Looking at 2004’s new criminal laws | SierraSun.com
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Looking at 2004’s new criminal laws

Jim Porter, Law Review

I was comfortable representing defendants charged with smoking pot. This was in the ’70s, remember. But I found I didn’t relate to criminals like burglars and spousal abusers. As I’d meet with someone charged with “breaking and entering,” I’d be thinking that if I get this guy off, he’d “burg” my house next. Criminal-defense attorneys are a special breed.

But ignorance of the law won’t keep me from highlighting new criminal laws that take effect this month.

Mentally retarded

New penal code section 1373 prohibits a court from sentencing to death a person found to be mentally retarded. The procedure requires the defendant to establish mental retardation. Seems like a Catch-22. Two years ago the U.S. Supreme Court barred executing people who are mentally retarded, so the new California legislation was an easy decision for our lawmakers.

Medical marijuana

In 1996, California voters approved the Compassionate Use Act, which allowed doctors to prescribe marijuana and patients to consume pot to alleviate pain for virtually any illness. It took the Legislature until 2003 to adopt implementing legislation.

With the California Medical Marijuana Program, a licensing and identification-card law, the state will regulate plant cultivation and marijuana distribution and will issue qualified patients voluntary identification cards, allowing them to smoke pot free from state scrutiny. A cooperative doctor is the key.

However, the federal government does not smile on marijuana use and federal agents have made it clear they intend to prosecute pot smokers. Last month, however, the Feds were dealt a setback by the Ninth Circuit, the so-called “Liberal Circuit,” when the court held that the United States does not have jurisdiction to regulate marijuana that is used within a state for personal purposes. Attorney General Ashcroft, never accused of being mellow, will probably take that to the Big Court.

Battered women’s syndrome

In 2002, the law was changed to allow women who murdered abusive spouses or partners to be released from prison if they could establish that evidence could have been presented in their cases showing that the killing was done because of the abuse. The 2002 law sunsetted in 2005.

Senate Bill 784 extends the time limit to prove Battered Women’s Syndrome to 2010. Governor Gray Davis, you remember him, signed the extension law, which had previously been vetoed by Governor Pete Wilson.

Jury duty

I have never understood this mentality, but some people refuse to show up for jury duty. Others decline to register to vote to avoid jury duty. A heavy price to pay for what at worst can be an annoyance and on average a rewarding experience. Currently, the procedure for dealing with those who fail to show up for jury duty involves a cumbersome court proceeding.

Under a new law, the judge may impose a first, second- and third-time fine – forthwith, as they say in court. The court may impose fines even in the absence of the person summoned as a juror and may refer the instant debt to a collection agency.

Should you be one of those rich folk thinking it is easier to pay the fine, payment of the fine does not relieve your jury duty obligation.

DNA database

One of the bills that did not make it to the governor’s office, would have expanded the state’s DNA database, which is used to help solve crimes, by expanding the crimes for which a DNA sample must be provided by prisoners. An initiative is now circulating the State for signatures that would require all people convicted, or even charged, with felonies to provide DNA samples.

Jim Porter is an attorney with Porter–Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at porter@portersimon.com or at the firm’s Web site http://www.portersimon.com.


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