Proposition 47 Passes in California

So reports the LA Times:

Penalties for common drug and theft crimes in California will be reduced from potential felonies to misdemeanors, shortening the time some offenders spend behind bars. 

Crimes covered by the measure include drug possession and the following offenses when less than $950 is involved: shoplifting, check and credit fraud, forgery, theft and possession of stolen goods. 

As with other misdemeanors, the new maximum sentence will be one year in jail, down from a maximum of three years. Those with histories of violence or sex offenses will be ineligible for the lighter sentences.

You can find the full text of Proposition 47 (Prop 47) here, on pages 7-11.

Regarding theft crimes, Prop 47 adds several new Penal Code sections relating to theft, one of which states:

490.2. (a) Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. 

(b) This section shall not be applicable to any theft that may be charged as an infraction pursuant to any other provision of law.

This is bad news for those prosecutors who have made their names prosecuting felonies involving stolen avocados and fruits (PC 487(b)(1)(A)), fish and mollusks (PC 487(b)(1)(B)(2)), horses and pigs (PC 487a(a)), dead horses (PC487a(b)), and gold dust and quicksilver (PC 487d). Before Prop 47, theft of those items valued at an amount less than $950 could have been grand theft, and therefore could have been charged as a felony. But now, the value of those stolen items will need to exceed $950 for a felony to be charged. The same is true of situations where a defendant defrauds public housing services -- while a loss of $400 was previously sufficient to prove a potentially felonious grand theft, that amount has now been increased to $950.

It is important to note that contrary to the broad language used by the LA Times, the reduced sentencing provisions will apply to numerous people who have a history of violent convictions. Under Prop 47, the only people exempt from the reduced sentencing provisions will be sex offenders and those with a prior conviction listed under Penal Code 667(e)(2)(C)(iv). Here is that list of qualifying offenses:

(I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. 

(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. 

(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. 

(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. 

(V) Solicitation to commit murder as defined in Section 653f. 

(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. 

(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. 

(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.

It is also worth noting that Prop 47 adds section 1170.18 to the Penal Code, which makes the reduced sentencing provisions retroactive. Section 1170.18 lays out the procedure for those serving sentences or those who have already served their sentences to petition to have felony convictions reduced to misdemeanors.

For those who are serving sentences for felony convictions that Prop 47 reduces to a misdemeanor, section 1170.18 requires that a court reviewing a petition for a sentencing reduction grant the petition unless the defendant poses "an unreasonable risk of danger to public safety." Section 1170.18(c) provides a very narrow definition of this phrase:

As used throughout this Code, “unreasonable risk of danger to public safety” means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.

This means that a defendant poses an unreasonable risk of danger to public safety only if there is an unreasonable risk that the defendant will commit one of the specific crimes in the list provided above. While there may be evidence that a defendant is indeed a dangerous person, it would likely be much more difficult to show that a defendant is likely to commit one of those particular, heinous crimes.

I noticed that section 1170.18(c) applies to the use of "unreasonable risk of danger to public safety" "throughout this Code," which presumably means that if this phrase appears elsewhere in the penal code, it is now defined by section 1170.18(c)'s very narrow definition.

I looked into whether this broad phrasing would have any impact on other laws. I found that while Prop 47 seemed to affect another statute, the deadlines included in that other statute effectively cancel out any impact that Prop 47's broad language would have. I go into the technical details of this investigation after the break, but in summary: Prop 47's broadly phrased section 1170.18(c) does not appear to have a significant effect on other sections of the Penal Code.



I could only find one other instance where the phrase "unreasonable risk of danger to public safety" appeared in the Penal Code, which is section 1170.126. This section governs resentencing in cases where a defendant is serving an indeterminate life sentence as a result of a conviction for a third strike that occurred before the effective date of 1170.126, which was November 7, 2012. Here are the parts of 1170.126 that are relevant to this discussion of Prop 47 -- and the subsection worth paying particular attention to is (f):

(b) Any person serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, whether by trial or plea, of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall of sentence, within two years after the effective date of the act that added this section or at a later date upon a showing of good cause, before the trial court that entered the judgment of conviction in his or her case, to request resentencing in accordance with the provisions of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes have been amended by the act that added this section. 

(e) An inmate is eligible for resentencing if: 

(1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7. 

(2) The inmate's current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12. 

(3) The inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12. 

(f) Upon receiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria in subdivision (e). If the petitioner satisfies the criteria in subdivision (e), the petitioner shall be resentenced pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12 unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. 

(g) In exercising its discretion in subdivision (f), the court may consider: 

(1) The petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; 

(2) The petitioner's disciplinary record and record of rehabilitation while incarcerated; and 

(3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

Prop 47 would require courts considering these resentencing petitions to apply the very narrow definition of "unreasonable risk of danger to public safety" provided in Penal Code section 1170.18(c). This means that a court considering a 1170.126 petition will be required to grant the petition for resentencing unless the court finds that there is an unreasonable risk that the petitioner will commit "a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667."

Prop 47's impact on section 1170.126 resentencing is limited, however, since section 1170.126 contains a two-year deadline for defendants to petition for resentencing. Any defendant serving an indefinite term imposed before November 7, 2012 would have only one day to take advantage of this decreased discretion, since the act that led to section 1170.126 was approved on November 6, 2012. After November 6, 2014, any defendants that have not yet petitioned for resentencing must show good cause for the court to accept their petition. Because of this, the discretion courts would lose with Prop 47's passage is maintained in the form of the good cause requirement.

While the narrow definition of "unreasonable risk of danger to public safety" provided by Prop 47's new Penal Code section 1170.18(c) is phrased to apply throughout the Penal Code, it appears that this phrase is only used in one other section -- and the deadlines attached to that section mitigate the loss of discretion that 1170.18(c) might otherwise cause.

These are just some preliminary clarifications and thoughts that I have on Prop 47's passage, and I will be sure to write more on the topic as I learn more about it.

UPDATE

One thing I forgot to mention: all of this becomes effective starting November 5, 2014.

UPDATE 2: 11/9/2014

For more on Prop 47's retroactive application, see this post.