LAW OFFICES OF THE PUBLIC DEFENDER
MOLLY O’NEAL, #150944
______, #______
County of Santa Clara
120 West Mission Street
San Jose, CA 95110
Telephone: 299-7798
Attorneys for Defendant
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
PEOPLE OF THE STATE OF CALIFORNIA,Plaintiff,
vs.
______,
Defendant / NO: ______
BENCH BRIEF ON WHETHER A PERSON ON FELONY PROBATION IS SUBJECT TO THE DISCRETIONARY RESENTENCING PROVISIONS OF PROPOSITION 47 (P.C. § 1170.18(a).)
INTRODUCTION
The linchpin of Proposition 47 is the reclassification of low-level theft and drug possession offenses to mandatory misdemeanor status. “[I]t is the intent of the people of the State of California to . . .[r]equire misdemeanors instead of felonies for non-serious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.” (Prop. 47, § 3, gen. election, Nov. 4, 2014.) For a person currently serving a sentence on a Proposition 47-eligible offense, a misdemeanor is not required. Such person must instead petition for a recall of sentence before the trial court that entered judgment on the conviction in order to seek a reclassification of that felony conviction to a misdemeanor. This can involve a dangerousness hearing at which the court determines whether the petitioner is likely to commit a narrow class of extremely serious or violent crimes, as well as the decision whether to place the petitioner under the supervision of state parole for up to one year.
A person who has been granted probation has, by statute, been deemed safe for release into the community. Must this person, in order to seek relief under the initiative, go through the petition process? Stated otherwise, is a person who is on felony probation “currently serving a sentence” within the meaning of Proposition 47’s resentencing provision, such that he or she may only seek relief through this petition process?
As explained below, a probationer is not “currently serving a sentence” within the meaning of Proposition 47 and, thus, need not go through the petition process. Statutes and case law have long distinguished an order granting probation from a sentence. By the very act of granting probation, the trial court has already made the determination that rehabilitation in the community is appropriate, with public safety being given paramount consideration. It thus makes little sense to introduce a dangerousness hearing wherein the same trial judge will determine whether the probationer, already deemed safe for release, is nonetheless likely to commit some of the most heinous and violent crimes in the Penal Code. Lastly, the overall intent and purpose of Proposition 47 is defeated, and state realignment efforts seriously impeded, if California’s sizeable population on probation for minor theft and drug offenses was subjected to potential supervision by state parole, as opposed to requiring local community-based supervision.
DISCUSSION
Proposition 47, adopted at the November 4, 2014 election, reclassifies various low-level theft and drug possession offenses from felonies to misdemeanors if the person is not statutorily disqualified based upon a narrow category of extremely serious and/or violent prior convictions and/or mandatory sex offender registration status.[1] Proposition 47 also applies retrospectively to persons who are currently serving a sentence and those with completed sentences. Those who are currently serving a sentence on an eligible Proposition 47 offense may petition “for a recall of sentence before the trial court that entered the judgment of conviction[.]” (P.C. § 1170.18(a)-(e), (o).) If the court receiving the petition determines that the petitioner is statutorily eligible, the court shall recall the felony sentence and allow the petitioner to be “resentenced to a misdemeanor,” unless the court determines that the petitioner would pose an unreasonable risk of committing a narrow class of extremely serious and/or violent crimes. This list of extremely serious and/or violent crimes include violations of the following offenses: PC 187 [murder and attempted murder]; PC § 653f [solicitation to commit murder]; WI § 6600(b) [sexually violent offenses]; PC § 288a(c)(1) [oral copulation on a child under age 14]; PC § 286(c)(1) [sodomy on a child under age 14]; PC § 289(j) [sexual penetration on a child under age 14]; PC § 288 [lewd and lascivious act on a child under age 14]; PC § 245(d)(3) [assault on a peace officer or firefighter with a machine gun]; PC § 11418(a)(1) [possession of weapons of mass destruction]; and any serious or violent felony punishable by life imprisonment or death. (PC § 1170.18(c).) Those who have completed their sentence do not have to go through the discretionary petition process. They may simply file an application before the trial court that entered the judgment of conviction to have the felony conviction designated as a misdemeanor. (PC § 1170.18(f).)
I. A Person On Probation Is Not “Currently Serving a Sentence” Within The Meaning of Proposition 47
a. Probation Is Distinct From A Sentence Entered Upon a Judgment of Conviction
Proposition 47 specifies that a person “currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this Act had this Act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction[.]” (P.C. § 1170.18(a).)[2] The Act thus refers not merely to one “currently serving a sentence,” but to one who is “currently serving a sentence for a conviction” where a trial court has actually entered a “judgment of conviction.” A person serving a sentence following entry of judgment of conviction is in a post-conviction posture. (P.C. § 1207; §1191; §859a.) Unlike probation, (P.C. § 1203(a)), there is no suspension of either the imposition or the execution of sentence. As such there can be no “judgment of conviction entered” outside the very limited purpose of filing an appeal from the order granting probation. (P.C. § 1237(a) [order granting probation constitutes final judgment solely for purpose of appeal].)
Statutes and case law have long distinguished the grant of probation from a sentence. Penal Code section 1170, subdivision (a), paragraph (3), states that in any case where the court selects the felony triad and imposes sentence, “the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence . . ..” (Italics added.) Penal Code section 1203, subdivision (a), states, “As used in this code, ‘probation’ means the suspension of the imposition of sentence or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.” (Italics added.) Likewise, Penal Code section 1203.1 states that a court, “in the order granting probation, may suspend the imposing or the execution of the sentence” for a period of time not exceeding the maximum possible of the sentence. Finally, Penal Code section 1237, providing for appeal from a final judgment of conviction, states: “A sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section.” (P.C. § 1237(a), italics added.) These sections plainly distinguish an order granting probation from a sentence and make clear, that outside filing an appeal, an order granting probation is not a final judgment of conviction.
The California Supreme Court, consistent with the statutes above, distinguishes an order granting probation from serving a term on an imposed sentence. “When the trial court suspends imposition of sentence, no judgment is then pending against the probationer, who is subject only to the terms and conditions of the probation. The probation order is considered to be a final judgment only for the "’limited purpose of taking an appeal therefrom.’" (People v. Howard (1997) 16 Cal.4th 1081, 1087, internal and end citations omitted; People v. Scott (2014) 58 Cal.4th 1415, 1423-1424.) Outside this “limited purpose of taking an appeal,” an order granting probation “does not have the effect of a judgment for other purposes. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796, italics added.)
The case of In re May (1976) 62 Cal.App.3d 165 is instructive. May was placed on probation for the former version of Health and Safety Code section 11357(b) [possession of less than an ounce of marijuana], which at the time of the order granting probation, was punishable as a felony by imprisonment for not less than one year or for not more than ten years. Following the order granting probation, the Legislature reclassified section 11357(b) to a misdemeanor punishable by a fine of not more than $100. Upon a violation of probation following enactment of these changes, the trial court continued to treat May’s offense as a felony. Finding that the trial court “exceeded its jurisdiction in imposing upon petitioner a greater punishment for a greater crime than the law now recognizes,” the court explained that since May was only granted probation, and had not entered into a final judgment, the new law lessening penalty applied to him retroactively:
In the present case, proceedings were suspended and probation was granted for a period of 2 years on various terms and conditions, one of which required petitioner to spend the first 60 days of the probationary period in county jail with credit for 46 days already spent in custody. Although an order granting probation is "deemed to be a final judgment" for the limited purpose of taking an appeal therefrom (Pen. Code, § 1237, subd. 1), it does not have the effect of a judgment for other purposes. (People v. Superior Court (Giron), 11 Cal.3d 793, 796 [114 Cal. Rptr. 596, 523 P.2d 636].) Since the proceedings were suspended, no final judgment was entered for the purposes of this case. (See 2 Witkin, Cal. Crimes, §§ 1067, 1068, pp. 1007-1008.) Thus, the rationale of Estrada applies to this case because the amendatory statute became effective after the commission of the act but before the judgment of conviction was final.
(Id., at pp. 168-169.)
The reasoning of May applies here. An order granting probation is an act of clemency. The sentencing is deferred to permit a trial period of rehabilitation and reintegration in the community.[3] “A grant of probation is intended to afford the defendant an opportunity to demonstrate over the prescribed probationary term that his or her conduct has reformed to the degree that punishment for the offense may be mitigated or waived.” (People v. Feyrer (2010) 48 Cal.4th 426, 439.) Decades earlier, another court sounded the same theme, adding that a successful stint on probation would result in the court’s “surrender[ing] of the right to impose judgment and sentence.”
The purpose and hope are, of course, that through this act of clemency, the probationer may become reinstated as a law-abiding member of society. Removal of the blemish of a criminal record is the reward held out through the provisions of Penal Code, section 1203.4, as an additional inducement. The obvious purpose is to secure law compliance through an attempt at helpful cooperation rather than by coercion or punishment. The law does not require positive proof of total and permanent reformation or rehabilitation as a condition to surrender of the right to impose judgment and sentence, for there could be no such proof.
(People v. Johnson (1955) 134 Cal.App.2d 140, 143-144, italics added; see also Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 136 ["Thus, when [the court] suspends pronouncement of sentence” it does so to avoid “stigmatizing him [or her] even temporarily as one against whom a judgment of conviction of felony and sentence to prison had been entered,” italics added.)
A person on probation has had his or her sentence deferred, not imposed. As such, a probationer is not “currently serving a sentence for a conviction” under section 1170.18 of the Act. This is particularly true given that section 1170.18, subdivision (a), makes specific reference to “a sentence for a conviction” where “judgment of conviction” has been entered. Section 1170.18, subdivision (f), the provision dealing with application for relief for those with completed sentences, uses the same “judgment of conviction” phrase. Given that the Act uses this phrase interchangeably for those currently serving a sentence, as well as those with completed sentences, it is reasonable to assume they have the same meaning. “The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.” (Dyna-Med, Inc. v. Fair Employment and Housing Commission (1987) 43 Cal.3d 1379, 1386-1387.) In other words, when Proposition 47 uses the phrase “judgment of conviction” or “sentence for a conviction . . . [based upon the] entr[y] [of] the judgment of conviction,” it means a conviction following rendition and entry of judgment. (People v. Johnson, supra, 134 Cal.App.2d at pp. 143-144; Meyer v. Superior Court, supra, 247 Cal.App.2d at p. 136; see also P.C. §§ 1207; 1191; 859a.)[4]