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Progressive new criminal justice laws set to take effect in California

With 2020 right around the corner, Californians should brace for some important new changes in state law. While some of the most publicized new changes relate to workers’ rights, there are also many new and progressive changes in the area of criminal justice reform.  There are at least a dozen new bills that impact the criminal courts; two new laws caught my attention as having the greatest potential impact.

SB 394 – Parent / Guardian Diversion

California Senate Bill 394 was signed by Governor Gavin Newsom on October 9, 2019 and takes effect on January 1, 2020. The bill establishes a diversion framework for parents and legal guardians who are primary caregivers of a child under 18 years of age. As a legal term, “diversion” means an alternative path to resolve a criminal case, where the result is that the case ends without a conviction. Under SB 394, if the defendant successfully enters and completes a diversion program, which lasts between 6 and 24 months and includes access to social services, their case results in a dismissal of the charges.

As written, the new law applies to misdemeanors and nonviolent felonies. The social services available to an eligible defendant include parenting classes, family and individual counseling, mental health screening, education, and treatment, family case management services, drug and alcohol treatment, domestic violence education and prevention, physical and sexual abuse counseling, anger management, vocational and educational services, job training and placement, affordable and safe housing assistance and financial literacy courses.

The authors of this bill wanted the law to recognize the incredibly negative impact that criminal convictions and incarceration have on parents, guardians, and children. As such, Senate Bill 394 embraces an alternative path forward that seeks to end the individual and generational cycle of crisis and legal conflict by charting a sustainable rehabilitative approach. This law will have an immediate impact for accused defendants in every county across the state and, if the services are well-funded and can match their demand, has the potential to have a transformative society-wide impact.

SB 136 – One Year Prison Prior Sentence Enhancement Restructuring

Up until the recent passage of California Senate Bill 136, California Law allowed prosecutors to charge sentencing enhancements on new charges when the defendant had previously served prison for a nonviolent felony. These sentencing enhancements, colloquially called “prison priors”, add additional potential prison time in a new case if the defendant previously served prison, or even county jail time, on another recent felony. Although these prison priors could be removed at the discretion of the judge at the time of sentencing, they are routinely used as leverage by prosecutors, who can stack years onto a potential sentence in order to compel pleas from defendants with messy, but nonviolent criminal histories.

As California begins to experiment with a less punitive and more rehabilitative approach to sentencing, Senate Bill 136 removes these prior prison sentences for nonviolent felonies from consideration as sentencing enhancers for new charges. Going forward the one-year enhancement for prior served prison sentences will apply to sexually violent offenses only (violent felony prison enhancements will remain unchanged).

Although it is difficult to gauge the broad effect this law change might have, at the level of the courts it will remove a bit of leverage from prosecutors in plea negotiations with nonviolent defendants with nonviolent criminal histories. Consistent with modern trends, this will help distinguish violent offenders and those accused of violent crimes from those with nonviolent criminal histories.

What it all means

California’s new diversion program for minor child caregivers ostensibly applies to defendants that are parents or legal guardians and are charged with any misdemeanor or qualifying nonviolent felony. As a practical matter, setting up the diversion programs will be overseen by the Presiding Judge with the participation of the local District Attorney and Public Defender, so there may be some exception made for certain classes of offenses that would otherwise be eligible under the law. If history is any indication, the DA may resist the inclusion of charges like misdemeanor DUIs and domestic violence charges, though it ultimately will not be totally up to them alone how the law is implemented at the local level.

Unlike the new diversion law, the law removing one-year sentence enhancements for prison priors will not require any negotiation or planning to take effect, so its impact will be felt right away.

In 2020 defense attorneys will have additional tools in their belt to divert clients away from the worst criminal consequences of minor crimes and nonviolent felonies. Because these laws will have an immediate effect, it is important for all practitioners of criminal law to become familiar with these benefits right away and discuss them with their eligible clients.