more entities to produce microstamping components that meet performance standards and to make those components available for sale at a reasonable cost to firearm manufacturers, firearm dealers, and gunsmiths engaged in the business of installing microstamping components.

 

5.      By July 1, 2027, DOJ must determine if microstamping components at commercially reasonable prices are available from licensees and/or if microstamping-enabled firearms are readily available for purchase in California.

 

P.C. § 27531:  Definitions:

 

“Microstamp” is defined as a microscopic array of characters that may be used to identify the specific serial number of a firearm from spent cartridge casings discharged by that firearm.

 

“Microstamping component” is defined as a firing pin or other component part of a semiautomatic pistol that, when installed, produces a microstamp on at least one location of the expended cartridge case each time the pistol is fired.

 

Pen. Code § 27535 (Amended; AB 1621; 2022 Legislation, and Further Amended; AB 1483; Effective January 1, 2025):  Purchasing More Than One Firearm within a 30-day period:

 

AB 1621 (2022 Legislation):  Beginning January 1, 2024, AB 1621 expands this infraction/ misdemeanor crime of making an application to purchase more than one handgun or semiautomatic centerfire rifle within a 30-day period, to prohibit making an application to purchase more than one firearm within a 30-day period. Also added to this section is that it does not authorize a person to make an application to purchase a combination of firearms, completed firearm frames, completed firearm receivers, or firearm precursor parts within the same 30-day period.

 

Note:  P.C. § 16520 was also amended by this bill in 2022 to expand the definition of “firearm” to provide that it includes the frame or receiver of a firearm, a completed firearm frame, a completed firearm receiver, or a firearm precursor part.

 

AB 1483 (2023 Legislation): Beginning January 1, 2025, AB 1483 eliminates the following exception to the prohibition on applying to purchase more than one firearm within a 30-day period: A firearm transaction between two private individuals conducted through a licensed firearms dealer. This bill also adds these exceptions: I.e.; a private-party transaction is where the seller is

 

1. Required under state law or by court order to relinquish firearms; or

 

2. The personal representative of a decedent’s estate or the holder of a decedent’s property or the trustee of a decedent’s trust, and is transferring firearms to the decedent’s heirs, successor, surviving spouse, or beneficiaries.

 

Pursuant to existing subd. (e) of P.C. § 27590, a first violation of  P.C. § 27535 is      an infraction punishable by a fine of $50, a second violation is an infraction punishable by a fine of $100, and a third or subsequent violation is a misdemeanor punishable (pursuant to P.C. § 19) by up to six months in jail and/or a fine of up to $1,000.

 

Pen. Code § 28160 (Amended; AB 1420; and AB 574; Effective March 1, 2025):  A Dealer’s Record of Sale:

 

The information from a purchaser that a firearm “Dealer’s Record of Sale” (DROS) must include is expanded include to add these:

 

1. For firearms transactions on and after September 1, 2025, the purchaser’s email address (AB 1420; Effective 1/1/24).

 

2. Beginning March 1, 2025, a purchaser must answer a yes or no question about whether the purchaser has, within the past 30 days, “checked and confirmed possession of all firearms currently owned or possessed” (AB 574).

 

Note:  The concern here is about lost or stolen firearms. According to the legislative history of the bill, proponents want gun purchasers “to proactively affirm that they have had all of their firearms in their possession within the past 30 days.”

 

Pen. Code § 28220 (Amended; AB 1406): Delayed Delivery of a Firearm by a Firearms Dealer:

 

The authority of DOJ is expanded to delay the delivery of a firearm and adds requirements when a firearm is discovered to be stolen.

 

The DOJ is authorized to notify a firearms dealer to delay the delivery of a firearm if a purchaser’s eligibility to have a firearm cannot be ascertained without further research into the purchaser’s criminal convictions or mental health confinements, or without obtaining additional records.

 

DOJ is also authorized to notify a firearms dealer to delay the transfer of a firearm for up to 30 days after the dealer’s original submission of purchaser information to DOJ if there is a state of emergency pursuant to existing Gov’t. Code § 8558 that has caused DOJ to be unable to obtain and review records in order to determine a purchaser’s firearms eligibility.

 

A new subdivision (d) has been added to require DOJ to do all of the following when a firearm is discovered to be stolen:

 

1. Reject the purchase of the firearm.

 

2. Notify the firearms dealer that the firearm is stolen and that the dealer must retain the firearm until a law enforcement agency is able to retrieve it.

 

3. Notify the law enforcement agency that made the stolen firearm entry in the registry described in existing P.C. § 11106, that the firearm has been located.

 

The reporting agency is required to retrieve the firearm from the dealer and report the firearm’s recovery as provided by existing law.

 

Pen. Code § 29010 (Amended; AB 1089): A Three-Dimensional Printer to Manufacture a Firearm:

 

The prohibition against using a three-dimensional printer to manufacture a firearm, a firearm frame or receiver, or a firearm precursor part, is removed from this section and added to P.C. § 29185 (see below). 

 

P.C. § 29010 continues to prohibit a person from manufacturing more than three firearms in a calendar year unless the person has a California state license to manufacture firearms. A violation of this section remains a misdemeanor crime.

 

Pen. Code § 29185 (Amended; AB 1089):  Computer Numerical Control” (CNC) Milling Machines and the Manufacturer of Firearms:

 

The misdemeanor crimes relating to “computer numerical control” (CNC) milling machines and the manufacturer of firearms, is expanded to include three-dimensional printers.

 

This section applies to the crimes of using a CNC milling machine or a three-dimensional printer to manufacture a firearm, i.e.:

 

Unlawfully selling or transferring a CNC milling machine or three-dimensional printer that has the sole or primary function of manufacturing firearms to a person in California who is not a state-licensed firearms manufacturer; and

 

Possessing, purchasing, or receiving a CNC milling machine or three-dimensional printer that has the sole or primary function of manufacturing firearms.

 

The exception for these crimes has been changed from a federally licensed firearms manufacturer or an importer to a state-licensed firearms manufacturer.   

 

Notes: 

 

A federal firearms manufacturing license is a prerequisite for a state license, pursuant to existing P.C. § 29050.

 

Relinquishment provisions for three-dimensional printers have been added that are almost identical to those for CNC milling machines.

 

The section now provides that a person who is in possession before July 1, 2024, of a three-dimensional printer that has the sole or primary function of manufacturing firearms, is exempt from the crimes of selling, transferring, or possessing a printer, if within 90 days of July 1, 2024, the person does one of the following:

 

1. Sells or transfers the printer to a state-licensed firearms manufacturer;

 

2. Sells or transfers the printer to a person engaged in the business of selling firearms manufacturing equipment to a state-licensed firearms manufacturer;

 

3. Removes the printer from California;

 

4. Relinquishes the printer to a law enforcement agency; or

 

5. Otherwise lawfully terminates possession of the printer.

 

“Three-dimensional printer” is defined as a computer-aided manufacturing device capable of producing a three-dimensional object from a three-dimensional digital model through an additive manufacturing process that involves the layering of two-dimensional cross sections formed of a resin or similar material that are fused together to form a three-dimensional object.

 

Note:  This bill also creates new Civil Code §§ 3273.60–3273.62 to authorize a city attorney, county counsel, or the Attorney General to bring a civil action for specified acts regarding digital firearm manufacturing codes, computer numerical control (CNC) milling machines, and three-dimensional printers.

 

Pen. Code § 29305 (New; AB 97):  Arrests for Offenses Related to Firearms Without a Valid State or Federal Serial Uumber:

 

DOJ is required to collect and report data on arrests for offenses related to firearms without a valid state or federal serial number (commonly referred to as “ghost guns”).

 

DOJ is required to collect and report data on the number of arrests for P.C. §§ 23920 and 29180 and the dispositions of these arrests, including whether charges were filed, dismissals after charging, acquittals, and convictions. Beginning July 1, 2025, DOJ is required to issue an annual report about this data.

 

Note:  P.C. § 23920 is the misdemeanor crime of possessing, buying, receiving, or selling a firearm that has had the name of the maker or model, or a manufacturer’s number or other mark of identification, altered or removed. P.C. § 29180 is the misdemeanor crime of manufacturing, assembling, possessing, or bringing into California, a firearm without a valid serial number or identification mark, and failing to apply to DOJ for a serial number or mark.

 

A sunset date of January 1, 2033, applies this new section.

 

Pen. Code § 29805 (Amended; SB 2 and SB 368): Possession of a Firearm by Persons with Specified Misdemeanors:

 

Pursuant to SB 2, new subdivision (f) was added to P.C. § 29805, prohibiting a person with specified misdemeanor convictions from owning, possessing, or controlling a firearm within 10 years of the conviction.  Specifically, subd. (f) provides as follows:

 

Any person who is convicted on or after January 1, 2024, of a misdemeanor violation of paragraph (5), (6), or (7) of subdivision (c) of Section 25400, paragraph (5), (6), or (7) of subdivision (c) of Section 25850, subdivision (a) of Section 26350, or subdivision (a) of Section 26400, and who, within 10 years of the conviction owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.

 

Note:

 

P.C. § 25400:  Carrying a concealed firearm.

P.C. § 25850:  Carrying a loaded firearm.

P.C. § 26350(a):  Openly carrying an unloaded handgun.

P.C. § 25400(a):  Carrying an unloaded firearm that is not a handgun.

 

Pursuant to SB 368, new subdivision (c) is added providing that any person with specified misdemeanor convictions, with specified exceptions, from owning, possessing, or controlling a firearm within 10 years of the conviction.  Specifically, subd. (c) provides as follows:

 

Except as provided in Section 29855 or subdivision (a) of Section 29800, any person who is convicted on or after January 1, 2024, of a misdemeanor violation of this section, and who, within 10 years of the conviction owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.

 

Note: 

 

P.C. § 29855:  Persons employed as a peace officer who have petitioned the court for relief.

P.C. § 29800(a): Persons convicted of a felony.

Former subd. (c) has been moved to subd. (f).

 

Pen. Code § 29810 (Amended; AB 732):  Prohibitions on the Possession, Ownership, or Control of Firearms; Relinquishment Requirements:

 

A number of changes to the process for relinquishing firearms when an offender is convicted of a crime are made that prohibit firearm possession, ownership, or control.  Persons prohibited from having firearms pursuant to P.C. § 29815 (an express condition of probation prohibiting firearms) is added to those who must relinquish firearms. P.C. § 29810 continues to also apply to offenders prohibited from having firearms pursuant to P.C. § 29800 (felony convictions) or P.C. § 29805 (specified misdemeanor convictions).

 

The relinquishment of a firearm must occur within 48 hours of conviction (was previously within five days of conviction) if the defendant is out of custody, retaining the same timeframe of 14 days of conviction for in-custody defendants to relinquish firearms.

 

The prosecuting attorney is added to the list of entities (the court) to which the probation officer must report before final disposition or sentencing as to whether the defendant has relinquished all firearms identified by the probation officer’s investigation or declared by the defendant on the Prohibited Persons Relinquishment Form. If the report of the probation officer does not confirm firearm relinquishment, the court shall take one of the following actions:

 

1.      If the court finds probable cause after a search warrant request has been submitted pursuant to P.C. § 1524, that the defendant has failed to relinquish firearms, the court must order a search and removal of firearms at any location where there is probable cause to believe the defendant’s firearms are located. The court is required to set a court date to confirm relinquishment of all firearms. The search warrant is to be executed within 10 days pursuant to existing P.C. § 1534(a).

 

Note: Previously, the court had the authority to order a search and removal of firearms, based on probable cause, without a search warrant.

 

2.      If the court finds good cause to extend the time for providing proof of relinquishment, the court must set a court date within 14 days for the defendant to provide proof of relinquishment.

 

3.       If the court finds additional investigation is needed, the court must refer the matter to the prosecuting attorney and set a court date within 14 days for status review.

 

Pen. Code § 29813 (New; AB 732):  Armed Prohibited Persons System; Verification that Required Persons Have Relinquished All Firearms Registered in Their Name:

 

DOJ is required to provide local law enforcement agencies and district attorneys access through an electronic portal to information about individuals residing in their jurisdiction who are listed in the Armed Prohibited Persons System and who have not provided proof of the relinquishment of firearms registered in their name.

 

Each local law enforcement agency is required to designate a person to access or receive this information, and to report to DOJ on a quarterly basis the steps that were taken to verify that individuals on the list are no longer in possession of firearms.

 

Note:  This bill also amends P.C. § 29810, making a number of changes to the process for relinquishing firearms upon conviction of an offense that prohibits firearm possession, ownership, or control.  Uncodified Section One of this bill states that it is the intent of the Legislature that every person convicted of an offense that prohibits firearm ownership relinquish all firearms at the time of conviction and that prosecuting attorneys and courts ensure relinquishment before the final disposition of a criminal case.

 

 

 

 

Pen. Code § 30010 (Amended; AB 303):  The Prohibited Armed Persons File:

 

New subdivision (b) is added to require the Attorney General to provide local law enforcement agencies all of the following information relating to persons listed in the Prohibited Armed Persons File in their jurisdiction:

 

1. Personal identifying information.

2. Case status.

3. Prohibition type or reason.

4. Prohibition expiration date.

5. Known firearms associated to the prohibited person.

6. Information regarding previous contacts with the prohibited person, if applicable.

 

Note:  This section continues to require the Attorney General to provide investigative assistance to local law enforcement agencies to better ensure the investigation of persons who “are armed and prohibited from possessing a firearm.” This bill is intended to improve the communication between DOJ and local officials.

 

Pen. Code § 30012 (Amended; AB 134; Effective July 10, 2023):  DOJ’s Annual Report to on the Armed Prohibited Persons System:

                                    

The due date of DOJ’s annual report to the Legislature on the Armed Prohibited Persons System is changed from April 1 to March 15.

 

Pen. Code § 30370 (Amended; SB 135; Effective September 13, 2023, and SB 2):  Transfer of the Per Transaction Fee:

 

The Attorney General is authorized to adjust the $1 per transaction fee that ammunition purchasers and transferees are charged to cover the cost of DOJ’s regulatory and enforcement activities related to ammunition purchase authorizations. The AG is permitted to adjust the fee “as needed,” but prohibits the fee from exceeding the reasonable regulatory and enforcement costs for operating the program.

 

Pen. Code § 30400 (Amended; SB 883):  Purchasing, Selling, Offering to Sell, or Transferring Ownership of a Firearm Precursor Part; Misdemeanor Punishment:

 

A specific punishment that mistakenly left off when first enacted in AB 1621 in 2022, is added to the crime of purchasing, selling, offering to sell, or transferring ownership of a firearm precursor part that is not a federally regulated firearm precursor part.  The crime is now listed as a misdemeanor that is punishable by up to six months in jail and/or by a fine of up to $1,000.

 

Pen. Code § 30631 (New; AB 355):  Exceptions to the Assault Weapons Crimes for Peace Officer Trainees:

 

An exception is created for the assault weapon crimes in P.C. § 30600 (unlawfully manufacturing, transporting, importing, offering for sale, or giving away an assault weapon) and in P.C. § 30605 (unlawfully possessing an assault weapon) so that peace officer trainees can legally use tactical assault rifles while engaged in firearms training.

 

Exempts from the provisions of P.C. §§ 30600 and 30605 the loan of an assault weapon to, or the possession of an assault weapon by, a person enrolled in the basic Commission on Peace Officer Standards and Training (POST) training course while engaged in firearms training, if the assault weapon does not leave the training facility, and if the person has met minimum peace officer hiring standards and is currently employed by a specified law enforcement agency.

 

Pen. Code § 31360 (Amended; AB 92):  Body Armor:

 

New subdivision (b) is added, making it a new misdemeanor crime to purchase, own, or possess body armor while the offender is prohibited from possessing a firearm under any California law.

 

Punishment: Up to six months in jail and/or a fine of up to $1,000.  (P.C. § 19)

 

The section specifically exempts offenders who are prohibited from possessing firearms under P.C. § 29610 (prohibiting minors from possessing any type of firearm).

 

Judges are required to advise a defendant of the body armor prohibition when advising the defendant of a firearm prohibition. Offenders are required to relinquish any body armor in their possession.

 

Note: Subdivision (a) remains the felony crime of a convicted violent felon purchasing, owning, or possessing body armor.

 

As with the felony body armor crime, as provided under subd. (c), a person convicted of the new misdemeanor body armor crime whose employment, livelihood, or safety depends on the ability to legally possess and use body armor, may file a petition with the local chief of police or sheriff to have the body armor prohibition reduced or eliminated.

 

 

 

 

Pen. Code §§ 31630 & 31640 (Amended; AB 724) and 31640; Further Amended; AB 1598):  Additional Languages and Topics Added to the Firearm Safety Certificate Program:

 

AB 724:  Tagalog, Vietnamese, Korean, Dari, Armenian, traditional Chinese, and simplified Chinese are all added to the list of languages (English and Spanish) for which DOJ must make available items related to the Firearm Safety Certificate program; i.e., the firearm safety instruction manual, audiovisual materials, and the written test for a firearm safety certificate.

 

AB 1598:  Additional topics that the firearm safety test must cover are added:

 

1. The reasons for and risks of owning a firearm, including the increased risk of death to someone in the household by suicide, homicide, or unintentional injury.

 

2. Current law as it relates to eligibility to own or possess a firearm, gun violence restraining orders, domestic violence restraining orders, and privately manufactured firearms.

 

Pen. Code § 31641 (New; AB 1598):  Firearm Safety Certificate Study Guide:

 

DOJ is required to prepare a firearm safety certificate study guide in several languages that explains the information specified in P.C. § 31640 that the firearm safety test must cover. Firearm safety instructors are required to be certified pursuant to existing P.C. § 31635 to provide the study guide to an applicant for a firearm safety certificate prior to the test date. The study guide may be provided as an electronic copy by text or email, or as a physical copy. DOJ is required to offer copies of the study guide at actual cost to certified firearm safety instructors.

 

Pen. Code § 32110 (Amended; SB 368):  Unsafe Handguns; Exceptions:

 

The following is added to the list of circumstances that are exempt from specified provisions related to unsafe handguns (P.C. §§ 31900–31910 and 32000–32030):

 

1. The delivery of a concealable firearm to a licensed firearms dealer for purposes of storage pursuant to new P.C. § 26892 or existing P.C. § 29830.

 

Note:  New P.C. § 26892 requires licensed firearm dealers to accept for temporary storage a firearm that is surrendered to prevent harm, such as suicide. Existing P.C. § 29830 permits a person who is prohibited from owning or possessing firearms to transfer firearms to a licensed firearms dealer for storage during the duration of the prohibition.

 

2.  The delivery of a concealable firearm by a licensed firearms dealer to a person other than the owner pursuant to new P.C. § 26892.

 

Note:  New P.C. § 26892 permits a dealer to transfer a stored firearm to person designated by the firearm’s owner when the owner cannot legally retake possession of the firearm, because, for example, of a conviction that prohibits the owner from having firearms.

 

Pen. Code § 34210 (New; AB 1598; Effective January 1, 2025):  Pamphlet Explaining the Risks of Owning a Firearm:

 

DOJ is required to create a pamphlet in several languages that explains the “reasons for and risks of owning a firearm and bringing a firearm into a home, including the increased risk of death to someone in the household by suicide, homicide or unintentional injury.”

 

DOJ is permitted to solicit input from any reputable association or organization in the development of the pamphlet.

 

DOJ is required to make the pamphlet available on its website in a format so that a firearms dealer can distribute the pamphlet to a prospective firearm purchaser or transferee as required by new P.C. § 26866. (See above.)

 

Pen. Code § 34400 (New; AB 28):  Gun Violence Prevention and School Safety Act:

 

A new Chapter 3 in Division 12 of Title 4 of Part 6 of the Penal Code entitled “Firearm and Ammunition Excise Tax Certificates of Registration” is created, authorizing DOJ to revoke an ammunition vendor license or to remove a firearms dealer or firearms manufacturer from the centralized list maintained by DOJ upon notification from the California Dep’t of Tax and Fee Administration that a seller’s permit for a specified violation of the Revenue & Taxation Code.

 

Notes: 

 

Uncodified Section One of this bill provides that it shall be known as the “Gun Violence Prevention and School Safety Act.”

 

This bill also creates a new Part 16 in Division 2 of the Revenue & Taxation Code (R&T Code §§ 36001–36043) entitled “Firearm, Ammunition, and Firearm Precursor Part Excise Tax.” Pursuant to these new Revenue & Taxation Code sections, beginning July 1, 2024, an excise tax will be imposed upon licensed firearms dealers, firearms manufacturers, and ammunition vendors at the rate of 11% of gross receipts from the retail sale of firearms, firearm precursor parts, and ammunition, except when sold to active or retired peace officers or to a law enforcement agency. These sections provides that the money raised from this tax will go to the Board of State and Community Corrections to fund the California Violence Intervention and Prevention (CalVIP) Grant Program; to the State Dep’t of Education to enhance school safety by addressing risk factors for gun violence affecting students in kindergarten through grade 12; to the Judicial Council to support a court-based firearm relinquishment grant program; to DOJ to fund a “victims of gun violence grant program,” and to support activities to inform firearm and ammunition purchasers, and firearm owners, about gun safety laws and responsibilities; to the Office of Emergency Services to provide counseling and trauma-informed support services to direct and secondary victims of mass shootings and gun homicides; and to the Firearm Violence Research Center at the University of California at Davis.

 

Welf. & Inst. Code § 8103 (Amended; AB 455): Persons Found to be a Danger to Self or Others and Prohibition From Possessing Firearms:

 

Adds a new subdivision (i) is added to provide that if a person is found by a court, on or after July 1, 2024, to be prohibited from owning or controlling a firearm because that person is a danger to self or others, and has been granted pretrial mental disorder diversion pursuant to P.C. § 1001.36, the person shall not own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase, any firearm until the person successfully completes diversion or firearm rights are restored pursuant to W&I § 8103(g)(4).

 

The court is required to notify DOJ of a firearms prohibition order within one court day after issuing the order. The court is also required to notify DOJ that the person has successfully completed diversion, within one court day after completion.

 

The pre-exiting W&I § 8103(i) is re-lettered to subdivision (j) and continues to provide that a person who owns, possesses, controls, purchases, receives, or attempts to purchase or receive a firearm or other deadly weapon in violation of W&I § 8103 is punishable by a jail sentence pursuant to P.C. § 1170(h) (16 months, two years, or three years), or by up to one year in county jail.

 

Note:  This bill also amends P.C. § 1001.36 (mental disorder diversion; see above) to permit the prosecution to request an order from the court that an offender who has been granted mental disorder diversion be prohibited from owning or possessing a firearm until successful completion of diversion, because the offender is a danger to self or others.

 

Note:  Existing W&I § 8103(g)(4) permits a prohibited person to petition the court to allow firearms and requires that the district attorney represent the people of California in these hearings. It is the petitioner’s burden to prove by a preponderance of the evidence that the petitioner is likely to use firearms in a safe and lawful manner. Even if the petitioner meets this burden, the court is not required to permit firearms. Instead, the court “may” order that the person is permitted to own, control, receive, possess, or purchase firearms.

 

Note:  New subdivision (i) in Section 8103 contains a cross-reference to subdivision (m) in P.C. § 1001.36 that appears to be a drafting error. The language provides “has been granted pretrial mental health diversion pursuant to subdivision (m) of Section 1001.36 of the Penal Code …” Subdivision (m) simply permits the prosecution to request that the court prohibit a person granted diversion from having firearms. The cross-reference should simply be to P.C. § 1001.36 without a subdivision designation. The drafting error does not change the meaning or substance of the provision, which is that a person who has been found to be a danger to self or others and has been granted P.C. § 1001.36 diversion, cannot have firearms until the successful completion of diversion, or until firearm rights are restored pursuant to W&I § 8103(g)(4).

 

Good Samaritan Laws:

 

Health & Safety Code § 1799.113 (New; AB 1166):  Emergency Treatment for Opioid Overdose:

 

Any person who, in good faith and not for compensation, renders emergency treatment at the scene of an opioid overdose or suspected opioid overdose by administering an opioid antagonist, such as naloxone hydrochloride, is entitled to qualified immunity from civil liability. Such a person is not liable for civil damages resulting from an act or omission related to the rendering of emergency treatment.

 

There is no immunity, however, for conduct that constitutes gross negligence or willful or wanton misconduct.

 

Note:  See existing H&S Code § 1799.102, which provides qualified immunity for rendering emergency medical or non-medical care at the scene of an emergency, and H&S Code §§ 11870, 11871, and 11872 (New; SB 234), providing for opioid antagonist on premises of stadiums, concert venues, and amusement parks.

 

Health & Safety Code §§ 11870, 11871, and 11872 (New; SB 234):  Opioid Antagonist on Premises of Stadiums, Concert Venues, and Amusement Parks:

 

New Chapter 16 in Part 2 of Division 10.5 of the Health & Safety Code, entitled “Opioid Antagonist on Premises of Stadiums, Concert Venues, and Amusement Parks,” is created, requiring stadiums, concert venues, and amusement parks to maintain unexpired doses of naloxone hydrochloride or another opioid antagonist on their premises at all times. At least two employees who are aware of the location of the opioid antagonist is required.

 

A person who, in good faith administers naloxone hydrochloride or another opioid antagonist by nasal spray or by auto-injector on the premises of a stadium, concert venue, or amusement park to a person who appears to be experiencing an opioid overdose is exempted from criminal and civil liability. This exemption also applies to an employee who renders aid. Also, the stadium, concert venue, or amusement park, and their employees, when opioid overdose aid is rendered on the premises are exempted from liability.

 

If the person rendering aid is not an employee of the stadium, concert venue, or amusement park, or an employee of the entity that owns the location, there is no exemption from civil or criminal liability for gross negligence or willful and wanton misconduct.

 

Lastly, stadiums, concert venues, amusement parks, and their employees, have no obligation to administer an opioid antagonist on the premises and are not civilly or criminally liable for failing to identify an opioid overdose.

 

Hate Crimes:

 

Pen. Code § 422.87 (Amended; AB 499):  Mandatory Hate Crimes Policy by Law Enforcement:

 

Law enforcement agencies are required to (as opposed to “may”) adopt a hate crimes policy, with a deadline date of July 1, 2024. As amended, state law enforcement agencies are added to this requirement.

 

Previously, this section provided that a local law enforcement agency “may” adopt a hate crimes policy, and that any local agency that updated a hate crimes policy or adopted a new policy must include specified topics in that policy, such as definitions relating to hate crimes, information about bias motivation, the underreporting of hate crimes, a protocol for reporting hate crimes to DOJ, and a checklist of first responder responsibilities. Now, as amended, all local and state law enforcement agencies are required to adopt a hate crimes policy by July 1, 2024. Also as amended, a schedule of the hate crimes training as required by P.C. § 13519.6, and any other hate crimes or related training the agency may conduct.

 

Note:  This bill also amends P.C. § 13023, below, relating to the providing of hate crimes policies and brochures to DOJ, and P.C. § 13519.6, relating to hate crimes training for law enforcement. See below, under “Law Enforcement,” for more information.

 

 

Pen. Code § 13023 (Amended; AB 449):  Hate Crime Procedures to be Reported to DOJ:

 

The Attorney General is required to direct local and state law enforcement agencies to report information about hate crimes (policies and brochures) to DOJ in a manner to be prescribed by the Attorney General. The Attorney General is then required to review the formal hate crimes policies that amended P.C. § 422.87 requires all local and state law enforcement agencies to adopt by July 1, 2024, and the hate crimes brochures that existing P.C. § 422.92 requires local and state law enforcement agencies to make available. A tiered schedule of when law enforcement agencies must submit their hate crimes materials to DOJ is established as follows:

 

By January 1, 2025, and every four years thereafter: Law enforcement agencies in the counties of Los Angeles, Orange, San Luis Obispo, Santa Barbara, and Ventura.

 

By January 1, 2026, and every four years thereafter: Law enforcement agencies in the counties of Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San Mateo, Santa Clara, Santa Cruz, Solano, and Sonoma.

 

By January 1, 2027, and every four years thereafter: Law enforcement agencies in the counties of Colusa, Glenn, Lassen, Modoc, Nevada, Plumas, Shasta, Sierra, Siskiyou, Sutter, Tehama, Trinity, Yuba, Alpine, Amador, Calaveras, El Dorado, Placer, Sacramento, San Joaquin, Stanislaus, Tuolumne, and Yolo, and special districts of the San Francisco Bay Area Rapid Transit District, California Highway Patrol, the Dep’t of State Hospitals, and the state park system. 

 

By January 1, 2028, and every four years thereafter: Law enforcement agencies in the counties of Fresno, Kern, Kings, Madera, Mariposa, Merced, Tulare, Imperial, Inyo, Mono, Riverside, San Bernardino, and San Diego.

 

Note:  This bill also amends P.C. § 422.87 to require all local and state law enforcement agencies to adopt a hate crimes policy by July 1, 2024, and amends P.C. § 13519.6, relating to hate crimes training for law enforcement. For more information see

 

See Pen. Code § 13519.6 (Amended; AB 449):  Consultation with Hate Crime Subject-Matter Experts, under Law Enforcement, below.

 

 

 

 

Homeless Issues:

 

Pen. Code §§ 11163.70, 11163.71, 11163.72, 11163.73, & 11163.74 (New; AB 271):  Homeless Death Review Committees:

 

New Article 2.4 to Chapter 2 of Title 1 of Part 4, entitled “Homeless Death Review Committees,” has been added to the Penal Code. These new provisions permit a county to establish a homeless death review committee to assist local agencies in identifying the root causes of the deaths of homeless people, and to facilitate communication among persons who perform autopsies and the various persons and agencies involved in supporting the homeless population.

 

A county is authorized to develop a protocol for performing autopsies on the homeless, in order to assist coroners in identifying cause and mode of death.

 

Oral and written communications, and documents shared within or produced by a homeless death review committee, are confidential, as are oral and written communications provided by a third party to a homeless death review committee.

 

The disclosure of the following types of information to a homeless death review committee is authorized; medical information, mental health information, criminal history information, information provided to probation officers in the course of their duties, public social services information, Medi-Cal information, reports of suspected elder or dependent adult abuse, and reports of physical injuries inflicted by a firearm or that resulted from assaultive or abusive conduct.

 

A homeless death review committee is authorized to disclose its recommendations if a majority of the committee agrees to do so. It is required that information gathered by a homeless death review committee and recommendations made by it shall be used by a county to develop education and prevention strategies to improve services for the homeless population.

 

Homicide:

 

See “Abortions,” above, under Pen. Code § 187 (Amended; SB 345):  Abortion Exception for Homicides.

 

In-Vehicle Cameras:

 

Bus. & Prof. Code §§ B&P 22948.50, 22948.51, 22948.52, 22948.53, 22948.54, 22948.55, 22948.56, 22948.57, 22948.58 & 22948.59 (New; SB 296):  Regulation of In-Vehicle Cameras:

 

New Chapter 36 in Division 8 of the Business and Professions Code regulates new vehicles manufactured with in-vehicle cameras installed, requiring dealers to provide a purchaser with a written or electronic notice that the vehicle has an in-vehicle camera, and to obtain the purchaser’s signature on the disclosure. 

 

An “in-vehicle camera” is defined as a device included as part of a vehicle by the manufacturer that is designed to, or is capable of, recording images or video inside the cabin of the vehicle. These requirements do not apply to cameras installed in vehicles that are primarily for commercial use, such as buses, motortrucks, and truck tractors.

 

The use of recordings from in-vehicle cameras are restricted, such as by prohibiting any image or video recording from being used for advertising or sold to a third party. An image or video recording is prohibited from being shared with a third party unless the user consents or the images or recordings are shared only to the extent necessary to diagnose, service, or repair the in-vehicle camera, or if shared pursuant to a records request pursuant to P.C. § 832.7(b) (peace officer and custodial officer personnel records), Gov’t. Code § 7923.625 (law enforcement records relating to a critical incident), or Code of Civ. Proc. §§ 2016.010–2036.050 (the Civil Discovery Act).

 

The retention, downloading, and accessing of images and recordings is restricted, such as when the images and recordings are retrieved or shared without the user’s permission such as for court or arbitration proceedings or to facilitate an emergency medical response to a motor vehicle crash.

 

A district attorney or the Attorney General may bring a civil action for a violation of this chapter. A court is permitted to issue injunctions and make any orders or judgments necessary to prevent a violation of this chapter.

 

Up to $2,500 civil penalty may be imposed for each vehicle equipped with an in-vehicle camera that is sold or leased in violation of this chapter.

 

Note:  According to the legislative history of this bill, in-vehicle cameras serve important safety functions, such as warning drivers who appear to be falling asleep or who are distracted, and they provide information about the cause of a crash. There are privacy concerns because the cameras capture conversations and facial and body images.

 

Juveniles:

 

Welf. & Insti. Code § 208.55 (New; AB 134; Effective July 10, 2023): Sight and Sound Contact in Juvenile Facilities:

 

A juvenile in a juvenile facility is permitted to have sight or sound contact with other juveniles.

 

An adult detained in a juvenile facility, however, is prohibited from having sight and sound contact with juveniles under 18 years of age.

 

“Sight or sound contact” is defined as any physical, clear visual, or direct verbal contact that is not brief and inadvertent.

 

“Juvenile” is defined as a person who is any of the following:

 

1. Under age 18;

 

2. Under the maximum age of juvenile court jurisdiction who is not currently an incarcerated adult; or

 

3. Whose case originated in the juvenile court and is subject to W&I Code § 208.5 (e.g., a person who is over age 18, in custody, and still subject to the jurisdiction of the juvenile court.)

 

“Incarcerated adult” is defined as a person age 18 or older who is not subject to the jurisdiction of the juvenile court, and who is in custody for a criminal charge or has been convicted of a criminal offense.

 

Note:  Uncodified Section One of this bill sets forth that the Legislature’s intent with new W&I Code § 208.55 is to clarify the circumstances in which youth who are age 18 or older may have sight or sound contact with youth under 18 years of age when detained in juvenile halls, special purpose juvenile halls, ranches, camps, and secure youth treatment facilities.

 

Welf. & Insti. Code § 625.7 (New; AB 2644; 2022 Legislation; Effective July 1, 2024): Interrogation Tactics of Juveniles:

 

Beginning July 1, 2024, a law enforcement officer is prohibited from using threats, physical harm, deception, or psychologically manipulative interrogation tactics during the custodial interrogation of a minor age 17 and younger. This applies to both felony and misdemeanor cases.

 

Exception: When the law enforcement officer reasonably believed the information sought was necessary to protect life or property from imminent threat, and the questions asked were limited to those that were reasonably necessary to obtain information related to that threat.

 

An officer is permitted to use a lie detector test if the test is voluntary, and was not obtained through the use of threats, physical harm, deception, or psychologically manipulative interrogation tactics, and the officer does not suggest that the lie detector results are admissible in court or misrepresent the lie detector results to the minor.

 

“Deception” is defined as including, but not being limited to, the knowing communication of false facts about evidence, misrepresenting the accuracy of facts, or false statements regarding leniency.

 

“Psychologically manipulative interrogation tactics” is defined as including but not being limited to, the following:

 

1. “Maximization and minimization” techniques, such as scaring or intimidating a minor by repetitively asserting guilt despite denials; or exaggerating the magnitude of the charges or the strength of the evidence, including suggesting the existence of evidence that does not exist; or minimizing the moral seriousness of the offense, such as falsely communicating the conduct is justified, excusable, or accidental;

 

2. Making direct or indirect “promises of leniency,” such as indicating the minor will be released if he or she cooperates; or

 

3. Employing the “false” or “forced” choice strategy, where the minor is encouraged to select one of two options, both incriminatory, but one is characterized as morally or legally justified or excusable.

 

Welf. & Insti. Code §§ 635 & 636 (Amended; SB 448): In-Custody Minors and Home Supervision:

 

Both sections are amended to prohibit a court from detaining a minor in custody based solely on the minor’s county of residence. A minor is to be “be given equal consideration for release on home supervision” pursuant to W&I § 628.1, which may include electronic monitoring, regardless of whether the minor lives in the county where the offense occurred.

 

A juvenile court has authority to order a minor placed on home supervision, with or without electronic monitoring, regardless of the minor’s county of residence.      

 

Notes: 

 

W&I §§ 635(a) and 636(a) continue to provide that a minor be released from custody unless the minor has violated an order of the juvenile court or has escaped from the commitment of the juvenile court, or it is a matter of immediate and urgent necessity for the protection of the minor or reasonably necessary for the protection of the person or property of another that the minor be detained, or, it is likely the minor will flee to avoid the jurisdiction of the court.

 

W&I § 635(b)(1) continues to provide that the circumstances and gravity of the offense may be considered “in conjunction with other factors,” in making a release decision.

 

W&I § 636(a) continues to provide that if a court makes the decision to detain, the detention cannot exceed 15 judicial days.

 

Welf. & Insti. Code §§ 707 (Amended), 707.2 (New), & 707.5 (Amended; SB 545): Transfer of Juvenile Cases to Adult Court:

 

W&I Code § 707 is amended to require (instead of permit) a court to give weight to specified factors when it considers the five criteria for deciding whether to transfer a juvenile case to adult court. (I.e.; “may give weight” is changed to “shall give weight.”) The five criteria are (1) the degree of criminal sophistication exhibited by the minor, (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction, (3) the minor’s previous delinquent history, (4) the success of previous attempts by the juvenile court to rehabilitate the minor, and (5) the circumstances and gravity of the alleged offense.

 

Additional factors are added that the court is required to give weight to when considering the degree of criminal sophistication exhibited by the minor:  I.e.; (1) the minor’s involvement in the child welfare or foster care system, and (2) the status of the minor as a victim of human trafficking, sexual abuse, or sexual battery.

 

The court is now required to consider evidence that the person against whom the minor is accused of committing an offense trafficked, sexually abused, or sexually battered the minor, when the court considers the circumstances and gravity of the offense the minor committed.

 

New W&I § 707.2 provides that even if a court finds at a transfer hearing that a juvenile offender is not amenable to rehabilitation under the jurisdiction of the juvenile court, the court is prohibited from transferring the case to adult court if it receives evidence that the minor was trafficked, sexually abused, or sexually battered by the alleged victim prior to or during the commission of the alleged offense, unless the court finds by “clear and convincing evidence” that the alleged victim did not traffic, sexually abuse, or sexually batter the minor.

 

W&I § 707.5 is amended to permit a juvenile case that has already been transferred to adult court to be returned to juvenile court if the court receives evidence that the minor was trafficked, sexually abused, or sexually battered by the alleged victim prior to or during the commission of the offense, unless the court finds by clear and convincing evidence that the alleged victim did not sexually abuse, sexually batter, or traffic the minor prior to or during the offense.

Added to this section is the following:  “This paragraph shall be construed to prioritize the successful treatment and rehabilitation of minor victims of human trafficking and sex crimes who commit acts of violence against their abusers. It is the intent of the Legislature that these minors be viewed as victims and provided treatment and services in the juvenile or family court system.”

 

Note:  Uncodified Section 4 of this bill provides that “[t]o the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase.”

 

Law Enforcement:

 

Family Code § 6228 (Amended; SB 290):  Reports, Recordings, Photos, and Exhibits Available to Victims:

 

Copies of photographs of a victim injuries and property damage, and any other photos noted in a police report, along with copies of 911 recordings if any, is added to the list of items (incident report face sheets and incident reports) that a local or state law enforcement agency is required to provide free of charge to a victim or victim’s representative. This applies to domestic violence, sexual assault, stalking, human trafficking, and elder/dependent adult abuse cases.

 

The time limit for victims to request this information from law enforcement has been extended from two years to five years after the date of completion of the incident report.

 

The section continues to require that information requested pursuant to this section be made available no later than five working days after the request, unless there is good cause to delay availability to 10 working days after a request.

 

Gov’t. Code § 12525.5 (Amended; AB 2773; 2022 Legislation):  Annual Reports Re: Pedestrian Stops:

 

The requirement of local and state law enforcement agencies to report annually to the Attorney General on all stops conducted by the agency is clarified to apply to pedestrian stops, traffic stops, and any other kind of stop.

 

The list of additional information that must be reported is expanded to include: “The reason given to the person stopped at the time of the stop.”

 

See also new V.C. § 2806.5 (“Vehicle Code Violations,” below), requiring that a peace officer making a traffic or pedestrian stop, before engaging the person stopped in questioning related to a criminal investigation or a traffic violation, tell the person stopped the reason for the stop, unless the officer has a reasonable belief that withholding the reason for the stop is necessary to protect life or property from imminent threat.

 

Pen. Code § 832.7 (Amended; AB 134):  Peace Officer Personnel Records and Officer Misconduct Investigations:

 

The section that deals with the confidentiality of peace officer personnel records has been amended to add the Commission on Peace Officer Standards and Training (POST) to the list of entities (local law enforcement agencies, grand juries, district attorney offices, and the Attorney General) that are authorized to conduct investigations into peace officer misconduct.

 

Pen. Code § 13510.6 (New; AB 443; Effective January 2, 2026):  Determination of Biased Conduct by Law Enforcment Officers:

 

The Commission on Peace Officer Standards & Training (POST) to establish a definition of “biased conduct” that includes all of the following:

 

1. Conduct engaged in by a peace officer in any encounter with the public, first responders, or employees of a criminal justice agency that is motivated by bias toward any person’s protected class or characteristic, whether actual or perceived.

 

2. Biased conduct may result from implicit or explicit biases.

 

3. Conduct is biased if a reasonable person with the same training and experience would conclude, based upon the facts, that the officer’s conduct resulted from bias towards that person’s membership in a protected class.

 

4. An officer need not admit biased or prejudiced intent for conduct to be determined to be biased conduct.

 

POST is also required to develop guidance for local law enforcement departments on performing effective internet and social media screenings of officer applicants. This guidance is required to include strategies for identifying applicant social media profiles and for searching for, and identifying, content indicative of potential biases, such as affiliation with hate groups.

 

A law enforcement agency that is investigating a complaint of any law enforcement activity described in existing P.C. § 13519.4(e) (traffic or pedestrian stop, actions during a stop, questions, frisks, consensual or non-consensual searches, seizure of property, removing vehicle occupants during a traffic stop, issuing a citation, or making an arrest) is required to determine if racial profiling occurred.

 

Note:  Existing P.C. § 13519.4(e) defines “racial or identity profiling” as the consideration of, or reliance on, to any degree, actual or perceived race, color, ethnicity, national origin, age, religion, gender identity or expression, sexual orientation, mental disability, or physical disability in deciding which persons to subject to a stop or in deciding upon the scope or substance of law enforcement activities following a stop, except that an officer may consider and rely on characteristics listed in a specific suspect description.

                        

Penal Code §§ 13510.8, 13510.85, & 13510.9 (Amended; SB 449):  Police Decertification Act:

 

The Police Decertification Act of 2021 (SB 2), which became effective on January 1, 2022, has been amended as follows:

 

Adds that the Commission on Peace Officer Standards & Training (POST) may cancel the certificate or proof of eligibility of a peace officer if POST determines that there was fraud or misrepresentation made by a peace officer applicant at any time during the application process.

 

The Act continues to permit revocation of certification as a peace officer if the person has become ineligible to hold office as a peace officer, and continues to permit suspension or revocation of certification if the person has been terminated for cause from employment as a peace officer or engaged in specified serious misconduct.

 

POST is authorized to consider a peace officer’s prior conduct and service record in determining whether suspension (in addition to just “revocation”) is appropriate for serious misconduct. Previously, this provision referenced “revocation” only.

 

The Peace Officer Standards Accountability Division is authorized to redact records introduced at hearings of the Peace Officer Standards Accountability Board and reviewed by POST (which are public records) to remove personal identifying information, to preserve the anonymity of whistleblowers, complainants, victims, and witnesses, and to protect confidential medical and financial information.

 

POST is further authorized to withhold from a peace officer information about peace officer misconduct if POST determines that disclosure may jeopardize an ongoing investigation, put a victim or witness at risk of harm or injury, or may otherwise create a risk of harm or injury that outweighs the interest in disclosure. Information released to a law enforcement agency that has been withheld from the subject peace officer must be kept confidential by the receiving agency.

 

Pen. Code § 13519.6 (Amended; AB 449):  Consultation with Hate Crime Subject-Matter Experts in Establishing Guidelines and Training for Law Enforcement:

 

Commission on Peace Officer Standards & Training (POST) is required to consult with subject-matter experts when hate crimes guidelines and training for law enforcement officers are updated.

 

The guidelines developed by POST are required to include a model hate crimes policy framework for use by law enforcement agencies in adopting a hate crimes policy.

 

An additional requirement is added for the model hate crimes policy framework; i.e., that a list of all requirements that P.C. § 422.87 or any other law mandates a law enforcement agency to include in its hate crimes policy.

 

Notes: 

 

P.C. § 422.87 specifies a number of topics a law enforcement agency’s hate crimes policy must include.  See “Hate Crimes,” above.

 

This bill also amends P.C. § 422.87 to require all local and state law enforcement agencies to adopt a hate crimes policy by July 1, 2024, and amends P.C. § 13023 to list dates by which law enforcement agencies must submit their hate crimes policies and brochures to DOJ.  See Pen. Code § 422.87:  Mandatory Hate Crimes Policy by Law Enforcement, and Pen. Code § 13023: Hate Crime Procedures to be Reported to DOJ, under “Hate Crimes,” above.

 

Pen. Code § 13665 (Amended; AB 994):  Posting of Booking Photos on Social Media by Law Enforcment:

 

Police and sheriff’s departments are required, when sharing on social media the booking photo of a person arrested for any crime (violent or non-violent), to use the name and pronouns given by the arrestee. Police and sheriffs are permitted to include legal names and known aliases if “using the names or aliases will assist in locating or apprehending the individual or reducing or eliminating an imminent threat to an individual or to public safety or an exigent circumstance exists that necessitates the use of other legal names or known aliases of an individual due to an urgent and legitimate law enforcement interest.”

 

Police and sheriff’s departments are required to remove any booking photo from its social media page within 14 days unless one of these circumstances exist:

 

a. The suspect is a fugitive or an imminent threat to an individual or to public safety, and releasing the suspect’s image will assist in locating or apprehending the suspect or reducing or eliminating the threat; or

 

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

 

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

 

Note:  This section continues to require that one of the above three circumstances must exist before law enforcement may share on social media the booking photo of a person arrested for a non-violent crime, i.e., a crime not specified in P.C. § 667.5(c). Also, law enforcement may continue to share on social media the booking photo of a person arrested for a violent crime (P.C. § 667.5(c)) regardless of the existence of any of these three circumstances, but must remove the photo within 14 days unless one of the above three circumstances exists at that time. The name and pronoun requirements of the bill, and the amended removal provisions, apply retroactively to any booking photo shared on social media. Therefore, these new provisions will apply on January 1, 2024, to all booking photos already posted to social media.

 

Veh. Code § 2806.5 (New; AB 2773):  Requirement That a Peace Officer State the Reason for a Traffic Stop Before Engaging in Any Questioning Related to a Criminal Investigation:

 

Pursuant to this new Vehicle Code section, a peace officer making a traffic or pedestrian stop must, before engaging in questioning related to a criminal investigation or traffic violation, state the reason for the stop.  An exception applies if the officer has a reasonable belief that withholding the reason for the stop is necessary to protect life or property from imminent threat.

 

The officer is also required to document the reason for the stop on any citation or police report resulting from the stop.

 

Note: This bill also amends Gov’t. Code § 12525.5 to add “The reason given to the person stopped at the time of the stop” to the types of information that local and state law enforcement agencies are required to report annually to the Attorney General on all stops conducted by the agency. 

 

Marijuana (Cannabis):

 

Bus. & Prof. Code § 26010.6 (New; AB 128) (Effective July 10, 2023):  The Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA):

 

MAUCRSA is amended to require the Dept. of Cannabis Control to submit fingerprints to DOJ for criminal history checks on employees, prospective employees, contractors, and subcontractors whose duties include access to criminal offender record information or access to cannabis, cannabis products, or other controlled substances. The Dept. is also required to submit to DOJ fingerprints for all peace officer employees or prospective peace officer employees of the Dept. of Cannabis Control.

 

Bus. & Prof. Code §§ 26010.6, 26050, & 26051.5 (Amended; AB 128, AB 152) (Effective July 10, 2023, and September 13, 2023, respectively): The Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA):

 

B&P § 26010.6 is clarified to eliminate AB 128’s requirement that the Dept. of Cannabis Control request subsequent arrest notification. Also added a requirement that the Dept. of Cannabis Control to submit fingerprints to DOJ for criminal history checks on employees, prospective employees, contractors, and subcontractors whose duties include access to criminal offender record information or access to cannabis, cannabis products, or other controlled substances. The Dept. of Cannabis Control is also now required to submit to DOJ fingerprints for all peace officer employees or prospective peace officer employees of the Dept. of Cannabis Control.

 

B&P § 26050 is amended via AB 128 to add an additional licensing classification; i.e., “Cannabis event organizer.”

 

B&P §26050 via AB 152 to add another new licensing classification; i.e.,
“processor.”

 

B&P § 26051.5 is amended via AB 128 to exempt an owner of a cannabis business who has previously submitted fingerprints from having to submit additional fingerprints in connection with a subsequent application for a cannabis license.

 

Bus. & Prof. Code §§ 26320, 26321, 26322, 26323, 26324 & 26325 (New, SB 1186; from 2022 legislation):  Medicinal Cannabis Patients’ Right of Access Act:

New Chapter 26 in Division 10 of the Business & Professions Code, entitled “Medicinal Cannabis Patients’ Right of Access Act” is amended in order to ensure that medicinal cannabis can be delivered to medicinal cannabis patients.

 

A local jurisdiction is prohibited from adopting or enforcing any regulation that prohibits, or effectively prohibits, the retail sale by delivery of medicinal cannabis to medicinal cannabis patients or their primary caregivers by licensed medicinal cannabis businesses. Specifically prohibited is the regulation of any of the following that has the effect of prohibiting the retail sale by delivery of medicinal cannabis:

 

1. The number of medicinal cannabis businesses authorized to deliver medicinal cannabis in the local jurisdiction;

2. The operating hours of medicinal cannabis businesses;

3. The number or frequency of sales by delivery of medicinal cannabis;

4. The types or quantities of medicinal cannabis authorized to be sold by delivery; and

5. The establishment of physical business premises.

 

Nothing in this new chapter prohibits the adoption or enforcement of reasonable regulations on the retail sale by delivery of medicinal cannabis, including zoning requirements that are not inconsistent with this new chapter, public health and safety requirements, licensing requirements, and the imposition and collection of applicable state and local taxes.

 

Nothing in this new chapter should be construed to affect the ability of a local jurisdiction to adopt or enforce regulations on “commercial” cannabis operations other than the retail sale by delivery of medicinal cannabis.

 

A civil action may be brought to enforce this new chapter by the Attorney General, a medicinal cannabis patient or primary caregiver, a medicinal cannabis business, or “any other party otherwise authorized by law.”

 

Note:  The purpose of this bill is to ensure that medicinal cannabis patients can receive deliveries of medicinal cannabis at their residences.

 

Gov’t. Code § 12954 (New; AB 2188; 2022 Legislation), and (Amended; SB 700):  Marijuana and the Work Place:

 

A new section passed in 2022 (AB 2188), with a delayed operative date of January 1, 2024, prohibits an employer from discriminating against a person in hiring, termination, or in any condition of employment, or from penalizing a person, based on either of the following:

 

1. The person’s use of cannabis off the job and away from the workplace (but does permit an employer to discriminate in hiring or to penalize a person based on a pre-employment drug screening that does not screen for non-psychoactive cannabis metabolites); or

 

2. An employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids.

 

This new section does not apply to an employee in the building and construction trades or to an applicant or employee hired for a position that requires a federal government background investigation or security clearance.

 

Nothing in this section permits an employee to possess, to be impaired by, or to use, cannabis on the job.

 

SB 700 further amends this new section to provide that it is unlawful for an employer to request information from an applicant about the applicant’s prior use of cannabis.

 

Gov’t. Code § 53069.4 (Amended; AB 1684):  Authorization of an Ordinance to Declare the Unlicensed Commercial Cannabis Activity as a Public Nuisance:

 

The authorization of a local agency to adopt an ordinance beyond one that targets the illegal cultivation of cannabis is expanded to include the authorization of an ordinance to declare that unlicensed commercial cannabis activity is a public nuisance and to provide for the imposition of administrative fines or penalties for the violation of zoning restrictions and health and safety requirements, if the violation is the result of, or facilitates, the cultivation, manufacturing, processing, distribution, or the retail sale of cannabis for which a license is required. The ordinance may provide for fines and penalties against property owners and owners of the business. The maximum fine or penalty is $1,000 per violation and $10,000 per day.

 

The local agency may refer cases involving unlicensed commercial cannabis activity to the Attorney General for a civil enforcement action pursuant to existing B&P §§ 17200–17210 (unfair competition actions) or existing B&P § 26038 (which permits the Attorney General, a city prosecutor, or a county counsel to being an action for civil penalties against a person engaging in commercial cannabis activity without a license.)

 

Health & Safety Code § 11358 (Amended; SB 753):  Cultivating Cannabis Plants While Causing Harm to the Surface or Ground Water:

 

Causing harm to surface or ground water is added to the list of environmental circumstances that permit an adult who plants or cultivates more than six cannabis plants to be charged with a felony violation of this section.

 

Subdivision (d)(3)(G) now reads: “Intentionally or with gross negligence causing substantial environmental harm to surface or ground water, public lands, or other public resources.”

 

Note:  This section continues to provide that specified violations of the Fish & Game Code, the Health & Safety Code, and the Water Code will trigger the ability to charge a felony. The section also permits a felony charge if a defendant has a prior conviction for a “super-strike” (P.C. § 667(e)(2)(C)(iv)), is required to register as a sex offender, or has two prior convictions for H&S § 11358(c) (the misdemeanor crime of an adult planting or cultivating more than six cannabis plants).

 

See Controlled Substances, above.

 

 

 

 

 

Missing Persons:

 

Gov’t. Code § 8594.11 (New; AB 946):  Endangered Missing Advisory (EMA) Alert Program:

 

The California Highway Patrol’s (CHP) existing “Endangered Missing Advisory (EMA) Alert Program” is codified in this new Gov’t. Code provision.  As written, the section now authorizes a law enforcement agency to request that CHP activate an EMA for a missing person if the person is developmentally disabled, cognitively impaired, has been abducted, or is not able to care for him- or herself, has gone missing under unexplainable or suspicious circumstances, and the law enforcement agency believes the person is in danger or peril.

 

Note:  Existing law continues to provide the following alerts:

 

Amber Alert for missing children (Gov’t. Code § 8594);

Blue Alert for attacks on law enforcement officers (Gov’t. Code § 8594.5);

Silver Alert for missing elderly, developmentally disabled, or cognitively impaired people (Gov’t. Code § 8594.10);

Feather Alert for missing indigenous people (Gov’t. Code § 8594.13); and Yellow Alert for hit-and-run suspects when a death is involved (Gov’t. Code § 8594.15).

 

Gov’t. Code § 8594.14 (New; SB 673):  Endangered Missing Advisory (EMA) Alert Program:

 

A law enforcement agency is authorized to request that the California Highway Patrol activate an “Ebony Alert” for missing Black youth, including young women and girls, who are reported missing under unexplained or suspicious circumstances, or who are at risk, developmentally disabled, or cognitively impaired, or who have been abducted.

 

A law enforcement agency is permitted to request an Ebony Alert if the agency determines that it would be an effective tool in the investigation, and permits the agency to consider these factors:

 

1. The missing person is between 12 and 25 years of age;

2. The missing person suffers from a mental or physical disability;

3. The person is missing under circumstances that indicate the person is in physical danger or may be subject to trafficking;

4. The law enforcement agency determines the person is missing under unexplained or suspicious circumstances;

5. The law enforcement agency believes that the person is in danger because of age, health, mental or physical disability, or environment or weather conditions, or that the person is in the company of a potentially dangerous person, or that there are other factors indicating that the person may be in peril;

6. The law enforcement agency has utilized available local resources; and

7. There is information available that, if disseminated to the public, could assist in the safe recovery of the missing person.

 

Post-Conviction Probation Programs:

 

Pen. Code § 1170 (Amended; SB 852):  Probationary Fourth Waiver Searches:

 

SB 852 amends subdivision (h)(5)(B) of P.C. § 1170 to add that a defendant who is subject to search and seizure as part of the terms and conditions of mandatory supervision, is subject to search and seizure only by a probation officer or other peace officer.

 

Notes: 

 

Uncodified Section One of SB 852 provides that it shall be known as the “PROTECT Act” (I.e.; “Prohibiting Rogue Officer Tricks and Ensuring Community Trust Act”).

 

Uncodified Section Two of the bill contains the Legislature’s declarations, which claim that Immigration and Customs Enforcement (ICE) employees use “probation ruses” by misrepresenting themselves as probation officers in order to gain access to homes. The Legislature also states that California law is clear that ICE employees are not California peace officers (P.C. § 830.85) and that California “must take necessary actions to eliminate any ambiguity under existing law and make it clear that ICE employees are not peace officers and cannot conduct probation searches and seizures.”

 

SB 852 also makes similar amendments to P.C. § 1203 (probation); P.C. §§ 1203.016, 1203.017, and 1203.018 (home detention and electronic monitoring); and P.C. § 1203.25 (release of probation violators).

 

Pen. Code § 1203 (Amended; SB 852):  Probationary Fourth Waiver Searches:

 

New subdivision (m) is added to provide that a probationer is subject to search and seizure only by a probation officer or other peace officer.

 

Notes: 

 

Uncodified Section One of this bill provides that it shall be known as the “PROTECT Act” (I.e.; “Prohibiting Rogue Officer Tricks and Ensuring Community Trust Act”).

 

Uncodified Section Two of the bill contains the Legislature’s declarations, which claim that Immigration and Customs Enforcement (ICE) employees use “probation ruses” by misrepresenting themselves as probation officers in order to gain access to homes. The Legislature also states that California law is clear that ICE employees are not California peace officers (P.C. § 830.85) and that California “must take necessary actions to eliminate any ambiguity under existing law and make it clear that ICE employees are not peace officers and cannot conduct probation searches and seizures.”

 

This bill also makes similar amendments to P.C. § 1170(h) (mandatory supervision); P.C. §§ 1203.016, 1203.017, and 1203.018 (home detention and electronic monitoring); and P.C. § 1203.25 (release of probation violators).

 

Pen. Code §§ 1203.016, 1203.017, & 1203.018 (Amended; SB 852):  Home Detention/ Electronic Monitoring Programs; Admission to the Probationer’s Residence:

 

These home detention/electronic monitoring programs are amended to require that participants admit a “probation officer or other peace officer” into their residences at any time for the purpose of verifying compliance with the conditions of detention.

 

Notes:

 

Uncodified Section One of this bill provides that it shall be known as the “PROTECT Act” (I.e.; “Prohibiting Rogue Officer Tricks and Ensuring Community Trust Act”).

 

Uncodified Section Two of the bill contains the Legislature’s declarations, which claim that Immigration and Customs Enforcement (ICE) employees use “probation ruses” by misrepresenting themselves as probation officers in order to gain access to homes. The Legislature also states that California law is clear that ICE employees are not California peace officers (P.C. § 830.85) and that California “must take necessary actions to eliminate any ambiguity under existing law and make it clear that ICE employees are not peace officers and cannot conduct probation searches and seizures.”

 

This bill also makes similar amendments to P.C. §§ 1170(h) (mandatory supervision); 1203 (probation); and 1203.25 (release of probation violators).

 

 

 

Pen. Code § 1203.44 (New; AB 1360): Sacramento and Yolo Counties Residential Treatment Pilot Program: “Hope California:”

 

The counties of Sacramento and Yolo are authorized to offer a voluntary secured residential treatment pilot program, known as “Hope California,” for substance abusers who are convicted of “drug-motivated felony crimes.” The program would be in lieu of a jail or prison sentence imposed by the court. Disqualifiers Provides that all drug-motivated felony crimes are eligible for the program, except the following:

 

1. Sex crimes listed in P.C. § 290(c);

 

2. Serious felonies listed in P.C. §§ 1192.7(c) and 1192.8;

 

3. Violent felonies listed in P.C. § 667.5(c);

 

4. Domestic violence crimes defined in Fam. Code § 6211 (abuse perpetrated against a spouse, former spouse, cohabitant, former cohabitant, person with whom the offender has or has had a dating or engagement relationship; person with whom the offender has a child; or a person related by blood or marriage within the second degree);

 

5. Driving under the influence in violation of P.C. § 191.5, V.C. §§ 23152, 23153, 23550, or 23550.5; and

 

6. A “nonviolent drug possession offense” specified in existing P.C. § 1210(a) (unlawful use, possession for personal use, or transportation for personal use of any controlled substance defined in H&S §§ 11054–11058 (Schedules I through V), or the offense of being under the influence of a controlled substance in violation of H&S § 11550).

 

Existing P.C. § 1210.1 (Proposition 36, November 2000) sets forth detailed provisions for probation and drug treatment for these offenders.

 

Eligibility:  A judge is required to offer a non-disqualified defendant voluntary participation in the pilot program as an alternative to jail or prison if:

 

1. The defendant’s crime was caused in whole or in part by the defendant’s substance abuse; and

 

2. The judge makes a determination based on the recommendations of the treatment providers who conducted an assessment of the defendant, on a finding by the county’s health and human services agency (HHSA) that the defendant’s participation in the program would be appropriate, and on a report prepared with input from interested parties, including the district attorney, the defense attorney, the probation department, HHSA, and any contracted drug treatment program provider.

 

Requirements for the Program:  Numerous requirements are listed for such a program, including that the program facility must be licensed; cannot be a jail, prison, or correctional setting; must be secured but cannot include a “lockdown setting;” and must have visitation rights and telephone privileges.

 

Other Requirements:

 

The defendant is required be supervised by the probation department while participating in the program.

 

Defendants must plead guilty or no contest and be sentenced.

 

A defendant who is transferred out of residential treatment must complete the remainder of the sentence originally imposed, minus credits earned (per P.C. §§ 2900.5 and 4019).

 

The defendant is entitled to a dismissal of the conviction if the defendant successfully completes treatment. The court also has the discretion to dismiss any previous drug possession or drug use crimes on the defendant’s record.

 

Successful completion is determined only by treatment providers and not by the court, the district attorney, or the probation department. Successful completion does not require the defendant to complete the duration of the treatment originally ordered by the court.

 

This bill also amends P.C. § 11105(p)(2)(A) to add convictions for which relief has been granted pursuant to P.C. § 1203.44 to those that will not be disseminated by DOJ in specified circumstances.

 

Sunset Date:  This new section will remain in effect only until July 1, 2029.

 

Note: Uncodified Section 6 of this bill provides that a special statute is necessary and that a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the “unique circumstances that the Counties of Sacramento and Yolo have experienced with regard to difficulties in treating individuals who have been convicted of drug-motivated crimes as a result of their substance use disorders.”

 

 

 

 

 

Prisoners:

 

Pen. Code § 2068 (New; AB 943):  State Prisoner Race and Ethnic Origin Statistics:

 

Requires the State Department of Corrections and Rehabilitation (CDCR) to collect voluntary self-identification information pertaining to race or ethnic origin from state prison inmates and parolees, for more than 35 races and ethnicities, and make the data available on its internet website.

 

Note:  Uncodified Section One of the bill expresses the Legislature’s concern that Asians, Pacific Islanders, and Indigenous people are categorized as “other” in CDCR’s monthly population reports and that they need to be better served with culturally competent and sensitive in-prison and reentry programs.

 

Pen. Code § 2084.3 (New; AB 353):  State Prisoners Right to Shower:

 

Requires that state prison inmates be permitted to shower at least every other day, unless a decision to prohibit showering is approved by the facility manager or designee.

 

Pen. Code § 2607 (New; SB 309): State and Local Prisoners Religious Freedoms:

 

Every person in custody in a state or local detention facility (e.g., jails and state prisons) has the right to religious accommodation with respect to grooming, religious clothing, and headwear in observance of a sincerely held religious belief, at all times and throughout the facility, except if there is a compelling governmental interest regarding security.

 

Religious accommodation may be denied only when doing so would be the least restrictive means of furthering this governmental interest.

 

These religious protections apply to all persons in custody, including those in the booking process, in temporary holding, awaiting trial, or sentenced.

 

Detention facilities, during booking or intake, are required to ask all persons if they practice a sincerely held religious belief that requires accommodation with respect to grooming, religious clothing, or religious headwear.

 

For such inmates, requires a facility to do the following:

 

1. Allow inmates to purchase facility-issued or department-approved religious clothing or headwear, or if not available, permit inmates to retain their own until the facility can make them available;

 

2. Not require hair or beards to be trimmed;

 

3. For searches, offer to have a person of the same gender as the inmate do the search and conduct the search out of the view of people with a different gender. After the search, return religious clothing and headwear to the inmate, unless there is a reason to confiscate the item(s) because of a security risk.

 

The State Department of Corrections and Rehabilitation (CDCR) is authorized to promulgate regulations to implement this section. An inmate who believes a request for religious accommodation has been denied has the right to seek relief pursuant to the federal Religious Land Use and Institutionalized  Persons Act (42 U.S.C. 2000cc, in Chapter 21C).

 

Pen. Code § 3003 (Repealed & Added; SB 990; 2022 Legislation):  Residency and Travel Requirements for Parolees:

 

The relocation and travel options has been expanded to counties other than the county of last legal residence for inmates released from state prison onto parole or postrelease community supervision (PRCS). The State Department of Corrections and Rehabilitation (CDCR) is required to release a parolee to, or permit a parolee to travel to, or permit a transfer of residency to, a county in which specified circumstances are present and verified, as long as the release, permission to travel, or residency transfer would not present a threat to public safety.

 

CDCR and probation departments are permitted (but not required) to apply these circumstances to offenders released on PRCS (postrelease community supervision). In determining an out-of-county commitment, priority is required to be given to the safety of victims, witnesses, and the community. It is required (in the case of a parolee) or permitted (in the case of an offender released on PRCS) that:

 

1.      An inmate be released to the county where there is a verified postsecondary educational or vocational training program of the inmate’s choice, or a verified work offer, or where there is verified family of the inmate, outpatient treatment, or housing.

 

2.      An offender be granted a permit to travel outside the county of commitment to a location where the offender has postsecondary educational or vocational training program activities, including classes, conferences, or extracurricular educational activities; an employment opportunity; or inpatient or outpatient treatment.

 

3.      An approval to transfer residency and parole to another county be granted where the offender has a verified postsecondary educational or vocational training program, a verified work offer, or where the offender has family, inpatient or outpatient treatment, or housing.

 

Pen. Code § 3007.09 (New; AB 857): Written Informational Materials for Released Prison Inmates:

 

The State Department of Corrections and Rehabilitation (CDCR) is required to provide to every inmate, upon release from state prison, informational written materials about vocational rehabilitation services and independent living programs offered by the Department of Rehabilitation, along with an enrollment form for vocational rehabilitation services. Every released inmate is required be provided with these materials, whether or not CDCR believes the inmate is eligible for these services and programs.

 

Note:  This bill also amends W&I § 19150 to add the following to the definition of “vocational rehabilitation services”: Services to formerly incarcerated persons with disabilities, designed to promote rehabilitation and reduce the likelihood of recidivism.

 

Pen. Code §§ 4027 (Amended) P.C. 4027.5 (New; SB 309):  Local Prisoners Religious Freedoms:

 

P.C. § 4027 is amended to add a cross-reference to new P.C. § 2607 to provide that it is the Legislature’s intent that all prisoners confined in local detention facilities be afforded religious grooming, clothing, and headwear accommodations in accordance with new P.C. § 2607.  (See above)

 

New P.C. § 4027.5 require sheriffs and jail administrators, by January 1, 2025, to develop and implement a religious grooming, clothing, and headwear policy in accordance with P.C. § 2607 for inmates in jails and holding facilities.  This section now provides that these policies will apply to all inmates, whether or not charged with a crime or convicted.

 

Note:  See P.C. § 2607, above, for a detailed description.

 

Pen. Code § 4033 (New; AB 1329):  San Diego Sheriff and DMV Pilot Program for Identification or Driver’s License Renewal:

 

The San Diego County Sheriff’s Dep’t and the Dep’t of Motor Vehicles are authorized to implement a five-year pilot program to provide inmates in San Diego County detention facilities with an identification card or a renewed driver’s license. The San Diego County Sheriff’s Dep’t would facilitate the process between inmates and the agencies holding required documentation, such as birth certificates and social security numbers, and would provide notary services, assistance with obtaining necessary forms, and correspondence.

 

This program may be implemented “to the extent administratively feasible and within available resources.”

 

Pen. Code § 5000 (Amended; AB 1104):  The Primary Objective of State Prison Incarceration:

 

The primary objective of adult incarceration in California Department of Corrections and Rehabilitation (CDCR) has been changed from “public safety” to the following: “(T)o facilitate the successful reintegration of the individuals in the department’s care back to their communities equipped with the tools to be drug-free, healthy, and employable members of society by providing education, treatment, and rehabilitative and restorative justice programs, all in a safe and human environment.”

 

Notes: 

 

This bill also amends P.C. § 1170 to add that the purpose of incarceration is rehabilitation and successful community reintegration through education, treatment, and active participation in rehabilitative and restorative justice programs.

 

See also P.C. § 6024 (Amended; SB 519):  The mission of the Board of State & Community Corrections is to promote legal and safe conditions for youth, inmates, and staff in local detention facilities.

 

Pen. Code § 5005 (Amended; SB 474): Prison Canteens:

 

It is now required, instead of permitted, that the State Department of Corrections and Rehabilitation (CDCR) maintain a canteen at every active prison to sell items such as toiletries, candy, notions, and sundries to inmates. Instead of permitting prices to be set so that canteens are self-supporting, it is now required that prices not exceed a 35-percent markup above the amount paid to vendors.

 

Notes: 

 

This amendment has a sunset date of January 1, 2028, at which time this section will once again permit prices to be set so that canteens are self-supporting.

 

This bill shall be known as the “Basic Affordable Supplies for Incarcerated Californians Act,” or “BASIC Act.”

 

Pen. Code §§ 6048, 6048.5 (New; AB 268; Effective July 1, 2024):  Standards for Mental Health Care in Local Correctional Facilities:

 

These new Penal Code sections, entitled “Standards for Mental Health Care in Local Correctional Facilities,” requires the “Board of State & Community Corrections” to develop and adopt regulations setting minimum standards of mental health care at local correctional facilities (e.g., jails) that meet or exceed the standards for health services in jails established by the National Commission on Correctional Health Care. It is required that these minimum standards include safety checks, correctional officers being certified in cardiopulmonary resuscitation (CPR), jail supervisors conducting random audits of safety checks by reviewing logs and video footage, in-service training of correctional officers for at least four hours annually on mental and behavioral health, mental health screenings at booking or intake conducted by a qualified mental health care professional if available, and jail staff reviews of medical and mental health histories of persons booked or transferred into jail.

 

Pen. Code § 6405 (New; AB 134):  Prison Visitations:

 

For in-person state prison visits, this new section:

 

Permits a visitor with an infant or toddler to bring in items such as formula, breastmilk, a breast pump, baby food, clothing changes, blankets, pacifiers, etc.

 

For state prison family visits, a visitor is permitted to bring in items such as sheets, towels, bath mats, shower curtains, lubricant, and items for infants and toddlers.

 

For any in-person or family state prison visits, permits a visitor to bring in menstrual hygiene products.

 

A visiting minor is permitted to bring in at least two non-battery operated toys, two children’s books, and up to 10 pages of homework or coloring pages. 

 

Visitors may request that the California Department of Corrections and Rehabilitation (CDCR” scan documents into “The Strategic Offender Management System” (SOMS), such as birth certificates, marriage licenses, medical notes, and parental consent forms for visiting minors, in order to streamline the process for future visits.

 

Prosecutors’ Duties:

 

Pen. Code § 11116.10 (Amended; SB 464):  Notification to Victim or Witness About the Final Disposition of a Case:

 

The time the prosecuting attorney has to notify a victim or witness about the final disposition of a case at the trial court level has been shortened from 60 days to 30 days, when the victim or witness has requested such notification.

 

Note:  Since a defendant has 60 days to appeal a judgment, this means that a prosecutor may have to report the disposition before it is known whether the defendant will file an appeal.

 

Pen. Code § 13300 (Amended) (Ch. 453; AB 709): Witness Lists and Exculpatory or Impeachment Evidence: 

 

New subdivision (o) is added authorizing a public prosecutor to provide a public defender’s office, an alternate defender’s office, or a licensed attorney of record in a criminal case with a list containing the names of peace officers, defendants, and corresponding case numbers, in order to facilitate and expedite notifying defense attorneys about exculpatory or impeachment evidence involving peace officers who may testify in a particular case. (See Brady v. Maryland (1963) 373 U.S. 83, which requires the prosecution to disclose to the defense all evidence in its possession that is favorable to the defendant and material on the issue of guilt or punishment.)

 

The amended section also provides the following:

 

1. “Any disclosure made pursuant to this subdivision shall only be made upon agreement by the public defender’s office, alternate defender’s office, or the licensed attorney of record in a criminal case.”

 

2. “Any disclosure pursuant to this subdivision shall not constitute disclosure under any other law, nor shall any privilege or confidentiality be deemed waived by that disclosure.”

 

3. “This subdivision shall not be construed to otherwise limit any legal mandate to disclose evidence or information, including, but not limited to, the disclosures required under Chapter 10 (commencing with Section 1054) of Title 6 of Part 2 [Discovery].”

           

Racial Prejudice:

 

Pen. Code § 745 (Amended; AB 1118):  Expansion of the Racial Prejudice Act:

 

The California Racial Justice Act is amended to permit a defendant to allege a violation of the Act on direct appeal from a conviction or sentence. As amended, the Act also permits a defendant to move to stay the appeal and request remand to the superior court to file a motion pursuant to this section.

 

Note:  Subd. (a) of the Act provides that:  “The state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.”

 

The Act continues to provide that a defendant may file a motion pursuant to this section (such as during trial or before sentencing), or a petition for writ of habeas corpus under P.C. § 1473.7. However, habeas corpus is no longer the exclusive avenue for a post-conviction challenge.

 

A technical, non-substantive amendment in subdivision (e) to correct a cross-reference from subdivision (l) to subdivision (k).

 

Note:  AB 256, adding the Racial Justice Act to the Penal Code, was passed in 2022 and added a phased-in timeline for retroactivity over four years, from January 2023 to January 2026. Beginning January 1, 2024, the Act applies to cases in which the defendant is currently serving a sentence in state prison, or in a county jail pursuant to P.C. § 1170(h), or is committed to the Division of Juvenile Justice for a juvenile disposition, regardless of when the judgment or disposition became final.

 

See also Pen. Code § 13510.6 (New; AB 443; Effective January 2, 2026):  Determination of Biased Conduct by Law Enforcment Officers, under “Law Enforcement,” above.

 

Restraining Orders:

 

Pen. Code § 136.2 (Amended; AB 467):  Modification of a Restraining Order:

 

Subdivision (i)(1) is amended to add that a sentencing court in the county in which a restraining order was issued may modify the order throughout its duration.

 

Note:  Subdivision (i)(1) authorizes a court to issue a post-conviction restraining order for up to ten years to prohibit a defendant from contacting a victim in a domestic violence, sexual assault, or gang case. This amendment clarifies the issue of whether the court retains jurisdiction to modify a restraining order after the defendant finished serving a sentence or after supervision had ended, making it clear that a court may modify these restraining orders, even long after a sentence or supervision has ended.

 

Sexual Assault Cases:

 

Evid. Code § 1285 (New; AB 1253) Sexually Violent Predators: 

 

A new hearsay exception for probable cause hearings in sexually violent predator cases (W&I § 6602) has been created to permit the admission of specified statements contained within an official written report or record of a law enforcement officer regarding a sex offense that resulted in a conviction. Under this exception, the statements from a victim of a sex offense, an eyewitness to the sex offense, and a sexual assault medical examiner who examined the victim, are admissible in a probable cause hearing.

 

Note:  Live testimony is still required at trial.  However, this bill abrogates the decision in Walker v. Superior Court (2021) 12 Cal.5th 177, which held that W&I § 6602 (probable cause sexually violent predator hearings) does not create an exception that allows hearsay regarding non-predicate offenses to be introduced through a psychologist’s evaluation report.

 

Superior Court:

 

Gov’t. Code § 69894 (New; AB 1576; 2022 Legislation; Effective July 1, 2024); and (Further Amended; SB 133; Effective June 30, 2023):  Lactation Rooms:

 

Beginning July 1, 2026, a superior court is required to provide a lactation room for “court users” in an area that is accessible to the public using the court facility, in any courthouse that has a lactation room for court employees. The lactation room is prohibited from being a bathroom and requires that it be “shielded from view and free from intrusion while it is being used by a court user to express milk.”

 

Notes: 

 

No definition of “court user” is provided, but is likely to include crime victims, witnesses, defendants, attorneys, and court observers. It is unknown if it is to include the homeless, encamped outside the courthouse.

 

In 2022, AB 1576 created this new section with an operative date of July 1, 2024. In 2023, SB 133 pushed back the operative date by two years, to July 1, 2026.

 

Vehicle Code Violations:

 

Veh. Code § 2806.5 (New; AB 2773):  Requirement That a Peace Officer State the Reason for a Traffic Stop Before Engaging in Any Questioning Related to a Criminal Investigation:

 

Pursuant to this new Vehicle Code section, a peace officer making a traffic or pedestrian stop must, before engaging in questioning related to a criminal investigation or traffic violation, state the reason for the stop.  An exception applies if the officer has a reasonable belief that withholding the reason for the stop is necessary to protect life or property from imminent threat.

 

The officer is also required to document the reason for the stop on any citation or police report resulting from the stop.

 

Note: This bill also amends Gov’t. Code § 12525.5 to add “The reason given to the person stopped at the time of the stop” to the types of information that local and state law enforcement agencies are required to report annually to the Attorney General on all stops conducted by the agency.  (See “Law Enforcement,” above.)

 

Veh. Code §§ 4000 & 5204 (Amended; AB 256; Effective July 1, 2024): Registration and License Plate Tab Violations:

 

Beginning July 1, 2024, V.C. §§ 4000 and 5204 are amended to prohibit a vehicle registration violation (V.C. § 4000) or a license plate tab violation (V.C. § 5204) from being the “sole basis for any enforcement action before the second month after the month” the vehicle’s registration expires. A registration or license plate tab violation to be enforced before the second month if the vehicle is stopped for any other Vehicle Code violation.

 

See also V.C. § 40225(b), below.

 

Veh. Code § 10753 (New; AB 1519):  Catalytic Converters:

 

The following constitute a misdemeanor:

 

1. Removing, altering, or obfuscating a vehicle identification number or unique marking that has been added to a catalytic converter.

 

2. Knowingly possessing three or more catalytic converters that have a vehicle identification number (VIN) or unique marking removed, altered, or obfuscated.

 

Punishment:  Up to six months in jail and/or a fine of up to $1,000. (P.C. § 19.)

 

Exceptions to the above:

 

When removing a VIN or unique marking in order to apply a new VIN or unique marking because the catalytic converter is being lawfully installed in a different vehicle.;

 

Disassembling or permanently destroying a catalytic converter that is lawfully possessed.

 

Veh. Code § 11500 (Amended; AB 641):  Catalytic Converters and Automobile Dismantlers:

 

A new paragraph is added to provide penalties for a person who acts unlawfully as an “automobile dismantler” (e.g., unlicensed, revoked license, no established place of business) “due to” possessing nine or more catalytic converters that have been cut from a vehicle using a sharp instrument.

 

A first violation is an infraction punishable by a fine of up to $100; a second violation is a misdemeanor punishable by a fine of at least $250; a third violation is a misdemeanor punishable by a fine of at least $500; and a fourth or subsequent violation is punishable by a fine of at least $1,000.

 

Note: This bill also makes conforming amendments to V.C. §§ 220 (definition of automobile dismantler) and 221 (exceptions to the definition of automobile dismantler.) It also amends V.C. § 220 to expand the definition of an automobile dismantler to a person who keeps or maintains on real property nine or more used catalytic converters that have been cut from a motor vehicle using a sharp instrument.

 

Veh. Code § 21100 (Amended; AB 436): Cruising Legalized:

 

A local authority is prohibited from regulating “cruising” by eliminating subdivision (k), which was included in a list of activities subject to local regulation.

 

“Cruising” was defined in subdivision (k) as “the repetitive driving of a motor vehicle past a traffic control point in traffic that is congested at or near the traffic control point, as determined by the ranking peace officer on duty within the affected area, within a specified time period and after the vehicle operator has been given an adequate written notice that further driving past the control point will be a violation of the ordinance or resolution.”

 

Note:  The legislative history of this bill asserts that “[c]ruising is part of the culture for many multicultural communities, a way of expressing love for art, and bringing unity.”

 

Veh. Code § 21655.1 (Amended; AB 971): Transit-Only Traffic Lanes:

 

The prohibition on operating a vehicle on a portion of highway designated for the exclusive use of public transit buses is expanded to include “transit-only traffic lanes.”

 

Local authorities or the Dep’t of Transportation are authorized to expand these lanes to other types of mass transit vehicles, including taxis and vanpools.

 

The term “transit-only traffic lane” has the same meaning as in existing V.C. § 40240: any designated transit-only lane on which use is restricted to mass transit vehicles, or other designated vehicles including taxis and vanpools, during posted times.

 

Veh. Code § 22500 (Amended; AB 413): Prohibited Parking:

 

New subdivision (n) is added to expand the list of places where a vehicle is prohibited from stopping or parking: i.e., within 20 feet of the vehicle approach side of any marked or unmarked crosswalk, or within 15 feet of any crosswalk where a curb extension is present.

 

If the area is not marked with paint or a sign, only warnings, and not citations, may be issued for a violation that occurs before January 1, 2025. Beginning January 1, 2025, a citation may be issued regardless of whether the area is marked.

 

A local authority is allowed to establish a different distance by ordinance if the different distance is justified by established traffic safety standards and the distance is marked by paint or a sign. A local authority is also allowed to permit commercial vehicle loading and unloading within 20 feet of a marked or unmarked crosswalk, or within 15 feet of a crosswalk where a curb extension is present, and to permit parking for bicycles and motorized scooters within 20 feet of a crosswalk.

 

Note:  According to the legislative history of this bill, California’s pedestrian fatality rate is almost 25% higher than the national average and this bill will increase the visibility of pedestrians by prohibiting parking within 20 or 15 feet of intersections and crosswalks. The practice is known as “daylighting”—removing the parking spots closest to an intersection to increase visibility.

 

Veh. Code § 22651 (Amended; AB 925):  Vehicle Tows for Expired Registration:

 

Subdivision (o) is amended to require that Dep’t. of Motor Vehicle (DMV) records be checked before a vehicle may be removed (e.g., towed) for having expired registration. Prohibits removal if the vehicle is currently registered with DMV or if the officer or employee desiring removal does not have immediate access to DMV records.

 

Note:  The legislative history of this bill states that there is widespread theft of registration tabs (stickers). The bill prevents towing when a vehicle has current registration even if the sticker/tab is out of date, and ensures that the owner of a properly registered vehicle is not subject to towing and storage fees.

 

Veh. Code § 24008 (Repealed; AB 436): Lowrider Vehicle Prohibition Repealed:

 

The prohibition on specified lowrider vehicles is repealed. This section previously prohibited the operation of a passenger vehicle, or a commercial vehicle under 6,000 pounds, “which has been modified from the original design so that any portion of the vehicle, other than the wheels, has less clearance from the surface of a level roadway than the clearance between the roadway and the lowermost portion of any rim of any wheel in contact with the roadway.”

 

Note:  This bill also eliminates subdivision (k) in V.C. § 21100 to order to prohibit local authorities from regulating cruising. See above.

 

Veh. Code § 24020 (New; SB 55): Catalytic Converters Without the Vehicle’s VIN Number:

 

A new infraction crime is enacted of a vehicle dealer or retailer selling a new or used vehicle equipped with a catalytic converter that has not been permanently marked with the vehicle identification number (VIN) of the vehicle to which it is attached.

 

A number of exceptions are provided:  I.e., on collector motor vehicles, motorcycles, a vehicle sold by a licensed automobile dismantler, a vehicle sold at a salvage disposal auction, and a vehicle sold to a buyer who declines the seller’s offer to permanently mark the catalytic converter.

 

“Permanently marked” is defined as engraved, etched welded, metal stamped, acid marked, or otherwise permanently imprinted with a lasting mark.

 

Punishment:  Infraction, punishable pursuant to existing V.C. § 42001: a fine of up to $100 for a first offense, a fine of up to $200 for a second violation within one year, or a fine of up to $250 for a third or subsequent violation within one year of two or more prior violations.

 

Veh. Code § 40000.25 (Amended: AB 466): Failure to Attend Traffic School:

 

The misdemeanor crime of failing to comply with a court order to attend traffic school (V.C. § 42005) is repealed by removing it from the list of misdemeanor crimes specified in V.C. § 40000.25 and by amending V.C. § 42005.  (See below.)

 

Veh. Code § 40225 (Amended; AB 256; Effective July 1, 2024):  License Plate Tab Violation as the Basis for an Enforcement Action:

 

Beginning July 1, 2024, it is prohibited to use a V.C. § 5204 (license plate tab) violation as the basis for an enforcement action before the second month after the month the vehicle’s registration expires.

 

Note:  V.C. § 40225(b) continues to require that DMV records be checked to verify no current registration exists before issuing a citation for a violation of V.C. § 5204, and prohibits the issuance of a citation if the vehicle’s registration is current, even if the tab is not. V.C. § 40225 continues to authorize a person who enforces parking laws to issue a parking citation if a vehicle does not have a tab or verified current registration.

 

Veh. Code §§ 40245, 40246, 40247, & 40248 (New; AB 361): Procedure on Photographic Imaging of Parking Violations Occurring in Bicycle Lanes:

 

New Article 3.6 in Chapter 1 of Division 17 of the Vehicle Code, entitled “Procedure on Photographic Imaging of Parking Violations Occurring in Bicycle Lanes,” has been enacted, authorizing a local agency to install automated forward facing parking control devices on city-owned or district-owned parking enforcement vehicles for the purpose of taking photographs of parking violations occurring in bicycle lanes.

 

For the first 60 days of the program, only warning notices to be issued. Photographic records are confidential.

 

A violation is subject to a civil penalty only. Deadlines are set forth for mailing parking violations to the registered owner of a vehicle and payment deadlines.

 

Note:  An administrative hearing is available pursuant to existing V.C. § 40215 and an appeal may be filed pursuant to existing V.C. § 40230. Requires any local agency that implements this program to submit a report to the Legislature by December 31, 2028. Provides that these sections will sunset on January 1, 2030.

 

Veh. Code § 40508 (Amended; AB 1125):  License Suspensions for Failure to Pay an Installment for Bail or a Fine:

 

The court’s authority to “impound” (i.e., suspend) a driver’s license for thirty days when the person fails to make an agreed upon installment payment for bail or a fine is eliminated.

 

Note:  AB 103 in 2017 amended V.C. §§ 13365, 13365.2, 40509, and 40509.5 to prohibit the suspension of a driver’s license for failing to pay a traffic fine. This bill eliminates license suspension for failing to keep up with installment payments for traffic fines. This bill also makes a conforming amendment to V.C. § 1803.

 

Veh. Code § 42005 (Amended; AB 466): Failure to Attend Traffic School:

 

Subdivision (e) is amended to repeal the misdemeanor crime of failing to comply with a court order to attend traffic school.

 

Note:  Failing to attend traffic school will not have a criminal penalty, but it will result in the traffic violation not being confidential and in the appropriate violation point counts being assessed on the offender’s driving record.   (See Veh. Code § 40000.25, above.)

 

Victims of Crime:

 

Gov’t. Code §§ 6205, 6205.5, 6206, 6208.5, 6209.5, & 6209.7 (Effective July 1, 2024; Repealed & Added; AB 243):  Child Abduction Victims:  Secretary of State’s Address Confidentiality Program:

 

Beginning July 1, 2024, victims of child abduction and members of their households are eligible for the Secretary of State’s address confidentiality program.

 

“Child Abduction” is defined as an act or attempted act made punishable pursuant to P.C. §§ 278 or 278.5.

 

Note:  The address confidentiality program continues to apply to victims of domestic violence, sexual assault, stalking, human trafficking, and elder and dependent adult abuse, and their household members.

 

Gov’t. Code § 13955 (Amended; AB 56):  Crime Victims with Emotional Injury: Victim Compensation:

 

Compensation from the California Victim Compensation Board (CalVCB) is expanded by adding the victims of these crimes:

 

Felony violations of P.C. § 187 (murder) and attempted murder,

P.C. § 203 (mayhem),

P.C. § 206 (torture),

P.C. 207, 209, 209.5 (kidnapping),

P.C. 210 (posing as a kidnapper or as a person empowered to obtain a victim’s release),

P.C. § 220 (assault with the intent to commit mayhem or a specified sex crime),

P.C. § 264.1 (sex crimes committed while voluntarily acting in concert),

P.C. § 269 (aggravated sexual assault of a child),

P.C. § 288.7 (sex acts on a child age 10 or younger),

P.C. § 646.9 (stalking), and

Any crime punishable pursuant to P.C. § 667.61 (one strike sex offender) or P.C. 667.71 (habitual sex offender).

 

Note:  The section continues to apply to human trafficking (P.C. § 236.1), rape (P.C. § 261 and former P.C. § 262), desertion of a child under age 14 (P.C. § 271), child endangerment (P.C. § 273a), corporal injury on a child (P.C. § 273d), incest (P.C. § 285), sodomy (P.C. § 286), oral copulation (P.C. § 287), lewd act on a child or dependent person (P.C. § 288), continuous sexual abuse of a child (P.C § 288.5), sexual penetration (P.C. § 289), using a minor to produce pornography (P.C. § 311.4(b) and (c)), and using an electronic communication to instill fear or harass (P.C. § 653.2).

 

Gov’t C. 13956 (Amended; AB 160; 2022 Legislation; Effective 7/1/2024, if specified contingencies are met):  Victim Compensation:

 

Several changes were made to expand eligibility for compensation from the California Victim Compensation Board, and provides that the changes will be operative on July 1, 2024, But only if: “General Fund moneys over the multi-year forecasts beginning in the 2024-25 fiscal year are available to support ongoing augmentations and actions, and if an appropriation is made to backfill the Restitution Fund to support the actions in this section.”

 

These are the amendments that will go into effect if the above conditions are met:

 

1.      Subdivision (b)(1) changes “victim of domestic violence” to simply “victim” so that a victim of any crime cannot be determined to have failed to cooperate with law enforcement based on the victim’s conduct at the scene of the crime.

 

2.      Subdivision (b)(1) also changes “victim of sexual assault, domestic violence, or human trafficking” to simply “victim” so that for a victim of any crime, a lack of cooperation cannot be found solely because the victim delayed reporting the qualifying crime.

 

3.      Subdivision (c)(1) eliminates the prohibition on a person who is convicted of a violent felony (P.C. § 667.5(c)) and who is also a crime victim eligible for compensation, receiving compensation until after discharge from probation, parole, postrelease community supervision, or mandatory supervision. Instead, convicted violent felons may receive compensation as a crime victim as soon as they are released from a correctional institution, whether or not they are still on some form of supervision.

 

Gov’t. Code § 13957 (Amended; AB 1187) and (Amended; AB 160; 2022 Legislation; Effective July 1, 2024, if specified contingencies are met:  Counseling Expenses:

 

The type of counseling expenses the California Victim Compensation Board (CalVCB) is authorized to reimburse crime victims is expanded via AB 160 by adding counseling services provided by a “Certified Child Life Specialist” who is certified by the Association of Child Life Professionals and who provides counseling under the supervision of a licensed provider. These changes will be operative on July 1, 2024, but only if “General Fund moneys over the multi-year forecasts beginning in the 2024-25 fiscal year are available to support ongoing augmentations and actions, and if an appropriation is made to backfill the Restitution Fund to support the actions in this section.”

 

The $5,000 and $10,000 caps is eliminated on reimbursement for outpatient mental health counseling for victims and derivative victims. The relocation payments is expanded from a maximum of $3,418 to a maximum of $7,500. CalVCB may continue increase the payment for relocation expenses above the maximum allowed if there are unusual, dire, or exceptional circumstances. Funeral and burial payments is increased from a maximum of $12,818 to a maximum of $20,000. Increases, The maximum total award a victim or derivative victim may receive is increased from $35,000 ($70,000 if federal funds are available), to $100,000.

 

Gov’t. Code § 13957.5 (Amended; AB 160; 2022 Legislation; Effective July 1, 2024, if specified contingencies are met):  Compensation for Loss of Income and Support for Crime Victims:

 

The eligibility for compensation to crime victims and derivative victims from the California Victim Compensation Board (CalVCB) is expanded to cover the loss of income and support.  These changes will be operative on July 1, 2024, but only if:  “General Fund moneys over the multi-year forecasts beginning in the 2024-25 fiscal year are available to support ongoing augmentations and actions, and if an appropriation is made to backfill the Restitution Fund to support the actions in this section.”

 

Compensation for derivative victims is expanded beyond those who are the parent or legal guardian of a victim who was under age 18 at the time of the crime, to the following:

 

1. A parent, legal guardian, or spouse of the victim (no limitation as to the age of the victim) who is present at the hospital during the period the victim is hospitalized as a direct result of the crime. The treating physician is required to certify that the presence of the derivative victim at the hospital is reasonably necessary for the victim’s treatment.  An alternative basis for compensation—that the derivative victim’s presence is reasonably necessary for the victim’s psychological well-being—is added.

 

2. A spouse of the victim, a parent or legal guardian of the victim, or a derivative victim living in the household of the victim (no limitation as to the age of the victim) at the time of the crime, when the victim died as a direct result of the crime.

 

The maximum amount payable for one crime is increased from $70,000 to $100,000; the maximum amount payable to all derivative victims as the result of one crime.

 

New paragraphs are added to the “Calculation of Income or Support Loss” section to provide that victims and derivative victims are eligible for compensation for loss of income if they were employed or receiving earned income benefits at the time of the crime, or, if they were fully or partially employed or receiving income benefits for a total of at least two weeks in the 12 months preceding the qualifying crime, or had an offer of employment at the time of the crime and were unable to begin employment as a result of the crime.

 

A derivative victim who was legally dependent on the victim at the time of the crime for support, is eligible for compensation even if the victim was not employed or receiving earned income benefits at the time of the crime, if the victim was fully or partially employed or receiving earned income benefits for a total of at least two weeks in the 12 months preceding the qualifying crime, or had an offer of employment at the time of the crime and was unable to begin employment as a result of the crime. 

 

It is required that compensation for loss of income or support be based on the actual loss the victim or derivative victim sustains, or on the wages that would have been earned if employed for 35 hours per week at minimum wage, whichever is greater. For crime victims under age 18 at the time of the crime, compensation for loss of income must be based on the actual loss sustained.

 

CalVCB is required to adopt guidelines by July 1, 2025, for accepting evidence and approving a claim for loss of income or support.  CalVCB is also required to accept any form of reliable corroborating information regarding a victim’s or derivative victim’s income, including a statement from an employer, a pattern of deposits into a bank, pay stubs or copies of checks, a copy of a job offer letter, and income tax records.

 

Gov’t C. 13959 (Amended; AB 160; 2022 Legislation; Effective July 1, 2024, if specified contingencies are met):  Appeal Procedures:

 

The appeal procedures when a claim for victim compensation is denied by the California Victim Compensation Board (CalVCB) is changed to provide that the changes will be operative on July 1, 2024, but only if: “General Fund moneys over the multi-year forecasts beginning in the 2024-25 fiscal year are available to support ongoing augmentations and actions, and if an appropriation is made to backfill the Restitution Fund to support the actions in this section.”

 

The time CalVCB has to issue a written decision after receiving an appeal is shortened from six months to four months. The time for the filing of a request to reconsider a decision is extended from within 30 days of a decision being personally delivered or within 60 days of the decision being mailed, to providing that reconsideration may be requested within 365 days of the personal delivery or mailing of a decision.

 

Gov’t. Code § 13962 (Amended; AB 160; 2022 Legislation; Effective July 1, 2024, if specified contingencies are met):  Trauma Recovery Centers:

 

Information about the existence of trauma recovery centers is added to the list of things (the existence of victim centers and provisions relating to compensation from the Victims of Crime Program) that a law enforcement agency is required to inform crime victims about.

 

Also, new subdivision (g) has been added, requiring the California Victim Compensation Board (CVCB) to provide hospitals that have emergency departments with posters describing the Victims of Crime program and with compensation application forms to distribute to victims, derivative victims, and their family members. These amendments will be operative on July 1, 2024, but only if “General Fund moneys over the multi-year forecasts beginning in the 2024-25 fiscal year are available to support ongoing augmentations and actions, and if an appropriation is made to backfill the Restitution Fund to support the actions in this section.”

 

Pen. Code § 236.21 (New; SB 376):  Human Trafficking Advocates and Support Persons:

 

A victim of human trafficking has the right to have a human trafficking advocate and a support person of the victim’s choosing present at an interview by law enforcement, a prosecutor, or the suspect’s defense attorney.

 

A law enforcement officer or prosecutor is required to exclude a support person from the interview if the support person’s presence would be “detrimental to the process.”

 

Law enforcement and prosecutors are required to notify a human trafficking victim orally or in writing about the right to have an advocate and support person present, before the commencement of the initial interview, and about the right to have these persons present at an interview by the suspect’s defense attorney or by investigators and agents employed by the defense attorney.

 

An initial investigation by law enforcement to determine whether a crime has been committed and the identity of the suspect(s) does not constitute a law enforcement interview for purposes of this section.

 

Pen. Code § 679.02 (Amended; AB 60):  Victims’ Right to be Notified of Available Community-Based Restorative Justice Programs:

 

The statutory list of rights for crime victims and witnesses is expanded to add the following: For victims, the right to be notified of the availability of community-based restorative justice programs, including programs serving the community, county, county jails, juvenile detention facilities, and CDCR.

 

Also added is this sentence: “The victim has a right to be notified as early and often as possible, including during the initial contact, during followup investigation, at the point of diversion, throughout the process of the case, and in post-conviction proceedings.”

 

Note: Uncodified Section One of this bill sets forth the Legislature’s findings and declarations about restorative justice, including the claim that, “Restorative justice offers the opportunity to better meet the needs that arise when harm has been caused than the traditional criminal legal system.”

 

Pen. Code § 679.027 (New; AB 160; 2022 Legislation; Effective July 1, 2024, if specified contingencies are met) and (Further Amended; AB 60) (July 1, 2024):  Victims’ Right to be Informed of their Rights as Victims:

 

Beginning July 1, 2024, and if specified funding requirements are met, every law enforcement agency investigating a criminal act and every agency prosecuting a criminal act, is required at the time of initial contact with a crime victim, during follow up investigation, or as soon thereafter as deemed appropriate by investigating officers and prosecuting attorneys, to “inform” each victim or the victim’s next of kin, of the rights they may have under “applicable law relating to the victimization,” including rights related to housing, employment, compensation, and immigration relief.

 

Subdivision (c) provides that this new section will become operative on July 1, 2024, “only if General Fund moneys over the multiyear forecasts beginning in the 2024-25 fiscal year are available to support ongoing augmentations and actions, and if an appropriation is made to backfill the Restitution Fund to support the actions in this section.”

 

Law enforcement and prosecuting agencies are also to provide or make available to each crime victim a “Victim Protections and Resources” card, which the Attorney General is required to design and make available by June 1, 2025.

 

The information for this new card may to be included in the Marsy’s Law Rights card required by existing P.C. § 679.026.

 

This new card is required to contain information in lay terms about victim rights and resources, including, but not limited to, the following:

 

1. Labor C. §§ 230 and 230.1, which prohibit an employer from firing, or discriminating against, an employee for taking time off to appear in court as a witness, to obtain a restraining order, to seek medical attention for injuries, to obtain services from a domestic violence shelter, to obtain psychological counseling related to a crime, etc.

 

2. Civil Code § 1946.7, which permits a tenant to terminate a tenancy if the tenant, a household member, or an immediate family member is the victim of a specified crime.

 

3. C.C.P. § 1161.3, which prohibits a landlord from terminating a tenancy or failing to renew a tenancy because of an act of domestic violence, sexual assault, abuse against a tenant or member of the tenant’s household, where the perpetrator is not a tenant of the same dwelling unit as the victim-tenant or the victim-household member.

 

Note that P.C. § 679.027 contains a drafting error, referring to Section 1161.3 as being in the Civil Code, when it is actually in the Code of Civil Procedure. There is no section 1161.3 in the Civil Code. SB 883 (Chapter 311, Omnibus bill, 2023 laws) fixed this error, but 2023’s AB 60 prevails over SB 883 and did not fix the error.

 

4. Information about federal immigration relief available to specified crime victims.

 

5. Information about eligibility for reimbursement for specified expenses from the California Victim Compensation Board, and how to apply. (Gov’t. Code §§ 13950–13966.)

 

6. Information about the Secretary of State’s address confidentiality program for victims of domestic violence, sexual assault, stalking, human trafficking, child abduction, and elder/dependent adult abuse (Gov’t. Code §§ 6205–6210.)

 

7. Information about eligibility for filing a restraining or protective order.

 

8. Contact information for the Victims’ Legal Resource Center (existing P.C. §§ 13897–13897.3), which is a statewide toll-free information service established to provide information and educational materials about the legal rights of victims.

 

9. A list of trauma recovery centers (funded pursuant to existing Gov’t. Code § 13963.1) and their contact information.

 

Note:  AB 60 adds additional information that the Victim Protections and Resources Card must contain: The availability of community-based restorative justice programs, including programs serving the community, county, county jails, juvenile detention facilities, and CDCR.

 

Pen. Code §§ 679.10, 679.11 (Amended), and 679.13 (New; AB 1261):  Non-Citizen Victims and Witnesses of Crime and U-Visas and T-Visas:

 

P.C. § 679.10 (U-Visas) and P.C. § 679.11 (T-Visas) are both amended to make similar changes in each section to the procedures for a non-citizen victim to obtain certification for purposes of obtaining a U-Visa or a T-Visa. These amendments make it easier to apply for certification, make it more difficult for certifying entities to deny certification, and, for P.C. § 679.10, expand certification to indirect victims, bystanders, and “witness victims.”

 

P.C. § 679.10 applies to victims of specified crimes such as sexual assault, rape, torture, kidnapping, murder, stalking, and assault. P.C. § 679.11 applies to human trafficking victims. New P.C. § 679.13 adds a visa procedure for non-citizen informants.

 

A few of the amendments made to both P.C. §§ 679.10 and 679.11:

 

1. Requires the certifying entity to forward the certification to the victim, victim’s family member, attorney, or person representing the victim in immigration proceedings, without requiring the victim to provide government-issued identification.

 

2. Provides that a victim may apply for certification from outside the United States.

 

3. Requires a certifying entity that does not certify a certification, to provide a written explanation for the denial that must include a detailed description of how the victim refused to cooperate.

 

4. Sets forth a deadline by which a certification form must be processed if specified circumstances are present.

 

5. Specifies a number of reasons a certifying entity cannot use to refuse certification:

 

The victim’s criminal history or immigration history;

The victim’s gang membership or gang affiliation;

The certifying entity’s belief that the petition will not be approved by the U.S. Citizenship and Immigration Services;

The victim has an open case with another certifying entity;

The extent of the harm the victim suffered; the victim’s inability to produce a crime report from a law enforcement agency; and

The victim’s cooperation or refusal to cooperate in a separate case.

 

P.C. § 679.10 is also amended to authorize a certifying entity to approve certification for direct victims, indirect victims, bystanders, and “witness victims.”

 

A “direct victim” is defined as a person who has suffered direct harm or who is directly and proximately harmed as a result of criminal activity.

 

An “indirect victim” is defined as a qualifying family member of a direct victim if the direct victim is incompetent, incapacitated, or deceased.

 

Indirect victims are required to cooperate in the investigation or prosecution, but are not required to possess information about the crime itself.

 

A “bystander or witness victim” is defined as an individual who was not the direct target of the crime, but who nevertheless “suffered unusually direct injury” as a result of the qualifying crime.

 

New P.C. § 679.13 creates a procedure for a non-citizen “qualified criminal informant” to obtain certification for purposes of obtaining an S-Visa. Much of the language is similar to P.C. §§ 679.10 and 679.11.

 

A “qualified criminal informant” is defined as an individual who meets these requirements:

 

1. Must have reliable information about an important aspect of a crime or pending commission of a crime;

 

2. Must be willing to share the information with U.S. law enforcement officials or become a witness in court; and

 

3. The informant’s presence in the U.S. is important and leads to the successful investigation or prosecution of the crime.

 

Pen. Code §§ 680, 680.3 (Amended) & 680.4 (Repealed & Added; SB 464):  Sexual Assault Evidence Kits May Not be Tested Over a Sexual Assault Victim’s Objection.

 

P.C. § 680 is amended to expand the Sexual Assault Victims’ DNA Bill of Rights to add that a sexual assault victim may request that a sexual assault evidence kit collected from the victim not be tested. A testing a kit that a victim has requested not be tested. Such a kit is not subject to the requirements of this section, or section 680.3 (SAFE-T database), or section 680.4 (audit of untested sexual assault kits.)

 

P.C. § 680.4, which had required law enforcement agencies, medical facilities, and crime labs to conduct an audit of untested sexual assault kits in their possession and submit a report to DOJ by July 1, 2019, is repealed.

 

The new version of P.C. § 680.4 requires these entities to conduct an audit of untested sexual assault kits. Law enforcement agencies and public crime labs are required to create a record in the SAFE-T database by July 1, 2026, for every victim sexual assault kit in their possession that has not had DNA testing completed as of a July 1, 2026.

 

Sexual assault evidence kits collected from suspects are prohibited from being entered into the SAFE-T database, but are included in the required audit. The information about untested sexual assault evidence kits is required to be reported to DOJ.

 

Pen. Code § 3043 (Amended; SB 412 and AB 88):  Notice From Victims (Etc.) Wishing to Attend a Parole Hearing:

 

The notice that the State Department of Corrections and Rehabilitation (CDCR) and the Board of Parole Hearings may require from a victim, victim’s next of kin, member of the victim’s family, victim’s representative, counsel representing any of these persons, or victim support person, who plans to attend a parole hearing is limited to 15 days.

 

Note:  This section continues to require a 30-day notice for anyone else who plans to attend a parole hearing. Previously, anyone other than the direct victim was required to give 30 days’ notice. This included indirect victims, such as a direct victim’s family members. CDCR regulations require only a 15-day notice for direct victims. This bill makes notice requirements the same for direct victims, indirect victims, counsel, victim representatives, and victim support persons.

 

Pen. Code § 11166.4 (Amended; SB 603):  Children Advocacy Center Interviews:

 

This section sets forth a process and standards for the release and use of recordings of interviews done by a children’s advocacy center in the course of a child physical abuse, sexual abuse, exploitation, or maltreatment investigation.

 

Interviews conducted by a children’s advocacy center are confidential and are not public records. However, this section permits a center to release recordings of child forensic interviews to a law enforcement agency authorized to investigate child abuse, to an agency authorized to prosecute juvenile or criminal conduct described in the interview (e.g., a district attorney), and to a county counsel evaluating an allegation of child abuse.

 

Except for the release of recordings to these entities, it is required that a center ensure that all recordings of child forensic interviews be released only in response to a court order.

 

A court is required to issue a protective order as part of the release and set forth details about what the protective order must include.

 

It is also required that there be an additional member of the multidisciplinary team in the case of an Indian child; a representative from the child’s tribe, such as a tribal social worker, a tribal social services director, or tribal mental health professional.

 

Pen. Code § 11167 (Amended; AB 391):  Reports of Child Abuse by Non-Mandated Reporters:

 

The procedures for a child abuse report made by a non-mandated reporter have been changed.  This amendment provides that when receiving a report of known or reasonably suspected child abuse or neglect, an agency specified in P.C. § 11165.9 (i.e., sheriff’s or police department, probation department, county welfare department) shall ask the reporter to provide all of the following information in the report; name, telephone number, the information that gave rise to the knowledge or suspicion, and the source or sources of information that gave rise to the knowledge or suspicion.

 

If the reporter refuses to provide a name or telephone number, the agency shall make efforts to determine the basis for the refusal and advise the reporter that identifying information will remain confidential.

 

Pen. Code § 11171 (Amended; AB 1402):  Costs of Child Abuse Medical Evidentiary Examinations:

 

The cost of a medical evidentiary examination is not to be charged to a victim of child physical abuse or neglect. The cost of diagnostic treatment is required be separate from the cost of the medical evidentiary exam.  The state’s Office of Emergency Services (OES) will reimburse the cost of medical evidentiary exams, subject to an appropriation by the Legislature.

 

Each county’s board of supervisors is to authorize a designee to submit invoices to OES for medical evidentiary exams done by Sexual Assault Response Teams (SART), Sexual Assault Forensic Examiner (SAFE) teams, and other qualified medical evidentiary examiners. The intent is to have the designee submit invoices to OES, rather than having numerous examiners throughout a county submitting invoices.

 

A flat reimbursement rate is to be established. OES will assess and determine a fair and reasonable reimbursement rate every five years.

 

Pen. Code §§ 13897.1, 13897.2 (Amended; SB 86):  The Victims’ Legal Resource Center for Crime Victims Website:

 

The Victims’ Legal Resource Center for crime victims, which requires the operation of a statewide toll-free information service, is expanded to also require an Internet website.

 

It is required that the website include a summary of crime victim rights and resources, including the following:

 

1. Information about statutory and constitutional rights, including Marsy’s Law;

 

2. Links to victim resources offered by the state and counties;

 

3. Links to public or private entities that have resources the center determines are relevant and appropriate;

 

4. A summary of the California criminal justice process;

 

5. Information on obtaining restitution from the California Victim Compensation Board; and

 

6. Information on legal protections for victims and their families.

 

Welf. & Insti. Code § 742 (Amended; AB 60):  Victims in Juvenile Cases; Community-Based Restorative Justice Programs and Processes:

 

Victims in any juvenile case be notified about the availability of “community-based restorative justice programs and processes,” including programs serving the community, county, county jails, juvenile detention facilities, and State Department of Corrections and Rehabilitation (CDCR).

 

The victim “shall be notified as early and often as possible, including, but not limited to, during the initial contact, during followup investigation, at the point of diversion, throughout the process of the case, and in all post-conviction proceedings.”

 

Notes: 

 

This bill makes similar amendments to P.C. §§ 679.02 and 679.027.

Uncodified Section One of the bill sets forth the Legislature’s findings and declarations about restorative justice, including the claim that “Restorative justice offers the opportunity to better meet the needs that arise when harm has been caused than the traditional criminal legal system.”

 

W&I § 15630 (Amended; AB 1417) Elder and Dependent Adult Abuse Reporting Requirements:

 

Amendments to this section have simplified the reporting requirements for “mandated reporters” of elder and dependent adult abuse occurring in long-term care facilities.  The reporting requirements do not depend on the type of abuse:  E.g., physical abuse that results in serious bodily injury, physical abuse that does not result in serious bodily injury, abuse caused by a resident with dementia where there is no serious bodily injury; and abuse that is not physical abuse.

 

If the abuse was caused by another resident of the facility with dementia diagnosed by a licensed physician and there was no serious bodily injury, the reporter must submit a written report of the abuse within 24 hours to both the long-term care ombudsman and the local law enforcement agency.

 

In all other instances of abuse, the reporter must immediately, or as soon as possible but no longer than two hours, submit a verbal report to the local law enforcement agency and must submit a written report to these agencies within 24 hours to the long-term care ombudsman, the local law enforcement agency, and the corresponding state licensing agency.

A Pro Subscribers Exclusive: Your Essential Guide to the Fourth Amendment and Search and Seizure.

This annual compendium of Fourth Amendment and search and seizure issues, compiled by retired Deputy District Attorney Robert Phillips, includes concise but detailed discussion of the most important guidelines you need on these issues. Whether you are an officer, investigator, attorney preparing for a motion, or a judge deciding a Fourth Amendment issue, you will find this resource invaluable. According to retired Superior Court Honorable Commissioner Stephany Joy, this was among the “most referenced resource” used by her colleague judges on the Sonoma County Superior Court criminal bench. 

A resource second-to-none in California, this 23rd annual update comprises 20 searchable chapters covering the Fourth Amendment A through Z. And it’s all accessible on your cell phone, laptop, or desk top computer.

Included for our Pro subscribers, discussions of:

• The Constitutional basis for searches and seizures
• Due Process
• Double Jeopardy
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• Civil Liability and Qualified Immunity
• Standards of Proof
• The Trial Court and Prosecutor’s Immunity
• Consensual Encounters, Detentions and Arrests
• Use of Force
• Warrantless Searches and Seizures

And much, much more

Mr. Phillips also will be updating his Miranda and the Law – The Fifth Amendment later this year. The 2022 Edition is currently posted on the Legal Update website. With 10 chapters, it’s a virtual bible on the Miranda Rule and associated constitutional considerations.

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A special note from our publisher: For those who know Robert Phillips, his dedication to our subscribers is unmatched.  He has devoted much of his time during retirement researching new case decisions and changes in the law.  For example, the latest update is more than 2,000 pages plus 105 pages of the detailed table of contents.  In addition to spending nearly a year of research on this project, he spends months editing and formatting the lengthy document. All of this is offered at no additional cost to our Professional Subscribers. We thank our Professional Subscribers for your support in making our website possible.  If you are not already a Professional Subscriber, we ask that you consider upgrading to Pro by logging in and clicking here.  Our 50% off promotion is still available if you sign up now.  Your membership supports our ability to bring you these important resources, including the research and publication of this critical material. If you are feeling extra tipsy and would like to offer Mr. Phillips a direct donation, please click here to offer a token of your appreciation.  Thank you for your consideration.  Stay safe!

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TABLE OF CONTENTS

A Pro Subscribers Exclusive: Your Essential Guide to the Fourth Amendment and Search and Seizure.

This annual compendium of Fourth Amendment and search and seizure issues, compiled by retired Deputy District Attorney Robert Phillips, includes concise but detailed discussion of the most important guidelines you need on these issues. Whether you are an officer, investigator, attorney preparing for a motion, or a judge deciding a Fourth Amendment issue, you will find this resource invaluable. According to retired Superior Court Commissioner Stephany Joy, this was among the “most referenced resource” used by her colleague judges on the Sonoma County criminal bench. 

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New and Amended Statutes Edition (Effective January 1, 2023)

It has been an exciting year for us at Legal Updates (legaludpates.com®). Our state legislators were busy in 2022, making numerous changes to laws that affect your profession. Retired Deputy District Attorney Robert Phillips has been closely monitoring these changes, as he has for more than 30 years. Mr. Phillips just finalized the 2023 New and Amended Statutes Edition – comprising 148 pages of material. This edition is routinely one of our most sought-after publications of the year and has been described as a “must have” for law enforcement officers, attorneys and judges.  

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TOPICS COVERED IN OUR NEW AND AMENDED STATUTES UPDATE:

• Abortion
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• Bounty Hunters
• Child Abuse and Neglect
• Cyberbullying 
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• Disorderly Conduct
• DNA
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• Drugs
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• Human Trafficking
• Immigration and Undocumented Residents
• Juveniles and Non-Minor Juvenile Court Dependents
• Manslaughter
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• Prostitution
• Racial Issues
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• Hand Dealers
• Trafficking
• Substance Abuse
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• Vehicle Code Violations
• Wiretapping and Eavesdropping

DISCLAIMER:  Use of the California Legal Update, the legalupdate.com website, any associated link, or any direct communication with Robert Phillips, does not establish an attorney-client relationship.  While your privacy will be respected whenever possible, communications between you and Mr. Phillips are neither privileged nor confidential, either constitutionally or statutorily, and may be revealed to third persons when and if necessary.  Further, advice or information received from Robert Phillips is often a matter of opinion and does not relieve the recipient of the responsibility of conducting his or her own research before using such information including, but not limited to, in written court documents or in court proceedings. Mr. Phillips does not provide legal advice or opinions to private persons who are (or may be) a party to a criminal or civil lawsuit, or to any other private person seeking legal advice.  Individual and specific legal advice may be provided to law enforcement officers, attorneys (or their paralegals or interns), judges, instructors, and/or students of the law when necessary to the person’s professional or educational position. Publications by LEGALUPDATES.COM® does not and is not intended to, constitute legal advice.  Instead, all information, content, and material is for general informational purposes only and may not address your particular situation.  Please contact your attorney to obtain legal advice with respect to your particular legal matter.  For further information, please review our terms and conditions https://legalupdates.com/terms-condition at LEGALUPDATES.COM. Lastly, the California Legal Update is not associated with any specific prosecutorial or law enforcement agency.

By Robert Phillips, Deputy District Attorney (Ret).

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Shooting the Messenger: First Amendment Freedom of Speech and the Public Employee 

February, 2022

The First Amendment to the United States Constitution provides Americans with five basic freedoms: Freedom of speech, press, petition, assembly, and religion.  While all five are certainly important, the freedom of speech—sometimes referred to as the “freedom of expression,” and often recognized as the cornerstone of America’s democracy—is arguably the most cherished of the five.

Then along came “social media,” available to anyone with access to a computer and coming in a wide variety of forms; i.e. Facebook, Snapchat, Twitter, Instagram, and many others.  The advent of social media suddenly empowered the quietest and most introverted of citizens—to whom no one ever before paid attention—with the ability to broadcast his or her views—unpopular or not; truthful or not—around the world with the stroke of a computer key.  And along with this new-found uncontrolled power in the exercise of our freedom of expression—sometimes used without giving the words we use or the ideas we express a lot of thought—came the propensity for getting ourselves in trouble.

But we’re getting ahead of ourselves.  The purpose of this article is to discuss the sometimes contradictory, and most often confusing, case authority that has sought a balance between a public employee’s (including a prosecutor’s and a cop’s) First Amendment inherent freedom of expression, with his or her employer’s right to impose restrictions on that employee’s rights, at least when the challenged speech affects the employer’s smooth and efficient operation of his or her office.

One of the first cases involving a prosecutor getting herself into trouble by exercising what she believed at the time to be her constitutionally protected freedom of speech rights is the United States Supreme Court decision of Connick v. Meyers.[1]

Connick v. Meyers:

In Connick, Plaintiff/Respondent Sheila Myers was employed by the New Orleans Parish District Attorney’s Office as an Assistant District Attorney.  Her job was to prosecute criminal cases; a task she had competently performed for some five and a half years.  In 1980, Myers was informed that she was scheduled to be transferred to prosecute cases in a different section of the criminal court.  She vehemently opposed the proposed transfer, believing that such a move would create a conflict for her in that she was involved in a counseling program for convicted defendants released on probation into the section of the criminal court to which she was to be transferred.[2] 

Myers’ pleas—including those made directly to the District Attorney himself; Defendant/Petitioner Harry Connick—all fell on deaf ears.  Not one to just rollover, Myers decided to document her position by preparing a questionnaire seeking out possible issues within the office.  She hoped to submit her questionnaire to each of the office’s fifteen assistant district attorneys. 

Among the fourteen questions on Myer’s questionnaire were inquiries as to the office’s transfer policy, office morale, the need for a grievance committee, the level of confidence in the office’s supervisors including whether the employees “had confidence in and would rely on the word” of various superiors in the office, and whether the questioned employee felt pressure to work on political campaigns.[3] 

When District Attorney Connick got word of the questionnaire, described to him as a problem that was generating a “mini-insurrection” within the office, he immediately fired Myers, telling her that the cause of her termination was her refusal to accept the transfer.[4]  Myers sued in federal court pursuant to 42 U.S.C. § 1983, attempting to get her job back along with compensatory and punitive damages.

The federal district court, finding that Myer’s questionnaire was the real reason for her termination as opposed to her refusal to be transferred, reversed, awarding her back pay, damages, and attorney’s fees.[5]  The Fifth Circuit Court of Appeal affirmed.[6]  The United States Supreme Court granted certiorari.[7]

The United States Supreme Court, in a split 5-to-4 decision, reversed.  Citing among others of the High Court’s relevant cases[8] the 1968 landmark decision of Pickering v. Board of Education,[9] the Supreme Court held that Myers’ firing did not violate her First Amendment rights.  In so finding, the Court noted that it is an issue of balancing the First Amendment rights implicated by Myers’ questionnaire with the District Attorney’s right to prevent any disruption in the smooth operation of his office.  The Court here ruled in favor of the District Attorney, overruling the lower courts’ (trial and appellate) rulings to the contrary.  How the Court reached this conclusion is instructive.

Using Pickering as its primary authority, the Court noted that in deciding an issue such as this one, a court is required “to seek a balance between [1] the interests of the [employee], as a citizen, in commenting upon matters of public concern, and [2] the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[10]  In reversing the lower courts’ rulings in this case, the Supreme Court held that the rule of Pickering had been “misapplied” in this case.  “(C)onsequently,” it was noted in the majority opinion that both the district (trial) court and the Fifth Circuit Court of Appeal “erred in striking the balance for respondent” Myers.[11]        

The Supreme Court held here that it was error in the first instance for the District Court to rule that the questionnaire itself concerned “matters of public importance and concern.”[12]  To the contrary, the Court found that “Myers’ questionnaire, although not ‘wholly without First Amendment protection,’ primarily concerned only internal office matters and ‘that such speech is not a matter of “public concern,” as this term is defined in Pickering.’”[13]   

In so noting, the Court emphasized that Pickering points out that public employees do not forfeit their First Amendment constitutional right to comment on matters of public concern merely by the fact of their employment.  However, when the employee’s comments are not matters of public concern (or maybe only of limited concern), and instead affect only (or primarily) the efficient operation of the public office with whom the person is employed, then the First Amendment does not prevent that employee from being penalized by her employer, whether fairly or not, as Sheila Meyers was in this case.[14]   

In its ruling, the Court describes the history behind the development of the rule in Pickering,” culminating in the Pickering decision itself where it was held that a teacher could not constitutionally be fired for expressing his concerns about the internal workings of his school’s Board of Education when those concerns dealt with matters of public interest.  In Pickering, the “matters of public concern related to the allocation of moneys obtained from taxpayers through various public bond issues.  Per the Pickering Court, the issues raised by teacher Marvin Pickering in a letter he sent to a newspaper editor concerned “a question (about which) free and open debate is vital to informed decision-making by the electorate.”[15]

The Court here, in Connick v. Myers, further lists its various rulings subsequent to the Pickering decision, all dealing with the First Amendment rights of school teachers to comment on issues of public concern, whether done so publicly or privately.[16]  In contrast, Myers’ questionnaire was held to be of limited public concern, dealing primarily with in-office issues.

It must be noted, however, that the ruling in Connick does not mean that the questions raised in Myers’ questionnaire did not, in some ways, implicate the First Amendment.  Question #11, for instance, asking the individual assistant district attorneys whether they “ever feel pressured to work in political campaigns on behalf of office supported candidates,” was noted to deal with an issue of some public concern.[17] However, contrary to the district court’s ruling, this fact alone did not shift the burden of proof over to the District Attorney to justify his decision to fire Myers.  But rather, the fact that one or more of the questions in Myers’ questionnaire may have been of some public concern was merely a single factor to consider when balancing it with the District Attorney’s right to subsequently dismiss Myers in the interest of the office’s smooth operation.[18] 

On the issue of whether the law’s balancing requirement justified Myers’ dismissal from the office despite some evidence of a First Amendment violation, the Court agree with the district court that there was insufficient evidence here that the questionnaire impeded Myers’ ability to perform her responsibilities as an assistant district attorney.  What the Court did find, however, was that Myers’ questionnaire was an act of insubordination which interfered with the District Attorney’s Office’s working relationships.  “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.”[19] 

The Court further failed to “see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.”[20] In so ruling, the Court specifically noted that question 10—asking whether or not the assistant district attorneys had confidence in and relied on the word of five named supervisors—constitutes “a statement that carries the clear potential for undermining office relations.”[21]

In an interesting summation of Sheila Myers’ dilemma, the Court noted further that once her questionnaire was determined to be a matter of only limited public concern, she was basically left with no recourse.  Whether or not she was unfairly dismissed from her position as a prosecutor is nothing the federal courts can resolve for her.  Per the Court: “(O)rdinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.”[22]  In discussing these limitations on this issue, the Court noted: “We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.”[23]

Highlighting the fact that all this balancing with its legal mumbo jumbo is subject to honest and educated differences of opinion, a four-justice dissent reached exactly the opposite conclusion.  Specifically, the dissent summarized it analysis—discussed in detail over some thirteen pages of more legal mumbo jumbo—by simply noting that in the minority justices’ opinion, Sheila Myer’s dismissal was illegal under the First Amendment “(b)ecause the questionnaire addressed such matters (of public concern) and its distribution did not adversely affect the operations of the District Attorney's Office or interfere with Myers’ working relationship with her fellow employees.”[24]

Rather than taking the time and effort to analyze the dissenting opinion, which, by itself, is of limited value given that it is just that; a “dissenting opinion,” we shall move on to the next important United States Supreme Court case dealing with a prosecutor’s exercise of his First Amendment freedom of expression, albeit in a different context, getting that prosecutor into trouble with his bosses.

Garcetti v. Ceballos:

In Garcetti v. Ceballos,[25] Plaintiff/Respondent Richard Ceballos was a deputy district attorney for the County of Los Angeles, and had been since 1989.  Defendant/Petitioner Gil Garcetti was the elected district attorney at the time.  In February, 2000, a defense attorney approached DDA Ceballos about a pending case.  Ceballos was a calendar deputy in his office’s Pomona branch where he exercised certain supervisory responsibilities over other lawyers. For defense attorneys to informally approach Ceballos, as the calendar deputy, about the underlying issues in their case was not unusual.[26]  This is all to say that this wasn’t Ceballos’ first rodeo.

The defense attorney showed Ceballos where there were certain inaccuracies in an affidavit used to obtain a critical search warrant.  Although already having filed a motion to traverse the warrant, the attorney hoped to handle matters informally by warning Ceballos ahead of time that there were problems with the warrant officer-affiant’s credibility.[27] 

Taking seriously what he saw to be his professional and ethical obligations as a prosecutor, DDA Ceballos took the time to examine the warrant affidavit and even visit the location described therein, concluding that there were in fact some serious factual misrepresentations in the warrant.  Discussing the apparent problems with the warrant affiant over the telephone did not alleviate Ceballos’ concerns.  He therefore discussed the issue with his supervisors.  He also wrote up a trial memorandum describing the problems as he saw them, and recommended, as a result, dismissal of the entire case.[28] 

A meeting was subsequently held between Ceballos, his supervisors, the warrant affiant, and other supervisory employees from the affiant’s law enforcement agency.  No resolution was reached, however, with the affiant’s lieutenant, in a heated exchange, “sharply criticizing Ceballos for his handling of the case.”[29]  Compounding Ceballos’s minority status on this issue was the fact that his own supervisors overruled him, declining to approve the dismissal of the case.  And then, adding insult to injury, at the subsequent in-court motion to traverse the warrant (at which Ceballos put in the embarrassing position of being called as a defense witness), the trial court declined to grant the defense motion or to otherwise suppress the evidence.[30]  (It is unknown what the ultimate outcome of this criminal case might have been.)

Following this disagreement, DDA Ceballos was reassigned from his calendar deputy position to being a run-of-the-mill trial deputy, and was moved to another courthouse.  He also alleged that he was denied a promotion.  After an internal employment grievance was denied, it being found that he was not the victim of any retaliation, Ceballos filed a federal lawsuit pursuant to 42 U.S.C. § 1983, alleging that his First and Fourteenth Amendment rights were violated.  In his lawsuit, Ceballos alleged that the Los Angeles District Attorney’s Office retaliated against him for seeking the dismissal of the criminal case discussed above.  Petitioners (i.e., the office) denied any retaliation, claiming that everything Ceballos complained about was explained by “legitimate reasons such as staffing needs.”[31] 

Using the Pickering balancing test, the Federal District Court granted the District Attorney’s motion for summary judgment, ruling that Ceballos wrote his memo pursuant to his employment duties and that what he did not involve a public interest.  The court ruled that Ceballos was therefore not entitled to First Amendment protections from being disciplined for what he had written in his memo or how he had handled the case in issue.[32]

On appeal, the Ninth Circuit Court of Appeal reversed,[33] holding, in a nutshell, that  “Ceballos’s allegations of wrongdoing in the memorandum constitute protected speech under the First Amendment.”[34] In other words, the Ninth Circuit determined that contrary to the trial court’s findings, Ceballos’ handling of the case at issue, being (in the Court’s opinion) a matter of public concern, was protected by the First Amendment. 

On certiorari, the United States Supreme Court reversed in another five-to-four decision, criticizing the Ninth Circuit for failing to “consider whether the speech was made in Ceballos’ capacity as a citizen,”  The Court noted that instead, the Ninth Circuit “relied on (erroneous) Circuit precedent rejecting the idea that ‘a public employee’s speech is deprived of First Amendment protection whenever those views are expressed, to government workers or others, pursuant to an employment responsibility.’”[35]

In so ruling, the Court rehashed the judicial history leading up to the Pickering balancing test, having developed over the years, case by case, from “the (originally) unchallenged dogma . . . that a public employee had no right to object to conditions placed upon the terms of employment,” to the current rule reflecting the fact that the First Amendment protects even “a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.”[36]

In perhaps a serious understatement, the Court notes that conducting the necessary inquiries under Pickering “sometimes has proved difficult.”  This, the Court says, is a “necessary product of ‘the enormous variety of fact situations in which critical statements by . . . public employees may be thought by their superiors . . . to furnish grounds for dismissal.’”[37]  The Court, however, makes another stab at it, hoping to simplify the necessary thought process to the degree possible. 

“Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. (Citation omitted.)  If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.  (Citation omitted.) If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. (Citation omitted.) This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations.”[38]

            As with any citizen who enters government service, Ceballos was bound to accept certain limitations on his freedoms; particularly his First Amendment freedom of speech.  Adding to Ceballos’ dilemma is the fact that government employers, like private employers, need to be able to exercise some degree of control over their employees’ words and actions if they are to provide efficient public services.  At the same time it is recognized, however, that “a citizen who works for the government is nonetheless a citizen. . . . So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”[39]  Balancing these often conflicting interests is what Pickering and its prodigy has attempted to accomplish. 

With these principles in mind, as vague and flexible as they may be, DDA Ceballos’ situation may be considered.

The Court first noted that Respondent Ceballos believed that there were some serious legal issues in a particular criminal case, and expressed his concerns orally to his supervisors as well as in a written internal office memo.  The Court found that the fact that Ceballos did not publicize his concerns beyond the office was not dispositive.  “Employees in some cases may receive First Amendment protection for expressions made at work.”[40]

            Also not dispositive was the fact that the memo concerned the subject matter of Ceballos’ employment.  As noted by the Court; “(t)he First Amendment protects some expressions related to the speaker’s job.”[41]

What the Court found to be dispositive in this case was the context in which Ceballos’ memo and verbal concerns were expressed; most importantly, “pursuant to his duties as a calendar deputy.”  With this factor in mind, the Court held that if there is a rule to be discerned from this case, it is this:  “(W)hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[42]

In Ceballos’ case, it was noted that he was not acting as a private citizen when he went about his daily professional activities as a calendar deputy district attorney, but rather as a paid government employee.  Further, he was not speaking as a private citizen in writing the memo at issue here, addressing what he, in his professional capacity, believed was the proper disposition of the criminal case at issue.  Under these circumstances, his supervisors were not prohibited by the Constitution from evaluating his performance nor correspondingly determining his office assignments and his pay grade.  Ceballos’ First Amendment rights, therefore, were not violated by the District Attorney taking what was apparently considered remedial; i.e., reassigning him elsewhere in the office and denying him a promotion.[43]

Again, as with Connick v. Meyers, four justices dissented—this time in three separate opinions—while making contrary arguments that when read in a vacuum, make perfect sense.[44]  But again, being dissenting opinions, we won’t expend the time and space necessary to properly and thoroughly discuss them here.  Instead we’ll move along to one more case involving the plight of a prosecutor when accused by his bosses of disrupting the smooth operation of his office.

Eng v. Cooley:

The Los Angeles District Attorney’s Office was again the subject of another alleged employee-retaliation case when Deputy District Attorney David Eng, taking an unpopular position as a member of an office task force and thus incurring the wrath of the then District Attorney, Steve Cooley, was subsequently disciplined and later fired.  The facts and circumstances of this case (taken from the perspective of the plaintiff, David Eng, as an appellate court must do in the context of an interlocutory appeal of a qualified immunity decision[45]) were subsequently reported in the Ninth Circuit Court of Appeals’ decision of Eng v. Cooley.[46]

In his quest to become Los Angeles’ District Attorney, one of Steve Cooley’s campaign promises made to the public was to investigate allegations of fraud and environmental crimes related to the planning and construction of the Los Angeles Unified School District's Belmont Learning Complex.  Upon election, Cooley formed a task force, comprised of high-ranking deputies from within the office, to do just that.  What become known as the Belmont Task Force was headed by Special Assistant Anthony Patchett.  Eng—a senior deputy district attorney—was appointed to be a member of the Task Force.  Patchett—perhaps unwisely—announced before the Task Force even got under way that he would deliver “slam dunk” indictments of prominent individuals involved with the Belmont project.[47]

Well, things did not turn out as Patchett had hoped.  Much to the contrary, the Task Force concluded after a seven-month investigation that the building site for the Belmont Project was, and always had been, environmentally safe, and that no indictments should issue.  When Eng briefed Patchett on the Task Force’s conclusions, the latter flipped out, telling Eng that if the Task Force did not say what he believed Cooley wanted to hear, Eng himself would suffer “sever [personal] consequence.”

Eng did not bow to the pressure, however, declining to tailor the Task Force’s report to accommodate Patchett’s own political agenda.  Instead, he reported the Task Force’s conclusions to Cooley as originally written.  Patchett, in response, made his own presentation to Cooley, which included proposed indictments against several prominent individuals.  Cooley’s executive staff chose Eng’s recommendations over Patchett’s, making for one very unhappy Special Assistant.[48]

Meanwhile, The Los Angeles Times reported in a published article that the Los Angeles Unified School District’s lease-purchase agreements (i.e., “Certificates of Participation”) used to finance the Belmont project had been canceled and that with the reinitiation of the project, new financing, at substantially higher interest rates, would have to be found.  According to Eng, the original agreements had been canceled because Patchett had improperly leaked to the IRS an allegation that the School District had committed fraud in purchasing the Belmont property; an allegation later determined by the Task Force to be false.  This, apparently, was all information that Cooley was not happy to hear.  Reflecting who’s side of this argument Cooley was on, it was noted that during discussions of the Belmont financing issue between Cooley, Patchett and Eng, when Eng purportedly argued at the meeting that the Certificates of Participation used to finance the purchase of the Belmont property were legal and that Patchett’s reporting otherwise to the IRS was wrong and should be rectified, Cooley allegedly became angry at Eng, telling him to “shut up.”[49]

            In what eventually developed into a demonstration of why it’s not wise to violate the old adage, “don’t shoot the messenger,” Cooley and members of his staff (including Patchett, co-defendants Steven Sowders and John Zajeck, who replaced Patchett as head of the Task Force, and others) met frequently to discuss ways of forcing David Eng out of the District Attorney’s Office.[50]

            The case decision expends several pages discussing various acts of retribution instigated by Cooley’s lieutenants in an unsuccessful attempt to convince Eng to resign from the office.  Those efforts included accusations of sexual harassment (the alleged victim of which denied ever occurred), a transfer to a branch office’s juvenile division (a position typically occupied by new-hires in the office), criminal prosecution for misusing the office’s computers (charges that were dismissed due to the sole witness refusing to testify), and various suspensions (with and without pay) that were eventually rescinded by the County Civil Service Commission.[51] 

            The Los Angeles Times got involved again, publishing an article entitled “D.A. Accused of Payback Prosecution.”  In this article (which included an interview with both Eng and an attorney hired by Eng; Mark Geragos), it was brought to the public’s attention that Eng had been prosecuted (as noted above) in alleged retaliation for refusing to file criminal charges against individuals involved in the Belmont School project, and that he was systematically being punished for having complained about Pratchett’s leaking of information to the IRS.[52]

            The L.A. Times article only served to give new life to the DA’s attacks on Eng.  Shortly after its publication, co-defendant Steven Sowders (along with co-defendant Curt Livesay) blatantly threatened both Eng and Geragos that the office would “come up with” additional allegations against Eng if he didn’t just give up and leave.  When Eng failed to succumb to the pressure, Sowders made good on his threats, serving him with yet another formal “Notice of Intent to Suspend without Pay,” rehashing some of the same allegations as alleged before while adding additional accusations that had been dug up from incidents that had allegedly occurred years before.[53] 

Finally, when Eng ignored a suggestion that all would be forgiven if he would simply agree to publish a retraction of the allegations made in the L.A. Times article, disavowing similar accusations Geragos’ made that were reported by the Times, and publicly apologizing to Cooley,”[54] all the monkeying around with Eng’s career was finally ended with Eng being terminated outright.  This lawsuit, filed by Eng in the Federal District Court, followed.  

            In his lawsuit, filed pursuant to 42 U.S.C. § 1983, Eng alleged that the DA’s Office illegally retaliated against him for exercising his right to publicly comment on both the Belmont School Project and Patchett’s leaks to the IRS, and to speak through his attorney to the news media, such retaliation alleged to be in violation of the First (freedom of speech) and Fourteenth (due process) Amendments.[55]  

The District (trial) Court granted the defendants’ (i.e., Cooley and his subordinates) motion for summary judgment with respect to the issues related to Eng’s recommendation to District Attorney Cooley that no criminal charges be filed against individuals associated with the Belmont project.  The District Court’s reasoning was that “Eng was merely fulfilling his job duties when he gave his Task Force recommendation,” that such recommendations did not involve a matter of “public concern,” and that therefore those statements were “not protected under the First Amendment.”[56]  This ruling, appearing to be consistent with the rules set out above, were not challenged on appeal.  Internal disciplinary measures taken against Eng for making these recommendations, as unfair as they may appear, is also consistent with the rule as noted earlier in Connick v. Myers that as an issue that fails to qualify as a “matter of public concern,” and merely one of the office’s imposition of internal sanctions, it is not something that can be heard in a federal court.[57]

            As for Eng’s other allegations relative to his publicized comments, whether made by himself or through Mark Geragos as his attorney, the District Court determined that Eng had legitimate First Amendment claims—they involving matters of public concern—that had to be decided by a jury.[58]  The District Attorney appealed.

            The Ninth Circuit Court of Appeal unanimously affirmed.  In so doing, the Court provided us with a more detailed, somewhat more understandable, and certainly more organized, discussion of the Pickering elements.

            First, however, the Court noted that when alleging a violation of his own First Amendment rights, Eng was allowed to include the retribution he may have suffered from statements made by Mark Geragos; his attorney.  Per the Court: “Because Geragos spoke on Eng’s behalf in his capacity as Eng’s lawyer, his words were Eng’s words as far as the First Amendment is concerned.”[59] Eng himself therefore had a personal First Amendment interest in Geragos’ speech.

            That issue resolved, the Court moved onto the Pickering elements as they relate to Eng’s lawsuit, and whether the District Court correctly decided that Eng did in fact have a viable claim, in effect, that his First Amendment rights had been violated. 

Quoting Pickering, the Court first noted that “(i)t is well settled that the state may not abuse its position as employer to stifle ‘the First Amendment rights [its employees] would otherwise enjoy as citizens to comment on matters of public interest.’”[60]  The problem, as noted by the Court, is that the validity of such a claim is dependent upon a “balanc(ing) between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[61]

            Considering the relevant factors as described in Pickering, and taking into account the cases that have wallowed in this quagmire since, while also noting that the rules have “dramatically, if sometimes inconsistently” evolved, the Court was able to summarize Pickering’s “tangled history”[62] into five necessary considerations:

(1) Whether the plaintiff spoke on a matter of public concern;

(2) Whether the plaintiff spoke as a private citizen or public employee;

(3) Whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action;

(4) Whether the state had an adequate justification for treating the employee differently from other members of the general public; and

(5) Whether the state would have taken the adverse employment action even absent the protected speech.[63]   

            Of particular interest to the Court here was whether the issues raised and commented on publicly by Eng were “matters of public concern.”  Noting that we have not yet attempted to define in this article what is meant by the phrase, it’s worth taking a minute to discuss the Ninth Circuit’s explanation of what it means.

            First, it is noted that as a “pure question of law,” “the plaintiff bears the burden of showing that the speech addressed (is) of public concern.”[64]  As for what the phrase really means, the Court in previous decisions has held that “(s)peech involves a matter of public concern when it can fairly be considered to relate to ‘any matter of political, social, or other concern to the community.’ . . . ‘Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.’”[65]  If it is determined that “the speech in question does not address a matter of public concern, then the speech is unprotected, and qualified immunity should be granted” in favor of the civil defendant.[66]

            In this case, the Court necessarily found against the District Attorney on this issue.  Of primary importance is the fact that neither Cooley nor any of the other civil defendants ever argued that Eng’s statements were anything other than matters of public concern.  And even if they had, the Court held that “there is little doubt that Eng’s speech did (in fact) address matters of public concern.”  “‘[C]ommunication[s] on matters relating to the functioning of government’ . . . are matters of inherent public concern.’”[67] 

            In so ruling, the Court further noted that “(t)he leaking of information (whether true or false) about the School District’s lease-purchase agreements to the IRS was therefore a matter of public concern insofar as it led to the need for additional, more expensive financing for the public school complex.”  Further; “(s)peech that is ‘relevan[t] to the public’s evaluation of the performance of governmental agencies’ also addresses matters of public concern.”[68] 

            On the issue of whether Eng made the statements in issue as a private citizen and not as a public employee (a mixed question of fact and law), this is again something on which the plaintiff bears the burden of proof.  In trying to decipher what this really means, the Court noted that; “(s)tatements are made in the speaker’s capacity as citizen if the speaker ‘had no official duty’ to make the questioned statements, or if the speech was not the product of ‘performing the tasks the employee was paid to perform.’”[69] The plaintiff will lose on this issue only if it is shown that he or she had an official duty to utter the speech at issue.[70]

            Despite these impediments, the Court found that Eng’s statements were made as a private citizen, rejecting the defendants’ “great effort” to convince the Court that, at the very least, Eng’s public statements about the IRS leak were “inextricably related to his work.”  Again noting that a court at this stage of the proceedings must assume the truth of a plaintiff’s factual allegations, the Court determined here that “Eng’s version of the facts plausibly indicates he had no official duty to complain about any leak to the IRS or to authorize Geragos to speak to the press about the retaliation being taken against him.”  As such, the Court determined that Eng’s public comments about these issues were made as a private citizen, satisfying this necessary prerequisite to a finding that, if proven at trial, his First Amendment free speech rights were violated.[71]

The third step (i.e., whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action), being a question of fact, and in light of the requirement that the plaintiff’s allegations are presumed to be truthful at this stage of the proceedings (i.e., pre-trial), the Court found that Eng had sufficiently alleged a First Amendment violation of his rights necessary to prevail on this issue.[72]

More specifically, the Court noted that:

“Eng’s account of the meeting with (co-defendants) Livesay and Sowders, for example, plainly undermines the Defendants’ contrary assertion that the systematic investigations, prosecution, suspensions, and demotion of Eng were not motivated by his speech.  Eng’s further accounts of Cooley’s meetings with his staff to discuss ‘a method of forcing David Eng out of the District Attorney’s Office,’ and Sowders’s threats to both Eng and Geragos following publication of the Los Angeles Times article, all also indicate that Eng’s speech was a ‘substantial or motivating’ factor in the adverse employment action.”[73]

As to whether the District Attorney’s office had adequate justification for treating Eng differently from other members of the general public, the fourth necessary prerequisite to a constitutional violation, the Court first noted that the burden of proof had shifted to the civil defendants to show that under the traditional Pickering’s balancing test, the District Attorney had legitimate administrative interests allowing him to do so that outweighed Eng’s First Amendment rights.[74]  As a rule, absent a civil defendant’s ability to prove that “the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public,” the Court must find for the plaintiff.[75] 

In this case, it was initially noted that defendants did not argue that the Pickering balancing test leaned in their favor.  As such, they forfeited this issue.[76]  

But even if contested, the Court found that Eng’s allegations clearly showed that the defendants would have lost this issue in that “the District Attorney lacked adequate justification for treating Eng differently from other members of the public.”  In balancing the interests, the Court found that the defendant’s overt acts of investigating, suspending, prosecuting, and transferring Eng in retaliation for his speech was not a necessary prerequisite to the District Attorney’s Office’s ability to operate efficiently and effectively.  As such, the Court found that “the full range of adverse employment action appears to have been a politically-motivated effort to silence Eng, who stood to embarrass Cooley by undermining a central plank in his campaign platform.”  The Court therefore specifically found that Cooley and his co-defendants failed to meet their Pickering balancing obligations necessary for a favorable court decision.[77]

Finally, under the fifth element as listed above, having failed the Pickering balancing test, it became the District Attorney’s obligation to show that he would have imposed the same disciplinary measures upon Eng despite the fact that Eng’s First Amendment freedom of speech rights were violated.  “In other words, (the District Attorney) may avoid liability by showing that the employee’s protected speech was not a but-for cause of the adverse employment action.”[78] 

This issue being a question of fact, the Court held that they were again bound by the rule that at this stage of the proceedings, they were required to assume that the plaintiff Eng would be able to prove the facts as he described them, assuming the truth of the plaintiff’s allegations.[79]

Rather than challenging the Pickering balancing issue, the defendants put all their cards into this basket.  As noted by the Court: “Defendants argue that they ‘would have reached the same [adverse employment] decision even in the absence of [Eng]’s protected conduct.’”[80]  Defendants based this argument on the fact that Eng was the subject of other internal investigations, including a criminal prosecution, separate from his tendency to talk to the news media and embarrass his bosses.

The Court rejected this argument, noting that Eng had also alleged (allegations that are presumed to be true) that all these investigations, suspensions, and, as noted by the Court, “apparently baseless charges,” were themselves motivated by his exercise of his First Amendment rights.[81]

Defendants further noted that Eng had scored low on a promotion review, arguably undermining his contention that his failure to get promoted was due to his tendency to speak out publicly.  Eng’s response, however, explained that his low score was a result of the subsequently disproven accusations of sexual harassment and misuse of office computers, these accusations themselves having been motivated by his exercise of his First Amendment rights. 

As a result, the Court found that the defendants had failed to meet their burden of showing that Eng’s constitutionally protected speech was not a “but-for” cause of the disciplinary actions taken against him.[82] 

After findings that both Eng’s and Mark Geragos’ constitutional rights were clearly established by prior case law, negating the defendants’ hopes for a ruling of qualified immunity from any civil liability,[83] the Ninth Circuit affirmed the trial court’s rulings in this case.  The United State Supreme Court is in apparent agreement, having denied certiorari.[84]

Moser v. City of Las Vegas:

Before we end our discussions of this very important topic, one more case warrants mentioning.  Although not involving a prosecutor’s office, it is important because it interjects the issue into this discussion of whether it is wise for a public employee (a police officer, in this case) to use social media when feeling the itch to exercise his or her First Amendment rights, and, as such, how the public employee’s freedom of speech rights might thereby be affected.  Again out of the Ninth Circuit, the case is Moser v. City of Las Vegas.[85]

Officer Charles Moser was a former Navy Seal and current Las Vegas Metropolitan Police Department officer.  Beginning in 2006, Officer Moser was a SWAT team sniper and assistant team leader.  On December 17, 2015, Officer Moser made the unfortunate (as it turned out) decision to post on his Facebook account a comment about a shooting involving the wounding of a fellow Metro officer.[86] 

Officer Moser’s Facebook comment read as follows: “Thanks to a Former Action Guy (FAG) and his team we caught that asshole. . . It’s a shame he didn't have a few holes in him. . .” (The “FAG” comment, as an abbreviation for the in-house term, “Former Action Guy,” was not used in a derogatory sense, and was not an issue in this case.) 

Officer Moser posted this comment while off duty, leaving it up for about two months before deleting it of his own initiative.  However, someone in the meantime had already read it and anonymously filed a complaint with Metro’s Internal Affairs Department, prompting an internal investigation.  Admitting to Internal Affairs the inappropriateness of his comment, Officer Moser explained that he only intended to express his frustration with the fact that the suspect had “basically ambushed one of our officers” and that “the officer didn’t have a chance to defendant himself” by shooting back. Despite his claim of an innocent intent, Officer Moser was transferred out of SWAT and put back on patrol; an action that also resulted in a pay cut.[87]   

His supervisors’ concern was that his comment showed that he had become “a little callous to killing.” It was also noted that the department’s snipers “are held to a higher standard,” being faced with difficult and stressful situations, and that his comment could possibly be used against him as in-court impeachment evidence should he ever have to use deadly force in the future. It was therefore believed to be necessary to relieve him of his SWAT responsibilities.[88]  

Officer Moser filed a grievance with the city’s Labor Management Board, which was denied.  He therefore filed a civil action in federal court seeking to get his SWAT job back. After an evidentiary hearing, the district court granted summary judgment in favor of the defendant City of Las Vegas.  Officer Moser appealed.[89]

The issue, of course, as it was in the previously discussed cases, was where (and how) to draw the line between the free speech rights of a government employee and the government’s interest in avoiding disruption within its agency and maintaining workforce discipline.  Again as with the cases previously discussed, the Ninth Circuit invoked the Pickering balancing test.[90]  In reviewing the Pickering factors as they apply here, the Ninth Circuit reversed the district court’s summary judgment ruling, remanding the case back to the trial court not because the justices necessarily disagreed, but rather for the purpose of reviewing some factual disputes that had not yet been resolved.

The parties did not dispute that Officer Moser’s comments constituted a matter of public concern.   An issue is of “public concern” if it “relates to any matter of political, social or other concern to the community, . . . (or) is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”[91]  Police shootings, per the Court, tend to fall into this category. 

The parties also did not dispute the fact that Officer Moser spoke as a private citizen and not as a representative of the Las Vegas Metropolitan Police Department.  “Statements are made in the speaker’s capacity as citizen if the speaker had no official duty to make the questioned statements, or if the speech was not the product of performing the tasks the employee was paid to perform.”[92]  In this case, the Court found it significant that Officer Moser was home and off duty, using his personal Facebook account, when he made his contested comment.[93] 

It was similarly stipulated between the parties that Officer Moser’s Facebook posting was the reason he was removed from the SWAT team, with his supervisors concerned that his comment was evidence of Officer Moser “grow(ing) callous(ness) to killing.”  It was also believed that his comment could be used against him in court should he ever need to use deadly force as a sniper.[94] 

With the first three Pickering considerations out of the way, the burden shifted to the Metro Police Department to produce evidence supporting either the fourth or fifth Pickering factors; i.e., whether the metro police department had an adequate justification for treating Officer differently from other members of the general public, or whether Metro would have taken the adverse employment action even absent the protected speech.  Conceding that the latter did not apply, Metro argued only that it had adequate justification for treating Officer Moser as they did.[95] 

In evaluating the fourth factor, the Court noted that the Pickering balancing test recognizes that a government employer has “broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.”[96] On this issue, the Court held that the district court had failed to recognize that several factual disputes remained unresolved; a necessary prerequisite to a final decision on this issue.    

First, the meaning of Officer Moser’s comment was not determined.  Officer Moser argued that he only intended to say that the wounded officer should have had the opportunity to get off some defensive shots.  The Metro Police Department, on the other hand, believed that Officer Moser’s comment was meant to advocate the unlawful use of deadly force; i.e., that the officers who captured the suspect should have shot him in retaliation for his earlier shooting of a police officer.[97] 

Under the Pickering balancing test, the former (Officer Moser’s version) is entitled to stronger First Amendment freedom of speech protections than that latter; i.e., when an officer advocates the unlawful use of deadly force.  So it is important for the trial court to make a factual determination of what Officer Moser was intending to say in his Facebook comment. The trial court failed to do this.

Secondly, there remains an unresolved factual dispute as to whether the Metro Police Department provided any evidence of predicted disruption to its operations.  This issue is relevant to the strength of Metro’s interest in efficiency and employee discipline.  The impact of an employee’s speech on the government agency’s operations cannot be resolved until it is determined whether the statement in issue in fact impairs discipline administered by the agency’s superiors or harmony among its co-workers, whether it has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, whether it impedes the performance of the speaker’s own duties, and/or whether it interferes with the regular operation of the law enforcement agency. [98]  The district court failed to make any findings relative to these potential factual disputes.

“In sum, material questions of fact remain as to whether (Officer) Moser’s comment would likely disrupt Metro’s workforce or its reputation. . . . Put differently, Metro has produced no evidence to establish that its interests in workplace efficiency outweigh Moser’s First Amendment interests.”[99] For these reasons, the case had to be remanded for further evidentiary hearings.  Other than a request for an en banc rehearing being denied,[100] there is as of yet no indication in the appellate reports how these evidentiary hearings may be proceeding.

We discuss the Moser case here for two reasons.  First, it is evident that the Ninth Circuit has become comfortable analyzing these public employee First Amendment cases using the five-factor test as first specifically spelled out in Eng v. Cooley, at pages 1070 through 1072, and as described above.  The U.S. Supreme Court has not been heard yet as to whether the Ninth Circuit’s Eng five-step analysis is appropriate.  However, by failing to grant certiorari in Eng v. Cooley, the High Court has certainly indicated acquiescence by its silence.   

Secondly, and perhaps just as importantly, the Moser case demonstrates the inherent dangers whenever a public employee—whether he or she is a prosecutor, a law enforcement officer, or any other public employee—decides to use social media to vent his or her anger or frustrations without first considering the well-known fact that anything put out there is open for anyone and everyone to read.  While you may have a First Amendment right to publish your thoughts and frustrations, whether or not you choose to do so is something you might think about.  Putting those frustrations in writing and publishing them over the Internet only increases the likelihood that they may come back to bite you.

Conclusion:

Aside from the Moser social media issues, this article demonstrates the difficulty courts have had in general, and continue to have, in balancing a public employee’s First Amendment freedom of speech rights with that employee’s boss’s right—or need—to minimize internal discord, hate, and discontent.  As can be seen, it’s an area of the law with any number of divergent opinions, and is seldom going to be an easy issue to decide.  So all we can say at this point is that unless you’re adamant about wanting to see your name in a published appellate court decision, take care in what you say, to whom you say it, the means you use in publicizing what you say, and who you might be upsetting when you say it.   Your career may be at stake.

 

 

 

[1]              (1983) 461 U.S. 138 [103 S.Ct. 1684; 75 L.Ed.2nd 708].

[2]              Id., at p. 140, and fn. 1.

[3]              Id., at p. 141, fn. 2, and Appendix at p. 155.

[4]              Id., at p. 141.

[5]              Myers v. Connick (ED La. 1981) 507 F.Supp. 752.

[6]              Connick v. Myers (5th Cir. 1981) 654 F.2nd 719.

[7]              1982 U.S. LEXIS 1217 [455 U.S. 999; 102 S.Ct. 1629; 71 L.Ed.2nd 865].

[8]              See Keyishian v. Board of Regents (1967) 385 U.S. 589, 605-606 [87 S.Ct. 675; 17 L.Ed.2nd 629];

Perry v. Sindermann (1972 408 U.S. 593, 597 [92 S.Ct. 2694; 33 L.Ed.2nd 570]; and

Branti v. Finkel (1980) 445 U.S. 507, 515-516 [100 S.Ct. 1287; 63 L.Ed 2nd 574].

[9]              (1968) 391 U.S. 563 [88 S.Ct. 1731; 20 L.Ed.2nd 811].

[10]             Connick v. Myers, supra, 461 U.S. at p. 142, quoting Pickering v. Board of Education at p. 458.

[11]             Ibid.

[12]             Id., at p. 143, citing Myers v. Connick, supra, 507 F.Supp, at 758.

[13]             Ibid.

[14]             Ibid.

[15]             Id., at pp. 143-145, quoting Pickering v. Board of Education at pp. 571-572.

[16]             Id., at pp. 145-146, discussing the following:

Perry v. Sindermann (1972) 408 U.S. 593 [92 S.Ct. 2694; 33 L. Ed. 2d 570];

                Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274 [97 S.Ct. 568; 50 L.Ed.2nd 471]; and

                Givhan v. Western Line Consolidated School District (1979) 439 U.S. 410 [99 S.Ct. 693; 58 L.Ed.2nd 619].

[17]             Connick v. Myers, supra, 461 U.S. at p. 149; citing

Branti v. Finkel, supra, at pp. 515-516; and 

Elrod v. Burns (1976) 427 U.S. 347 [96 S.Ct. 2673; 49 L.Ed.2nd 547].

[18]             Connick v. Myers, supra, 461 U.S. at pp. 149-150.

[19]             Id. at pp. 151-152.

[20]             Id., at p. 152.

[21]             Ibid.

[22]             Id. at pp. 146-147; citing:

Board of Regents v. Roth (1972) 408 U.S. 564 [92 S.Ct. 2701; 33 L.Ed.2nd 548;

Perry v. Sindermann, supra; and

Bishop v. Wood (1976) 426 U.S. 341, 349-350 [96 S.Ct. 2074; 48 L.Ed.2nd 684].

[23]             Connick v. Myers, supra, 461 U.S. at p. 147.

[24]             Id., at p. 156.

[25]             (2006) 547 U.S. 410 [126 S.Ct. 1951; 164 L.Ed.2nd 689].

[26]             Id., at p. 414.

[27]             Ibid.

[28]             Ibid.

[29]             Ibid.

[30]             Id., at p. 415.

[31]             Ibid.

[32]             Ibid.

[33]             Ceballos v. Garcetti (9th Cir. 2004) 361 F.3rd 1168.

[34]             Id., at p. 1173.

[35]             Garcetti v. Ceballos, supra, at p. 416.

[36]             Id., at p. 417, citing;

Pickering, supra, at 568; Connick, supra, at 147;

Rankin v. McPherson (1987) 483 U.S. 378, 384 [107 S.Ct. 2891; 97 L.Ed.2nd 315]; and 

United States v. National Treasury Employees. Union (1995) 513 U.S. 454, 466 [115 S.Ct. 1003; 130 L.Ed.2nd 964.

[37]             Id., at p. 418; quoting Pickering v. Board of Education, supra, at p. 569.

[38]             Ibid.

[39]             Id., at pp. 418-419.

[40]             Id., at pp. 420-421; citing

                Givhan v. Western Line Consol. School Dist. (1979) 439 U.S. 410, 414 [99 S.Ct. 693; 58 L.Ed.2nd 619].

[41]             Id, at p. 421; quoting Givhan v. Western Line Consol. School Dist., supra, at p. 414.

[42]             Ibid.

[43]             Id., at pp. 421-422.

[44]             See Id., at pp. 426-450.

[45]             See CarePartners, LLC v. Lashway (9th Cir. 2008) 545 F.3rd 867, 878.

[46]             (9th Cir. 2009) 552 F.3rd 1062.

[47]             Id., at p. 1064.

[48]             Ibid.

[49]             Eng v. County of Los Angeles (2007) 2007 U.S.Dist. LEXIS 111853 (page 7).

[50]             Eng v. Cooley, supra, 552 F.3rd at p. 1065.

[51]             Id., at pp. 1065-1066.

[52]             Ibid.

[53]             Id., at p. 1066.

[54]             Ibid.

[55]             Ibid.

[56]             Ibid.

[57]             461 U.S. at p. 147.

[58]             Eng v. County of Los Angeles (2007) 2007 U.S.Dist. LEXIS 111853.

Eng v. Cooley, supra, at pp. 1066-1067.

[59]             Id., at p. 1070.

[60]             Ibid, quoting Pickering v. Board of Education, supra, at p. 568.

[61]             Ibid, quoting Pickering, supra.

[62]             Id., at p. 1070.

[63]             Id., at pp. 1070-1072.

[64]             Id., at p. 1070.

[65]             Ibid.; citing and quoting Johnson v. Multnomah County (9th Cir. 1995) 48 F.3rd 420, 422.

[66]             Id., at pp. 1070-1071.

[67]             Id, at p. 1072, quoting Johnson v. Multnomah County, supra, at p. 425.

[68]             Id., at pp. 1072-1073.

[69]             Id., at p. 1071, quoting Posey v. Lake Pend Oreille School Dist. No. 84 (9th Cir. 2008) 546 F.3rd 1127, fn. 2.

[70]             Ibid.

[71]             Id., at p. 1073.

[72]             Id., at pp. 1071, 1073.

[73]             Id., at p. 1074.

[74]             Ibid., citing Thomas v. City of Beaverton (9th Cir. 2004) 379 F.3rd 802, 808; and

                CarePartners, LLC v. Lashway (9th Cir. 2008) 545 F.3rd 867, 880.

[75]             Ibid., quoting Garcetti v. Ceballos, supra, at p. 418.

[76]             Id., at p. 1074.

[77]             Ibid.

[78]             Id., at p. 1072; quoting Mt. Healthy City School Dist. Bd. of Educ. v. Doyle (1977) 429 U.S. 274, 287 [97 S.Ct. 568; 50 L.Ed.2nd 471].

[79]             Ibid.

[80]             Id., at p. 1074, quoting Thomas v. City of Beaverton, supra.

[81]             Ibid.

[82]             Ibid.

[83]             Id., at pp. 1075-1076.

[84]             (Jan. 11, 2010) 558 U.S. 1110 [130 S.Ct. 1047; 175 L.Ed.2nd 881].

[85]             (9th Cir. Jan. 12, 2021) 984 F.3rd 900.

[86]             Id., at pp. 902-903.

[87]             Id., at p. 903.

[88]             Ibid.

[89]             Id., at pp. 903-904.

[90]             See Eng v. Cooley, supra, at p. 1070.

[91]             Moser v. City of Las Vegas, supra, at p. 905;

                Quoting City of San Diego v. Roe (2004) 543 U.S. 77, 83-84 [125 S.Ct. 521 [160 L.Ed.2nd 410].

[92]             Ibid.

[93]             Ibid.

[94]             Id., at p. 906.

[95]             Ibid.

[96]             Ibid.; quoting Eng v. Cooley, supra, at p. 1071.

[97]             Id., at pp. 907-908.

[98]             Id., at pp. 908-909; Citing Rankin v. McPherson, supra.

[99]             Id., at pp. 910-911.

[100]           (Feb. 18, 2021) 2021 U.S.App. LEXIS 4750.