2022
Criminal Law Developments
New Laws from the 2021 Legislative Cycle

Gang & Sentencing Enhancements, and the Continued Impact of the Pandemic

In 2021 the California Legislature focused on limiting the impact of sentencing and gang enhancements, and continued to recognize the impacts of the COVID-19 pandemic. AB 700 allows in-custody criminal defendants to appear via counsel, and residential care facilities must provide at least one internet access device for resident use lest violations be punishable as misdemeanors.

New Guidance to Courts for Dismissing Sentencing Enhancements

SB 81, effective January 1, 2022, amends Penal Code section 1385 by adding subdivision (c), which requires the trial court to dismiss a sentencing enhancement if it is in the furtherance of justice to do so, unless dismissal of the enhancement is prohibited by an initiative statute. In addition, the court must consider and afford great weight to defense evidence proving that one or more of nine specified mitigating circumstances are present.

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Proceeding Without Presence of In-Custody Defendant

AB 700, effective January 1, 2022, allows a defendant who is in custody to appear by counsel in criminal proceedings, without a written waiver, if the court makes specified findings on the record by clear and convincing evidence. This bill permits defendants to have a preliminary examination or trial conducted in their absence without their having to be forcibly brought to court over their objection, with their proven voluntary consent.

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For further discussion of the absence of defendants at trial, see chapter 34 of CEB’s California Criminal Law Procedure and Practice.

Defining and Limiting the Scope of Gang Enhancements

The Step Forward Act of 2021 (AB 333) amends Penal Code section 186.22 to more clearly define and limit the scope of gang enhancements, and adds section 1109 to permit the bifurcation of the trial of gang enhancements from the substantive crime. In enacting AB 333, the Legislature recognized that “people are… frequently automatically lumped into a gang social network simply because of their family members or their neighborhood.” Moreover, the Legislature found that gang enhancements have been ineffective in meaningfully reducing crime and have been inconsistently applied against people of color.

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Residential Care Facilities: Failure to Provide Internet Devices Punishable as Misdemeanor

AB 665 adds three new sections to the California Health & Safety Code: sections 1537.1, 1568.074, and 1569.319. The new sections require residential care facilities with internet service to provide at least one internet access device for resident use. AB 665 becomes part of the statutory regulations for care facilities (Health & Saf. Code, §§ 1530-1539), and violations are punishable as misdemeanors (Health & Saf. C AB 665 adds three new sections to the California Health and Safety Code: sections 1537.1, 1568.074, and 1569.319. The new sections require residential care facilities with internet service to provide at least one internet access device for resident use. AB 665 becomes part of the statutory regulations for care facilities (Health & Saf. Code, §§ 1530-1539), and violations are punishable as misdemeanors (Health & Saf. Code, § 1540).

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