2018 saw major change on California’s statute books, many within the criminal law arena. Below are some of the changes in law that impact those who may be facing criminal charges and those who have already been convicted.
JOB APPLICANTS WITH CRIMINAL CONVICTIONS
You may have heard the term “Ban the Box.” This term refers to new legislation in California that now prohibits an employer with five or more employees from requiring a job applicant to disclose past criminal convictions during the application process. Practically speaking, the new law prohibits most employers from including “the box” on an employment application that asks if the applicant has ever been convicted of a crime. The law now also prohibits the employer from asking the applicant about his or her criminal history during the interviewing process. It is only after an employer makes a conditional offer of employment that the employer can ask the potential employee about previous criminal convictions. If the employer then rescinds the conditional offer, the employer must inform the prospective employee in writing with an explanation of why the offer is being rescinded. The law allows the applicant to dispute the evidence provided by the employer in the notice and the employer must consider the applicants submission.
This law also prohibits employers from considering most arrests that did not result in charges or a conviction, convictions that have been sealed, dismissed, or expunged, or those cases that were successfully completed through a diversion program.
Persons with concealed carry permits are no longer permitted to bring a firearm in a school zone even with written permission from the proper school authorities as was previously allowed. A person who violates this law may be subject to a sentence of imprisonment in state prison for two, three, or five years. (Penal Code §626.9)
Under amended Penal Code section 29805, a person convicted of a hate crime will be banned from possessing a firearm for ten years.
Ammunition sales are now restricted to purchase from licensed vendors and beginning next year, a background check will be required to purchase ammunition.
By now, everyone knows that retail marijuana shops became legal on January 1, though it is up to each California city whether to permit the shops in their locality. Persons must be at least 21 years of age to purchase marijuana products is limited to possessing one ounce or eight grams of concentrated cannabis. And just like alcohol, a person may not drive with marijuana unless it is in a container and that container is closed.
Under previous Health and Safety Code section 11370.2, a person who was convicted of violation of, or a conspiracy to violate, certain controlled substances laws faces a full and consecutive three-year term for each conviction. Called a sentencing enhancement, this additional sentence was mandatory and added to the sentence for the violation of the underlying statue. Beginning this year, the enhancement has been eliminated in most cases.
Another mandatory sentencing enhancement that was modified this year was the enhancement for using a firearm during the commission of a crime. Under Penal Code section 12022.5 and 12022.53, judges had no choice but to add the consecutive enhancement to a defendant’s sentence if it was found true that the defendant used certain firearms during the commission of an extensive list of crimes. Under the new law, the enhancement is still on the books but it is no longer mandatory and a judge, in the interests of justice, strike or dismiss the enhancement.
SEX OFFENDER REGISTRATION
The sex offender registration requirements under Penal Code section 2910 have substantially changed. Before every person convicted of certain sex offenses was required to register for life. Now, there is a three-tiered registration requirement that imposes a ten-year registration requirement for low level sex offenses, a 20-year registration requirement for mid-level offenses, and a life-time requirement for the most egregious of the offenses.
A separate law now requires all persons convicted of rape under Penal Code section 261 to register as a sex offender. Previously, certain rape convictions did not mandate registration.
Persons who were convicted of felonies and who served a sentence in prison are not permitted to petition to withdraw and enter a plea of not guilty with the court then setting aside the conviction (commonly called an “expungement”). The law prohibited an expungement for defendants who were sentenced to state prison. However, in 2011, California passed Realignment Legislation that changed the sentencing for non-violent, non-serious, non-sex offenses. Realignment provided that conviction on certain of these offenses be sentenced to county jail, rather than state prison. The new law Penal Code section 1203.42 now allows those who would have been sentenced to county jail under realignment to petition for an expungement of their conviction.
Orange County criminal defense attorney William Weinberg will be happy to discuss how these new laws may affect you. He is available for a free consultation regarding your criminal matter. You may contact him at his Irvine office at 949-474-8008 or by emailing him at firstname.lastname@example.org.