New California Criminal Laws: Part Deux

To conclude our two-part series on the state’s new criminal laws, here are three more important ones that went into effect on January 1, 2016.

Both prosecutors and defense attorneys must account for the immigration consequences of a plea deal. This is Assembly Bill 1343. It amended the Penal Code to reflect that defense lawyers must advise noncitizens accurately about the immigration consequences of a proposed guilty plea, and they must ethically defend against such consequences to the extent they can. This is not new, but the statute confirms state and federal case law to that effect. What is new, however, is that prosecutors must also consider such immigration consequences as a factor in their plea-bargaining efforts to reach a just outcome. See Pen. Code §§ 1016.2 & 1016.3.

It’s not a felony to transport marijuana, phencyclidine, or mushrooms unless you’re doing it for sale. This is Assembly Bill 730. It amended the Health and Safety Code to bring the treatment of these drugs in line with that of cocaine, heroin, and others. Two years ago, the state amended its drug-trafficking laws to preclude felony charges for just transporting most drugs unless you were actually trafficking, too—that is, transporting for sale; but the bill left out marijuana, phencyclidine, and psilocybin mushrooms. This bill fixes that. See Health & Safety Code §§ 11360, 11379.5, & 11391.

The police (but not your neighbor) may continue to use pen registers and trap-and-trace devices to investigate you. This is Assembly Bill 929. It amended the Penal Code to provide for police to apply for pen registers and trap-and-trace devices. What are these? Well, pen registers capture and record all the numbers of the phones or devices that you call or send messages to (but not the content of your communications), while trap-and-trace devices capture and record all the numbers of the phones or devices that call or send messages to you (but not the content). They’re often used in tandem, and they’ve been authorized by case law for a long time, but no California statute codified their use until now.

To use them, the police must apply for a court order, certify that the information is relevant to an ongoing criminal investigation, and show probable cause to believe the information will lead to evidence of the crime. If granted, the court order is good for sixty days, and it may be renewed for another sixty days. But if someone installs or uses such devices without a court order, it’s a crime. It may be charged as a felony or a misdemeanor, and it’s punishable by a fine of up to $2,500, imprisonment in the county jail for up to three years, or both. See Pen. Code §§ 638.50, 638.51, 638.52, & 638.53.

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