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  It took five years, but Prop 63 is now the law. In 2016, the California voters passed Prop 63, which outlawed most “large capacity magazines,” as defined by the proposition as a magazine that holds more than ten rounds of ammunition. The nascent law was challenged in federal district court, resulting in a preliminary injunction on implementation of the law after the federal judge found the law to be an unconstitutional violation of the Second Amendment.  The questions were complex, but at its core, the questions before the district court were: “”Does a law-abiding responsible citizen have a right to defend his home from criminals using whatever common magazine size he or she judges best suits the situation? Does that same citizen have a right to keep and bear a common magazine that is useful for service in a militia?” (Duncan v. Becerra, 265 F.Supp.3d 1106, 1112 (S.D. Cal. 2017) .) This was the beginning of many years of court wrangling.

In 2020, the Ninth Circuit upheld the district court’s ruling. In a nutshell, the Ninth Circuit found that the new law infringed on the right of a citizen to self-defense. Although the Ninth Circuit was not speaking broadly about all gun control measures – and, in fact, found the goal of reducing gun control laudable – the court, noted that half of all magazines owned in America are “large capacity magazines” as defined by Prop 63, and would thus make “unlawful magazines that are commonly used in handguns by law-abiding citizens for self-defense . . . burden[ing] the core right of self-defense guaranteed to the people under the Second Amendment.” (Duncan v. Becerra, 970 F.3d 1133, 1169 (9th Cir. 2020)

But wait there’s more. Last month (November 2021), the Ninth Circuit Court of Appeal reversed itself. Once again, the reasoning of the decision is complex and may seem a bit convoluted, as quite frankly, many case decisions are. But this time around, the court did not ask whether the new law implicated Second Amendment rights, except to say that the law placed a minimal burden on core Second Amendment rights. Instead, the court focused on the rights of the state’s (California) interest in reducing gun violence. Noting that the Prop 63 restriction on large capacity magazines does not outlaw all firearms or restrict a law-abiding citizen’s right to self-defense but does reasonably support California’s effort to reduce the incidence of mass shooting and murders.

Riverside and San Bernardino County prosecutors have started charging individuals accused of selling fentanyl that resulted in death to the user with murder. In Riverside County, the DA is currently prosecuting seven such cases against alleged fentanyl dealers and in San Bernardino County, the DA has filed a at least one murder charge against a fentanyl dealer. In Orange County, the district attorney has announced that his department will begin charging those drug dealers who have previously pled guilty to fentanyl sales and who later are accused with the fentanyl sales that causes a death with murder. (Similar to the Watson advisement, discussed below.)

In all counties, the charge is second degree murder based on the theory of implied malice. Under this theory, the murder need not be intentional. Rather, implied malice means that the conduct of the accused displayed a “conscious disregard for life.” In other words, the accused acted in a way that he or she knew could likely cause death but acted anyway.

There is an analogous law in the DUI statutes. A person who causes the death of another by his or her DUI driving can be charged with second degree murder under the implied malice theory. Under the DUI law, when a person is arrested for DUI, an advisement be given to the offender that puts the offender on notice that driving under the influence can result in the death of another person and if the offender is involved in a DUI fatality in the future, he or she can be charged with second degree murder. This advisement is called a Watson Advisement and is mandated by law.

The so-called felony murder rule that treated an accomplice to a murder as if he or she was the actual murderer was amended in 2017 so that an accomplice could only be convicted as the murderer when malice aforethought is shown. In practical terms, this means that an accomplice to a murder who was not the actual murderer and who did not plan or anticipate the murder, cannot be held liable for the murder. Previous to this amendment, that was not the case.

Example: Sherry and her boyfriend plan an armed robbery. Sherry’s role is to drive the car to the location, wait for her boyfriend to commit the robbery, and after that is accomplished to drive her boyfriend away from the location. In other words, she was the “getaway driver.” There was no evidence that the plan might include murdering the robbery victim. But as it turned out, the robbery victim had a gun and as he reached for it, Sherry’s boyfriend panicked and fatally shot the victim. Under the old felony murder rule, Sherry would be just as culpable for the murder as it was a “natural and probable consequence” of an armed robbery. Under the amended law, Sherry could not be convicted of the murder unless the evidence showed that she had prior knowledge and/or intent (a plan) that the murder could or would occur.

Effective January 1, 2018, a new law (Penal Code section 1170.95) gave those who had been convicted of felony murder or murder under a natural and probable consequences theory the opportunity to file a petition with the superior court for resentencing under certain circumstances. Many defendants convicted of murder under the old felony murder rule filed a petition for resentencing. But the appellate courts interpretated the relief available under Section 1170.95 as applicable only to those convicted of murder. This left out, for example, defendants who were initially charged with murder under the old rule, but who entered a plea bargain for a reduced charge on manslaughter or who were convicted on attempted murder.

The Fifth Amendment right against self-incrimination is among one of our most important and well-known rights.  That clause states: “No person . . . shall be compelled in any criminal case to be a witness against himself.” Sounds simple enough but understanding how the courts have interpreted this right over the 225+ years since it was ratified is not simple. Among one of the most famous interpretations of this right was handed down by the United States Supreme Court in 1966 in the case Miranda v. Arizona.

We have all heard of the “Miranda warning” where an individual is warned that he or she has the right to remain silent and that any statement made can and will be used in a court of law. But did you know that Miranda rights are only applied and operative upon arrest, not upon detention or questioning? Upon arrest, and only upon arrest (with a few exception), the Supreme Court ruled that a suspect must be advised of his or her Fifth Amendment rights. This warning also includes notice that the arrestee has the right to talk to an attorney before answering any questions.  Without being advised of these rights, the arrestee may have grounds to challenge any subsequent charge stemming from the arrest by a motion to suppress.

Even with this warning, many suspects go on to incriminate themselves, even by statements they believe are innocent. If you are ever arrested, don’t make this mistake! Even if you are innocent. Keep your mouth shut when the police question you after an arrest except to ask for permission to contact a criminal defense attorney.

THE END OF BAIL – ARE RISK-ASSESSMENT TOOLS BIASED?

With the coming end to money bail, California courts will be mandated to rely on risk assessment conducted by Pretrial Assessment Services (PAS). Risk assessment, as mandated by the new law, will categorize those arrested for a crime as high, medium, or low risk in terms of the likelihood that the alleged offender will return to appear in court and the risk the alleged offender poses to the public. Each alleged offender will receive a “risk score” and depending upon that score, the defendant may be released on his or her own recognizance or may be held in jail.  Those charged with a misdemeanor (with certain exceptions) will not be subject to the assessment and will be released on their own recognizance.

But this blog post is not about the new law, but about “risk assessment.” How will PAS make the risk assessment? The new law requires PAS to rely on a “validated risk assessment tool” approved by the court from a list of such tools that are maintained by the Judicial Council. Orange County, as will each county in California, chose what tool to use from those approved by the Council. The tools must be scientifically validated for their accuracy and reliability in assessing the alleged offender’s risk. These tools are algorithm-basedand calculate risk based on the alleged offender’s criminal history and other personal factors plus general criminal justice data. The data input, depending on the tool, may include more than 100 factors, which are weighted according mathematical formulas to assess an alleged offender’s risk. This use of artificial intelligence to determine who gets out of jail and who doesn’t is not without controversy and opposition. Indeed, over 100 civil rights-related organizations opposepretrial risk assessment, including the ACLU and NAACP.

Sometimes a person is arrested for a crime they did not commit. In the nightmare scenario, they are charged and maybe even convicted. But often the prosecutor declines to prosecute or, if charged, the charges are dismissed or the person is acquitted.

For example, say you are at a party and someone starts a fight. You are in the fray but only as a spectator. You do not throw a single punch or otherwise harm anyone, but some of the participants are injured. The police arrive and you find yourself arrested for aggravated assault, which is a serious charge. The subsequent police investigation exonerates you: plenty of witnesses tell the investigators that you were not one of the participants but only standing on the sidelines. The district attorney recognizes that there is no reason to pursue charges against you. All you suffered is the arrest and nothing else; you are in the clear, right?

Not exactly. That arrest is now on your otherwise pristine California Department of Justice criminal history record (commonly called a “rap sheet”). In the era of instant information, having an arrest show on your criminal record means that current and future employers may find out about it, your school may learn of it, even your landlord may know. Furthermore, if you have a job that requires a state or federal license or clearance, the arrest may affect your job or future application for such a job.

THE ULTIMATE PUNISHMENT

California is one of 30 states in which the death penalty is legal. In the last election, California voters voted to keep capital punishment legal (Proposition 62) and, beyond that, voted to speed up the process (Proposition 66). Proposition 62 would have replaced the punishment for those convictions under which a person could be sentenced to death to life imprisonment without the possibility of parole. The California voters soundly defeated this proposition with 53% of the voters voting nay. A corollary proposition, Prop 66, approved by 51% of the voters, shortens the time a death row inmate can take to appeal his or her sentence to a maximum of five years. Opponents of Proposition 66 have filed a lawsuit in the Californian Supreme Court challenging the legality of Proposition 66. That lawsuit is pending.

So what is the fate of an estimated 750 death row inmates presently sitting out their time in California prisons? The last time a person was executed in California was in January 2006, when 76 year old Clarence Ray Allen was put to death by lethal injection. A month after Mr. Allen’s execution, the U.S. District Court blocked a scheduled execution after a lawsuit was filed challenging the lethal injection protocol as cruel and unusual punishment. Since this challenge, there has been an almost eleven year stay on lethal injections in California. That stay was challenged in 2010, but the Ninth Circuit Court of Appeal ruled that the stay continued to apply. Even though no one has been executed in this state since 2006, prosecutors continue to ask for the death penalty and new death row inmates are added to the prison population every year.