While not all of Prop 47 is retroactive, it will have a significant impact on crimes committed before November 5, 2014. Moreover, the wording of Prop 47 suggests that its retroactive provisions may not be limited to its later resentencing sections. In this post, I discuss the extent of Prop 47's retroactivity. I begin with the portions of Prop 47 that are obviously retroactive, and then move on to sections that have a retroactive effect that may not be apparent at first glance.
Resentencing for Those Serving Time for Pre-Prop 47 Felonies
Prop 47 retroactively applies to those who are serving sentences for felonies that would have been misdemeanors before the passage of Prop 47. Prop 47 creates Penal Code section 1170.18, which establishes a number of resentencing procedures.
Penal Code section 1170.18(a) – (e), (i) covers the resentencing process for people who are currently serving time for a felony conviction. If that felony would have been a misdemeanor under Prop 47's revisions to the Penal Code, people serving sentences may petition for their felony sentences to be reduced to misdemeanor sentences.
The court that receives a resentencing petition is required to reduce the sentence to a misdemeanor unless the court finds that the petitioner poses an “unreasonable risk of danger to public safety.” It is important to note, however, that section 1170.18(c) creates a very narrow definition for this phrase – since it defines petitioners as posing an unreasonable risk of danger to public safety only if there is “an unreasonable risk that the petitioner will commit a new violent felony within the meaning of [Penal Code § 667(e)(2)(C)(iv)].”
This is how Proposition 47 applies retroactively for those currently serving time for felony convictions. While section 1170.18 gives very little discretion to the courts, the defendant must file a resentencing petition in order to obtain a reduced sentence. Moreover, subsection 1170.18(i) establishes that the 1170.18 does not apply to people who are sex offenders registered under Penal Code section 290(c), nor does it apply to people who have been convicted of a prior offense specified under Penal Code section 667(e)(2)(C)(iv).
Resentencing for Those Who Have Completed Their Sentences for Pre-Prop 47 Felonies
Prop 47 also applies retroactively for people who have already completed sentences for felonies that would have been misdemeanors under Prop 47. Penal Code section 1170.18(f) – (o) lays out the process for reclassifying these prior convictions. Defendants who have been convicted of felonies that would have been misdemeanors under Prop 47, and who have completed their sentences, may apply to have their sentences recalled and resentenced. Subsection (i) notes that this reclassification procedure does not apply to defendants who are sex offenders, or who have been convicted of a prior offense specified under Penal Code section 667(e)(2)(C)(iv).
Penal Code section 1170.18(g) requires courts to designate prior felonies as misdemeanors if those felonies would have been misdemeanors under Prop 47. Unlike the resentencing procedures for those currently serving sentences, the court considering petitions for recalling sentences that have already been served has no discretion over whether to convert the prior felony to a misdemeanor – at least not for the next three years. Section 1170.18(j) states that these petitions must be filed within three years of Prop 47’s passage. After three years, those petitioning for resentencing need to show “good cause” for the court to accept their petitions.
So far, I have discussed portions of Prop 47 that are obviously retroactive. But there are several other portions of the law that have an indirect, retroactive effect.
Charging Shoplifting Crimes Committed Before November 5, 2014
Prop 47 added section 459.5 to the Penal Code, which creates the new misdemeanor of “shoplifting.” Under section 459.5:
[S]hoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with 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 may be punished pursuant to subdivision (h) of Section 1170.This means that most people who would have previously been charged commercial burglary will now be charged with shoplifting. Unlike commercial burglary, shoplifting cannot be charged as a felony unless the person charged is a registered sex offender under Penal Code section 290, or if the person charged has a prior conviction under Penal Code section 667(e)(2)(C)(iv).
What is particularly interesting about this section is 459(b), which states:
Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.
The subsection does not state that any act of shoplifting shall be “punished” as shoplifting, but rather that the act shall be “charged” as shoplifting. The reason for this language is fairly clear: the new statute must require the specified conduct to be charged as shoplifting rather than as commercial burglary. If that shoplifting conduct could still be charged as commercial burglary, then prosecutors could simply avoid charging defendants with misdemeanor shoplifting and instead charge defendants with commercial burglary, which can still be charged as a felony.
But by using the term “charged,” Penal Code section 459 effectively applies to any uncharged act of shoplifting that was committed before November 5, 2014. Even though the shoplifting statute did not exist at the time these crimes were not committed, prosecutors are now required to charge these crimes as shoplifting under Section 459(b). So if a prosecutor is filing charges today – on November 9, 2014 – against a defendant who entered a commercial business with the intent to commit larceny and stole less than $950 worth of goods on November 3, 2014, the prosecutor is required to charge that defendant with shoplifting, even though the shoplifting law did not exist at the time of the offense.
This raises the question of whether prosecutors can even file charges against those who committed shoplifting before November 5, 2014, since Penal Code section 459 did not exist at the time. Defendants who committed a shoplifting offense before November 5, 2014, may challenge the case against them on the ground that the crime with which they are currently charged did not exist at the time they committed the shoplifting offense. Prosecutors may reply that the section 459 charge can still stand since the shoplifting conduct was not legal at the time the offense was committed, and section 459 does not increase the penalty for shoplifting. This may overcome some concerns about section 459 prosecutions being an ex post facto law. But it is still a strange situation.
Charging Non-Shoplifting, Pre-Prop 47 Felonies Committed Before November 5, 2014
Prosecutors can be more flexible when charging non-shoplifting crimes that were committed before November 5, 2014. Crimes that were felonies before Prop 47 could still theoretically be charged as felonies if they were committed before November 5, 2014, since the crimes were felonies at the time they were committed.
Prosecutors will probably avoid charging these crimes as felonies, however. A crime that Prop 47 reduces from a felony to a misdemeanor could be charged as a felony if it were committed before November 5, 2014. But if a defendant ends up getting convicted of a felony for this crime, that defendant can immediately petition for his or her sentence to be reduced to a misdemeanor under Penal Code section 1170.18.
While prosecutors may theoretically charge defendants with felonies for crimes committed before November 5, 2014, if those crimes would be misdemeanors under the terms of Prop 47, there would be little use in charging the felony in light of the almost inevitable reduction of the felony to a misdemeanor after the conviction.
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