Summary of Proposition 47 (2014)
The Safe Neighborhoods and Schools Act
Proposition 47 reduces a number of property and drug crimes from felonies and wobblers to straight misdemeanors, unless the defendant has one of a handful of very specific serious and violent priors. In most cases there are no enhancements available, regardless of how many prior convictions the defendant has for the same offense. Further, it allows anyone currently serving or having completed a felony sentence for one of these offenses to petition for resentencing or reclassification of their conviction as a misdemeanor. Any cost savings that would result from the measure would be split between the Board of State and Community Corrections, the Department of Education, and the Victims Compensation and Government Claims Board.
Crimes that would be impacted by Prop 47
Commercial burglary – Under Prop 47, entering a commercial establishment during business hours with intent to commit larceny of property not exceeding $950 would be “shoplifting”, which would be a straight misdemeanor. Prosecutors would be prohibited from charging those facts as burglary. There are no enhancements for repeat offenses.
Forgery – Currently a wobbler, forgery would be a straight misdemeanor under Prop 47 if the person is forging a check, money order, cashier's check, etc., not exceeding $950. There are no enhancements for repeat offenses.
Bad checks – Currently, anything under $450 is a misdemeanor, unless the person has a prior conviction for a similar offense. Under Prop 47, the limit would be $950 and it would be a misdemeanor unless the person has THREE priors for similar offenses.
Grand theft – Under current law, the distinction between petty theft and grand theft is based on the value and the nature of the property. Theft of certain items is always grand theft (e.g., guns and cars), and there is a lower grand theft value threshold for theft of certain other property (e.g., crops and chickens). Under Prop 47, theft of property where the value does not exceed $950 would be considered petty theft and would be a misdemeanor, regardless of the type of property stolen (e.g., guns) or the number of prior theft convictions.
Receiving stolen property – Currently a wobbler, but prosecutors have discretion to specify in the accusatory pleading that it is a misdemeanor if the value is less than $950. Prop 47 would make anything under $950 a misdemeanor. There are no enhancements for repeat offenses.
Petty theft enhancement – Currently, petty theft can be charged as a wobbler if a person has three or more priors for theft. Under Prop 47, that would only apply to certain serious or violent offenders with one theft-related prior.
Drug possession – Generally, simple possession of controlled substances is currently either a wobbler or a felony. Under Prop 47, possession of a wide variety of controlled substances (e.g., cocaine, heroin, GHB, etc.) would only be a misdemeanor. The initiative makes no changes to marijuana possession penalties, which are already misdemeanors or infractions. There are no enhancements for repeat offenses.
It is unclear how much “savings” is achieved by this part of the measure, since Prop 36 (2000) already requires multiple treatment opportunities before someone could be incarcerated for felony drug possession. The likely impact of this provision will be to create a disincentive for that cohort seeking treatment at all.
How does this impact people previously convicted of a felony for one of these crimes?
Prop 47 would allow anyone currently serving a felony sentence for one of the crimes that will now be a misdemeanor to petition for resentencing -- but gives the court discretion to deny the petition if resentencing would pose an unreasonable risk that the petitioner will commit a new specified violent felony.
Anyone who has completed a felony sentence for one of the new misdemeanors could also apply to have their felony conviction reclassified as a misdemeanor. The language explicitly states that prosecutors and victims cannot request a hearing on such an application.
Is anyone excluded from the provisions of Prop 47?
Sort of. Anyone who has a prior conviction for one of the “super strike” offenses in PC 667(e)(2)(C)(iv)[1] or an offense that requires registration under PC 290 would be subject to an 1170(h) wobbler for any of the crimes covered by the initiative rather than just a misdemeanor, and would not be eligible to petition for resentencing or reclassification of their conviction.
Additional Issues and Unintended Consequences
Prop 47 makes stealing a gun a misdemeanor in most cases
Under current law, PC 487(d)(2), stealing a gun is an automatic felony. Prop 47 would redefine grand theft in such a way that theft of a firearm could only be considered a felony if the value of the gun is greater than $950. Most handguns (which are the most stolen kind of firearm) retail for well below $950. Since it would no longer be grand theft, it would also no longer qualify as a serious offense under PC 1192.7(c)(26).
A similar issue that will be of particular interest to those in counties with a large agricultural community deals with theft of crops, livestock, chickens, etc. Currently, under PC 487(b)(1), theft of crops, chickens, nuts, etc with a value of more than $250 is grand theft. Prop 47 would make this petty theft unless the value exceeded $950. Likewise, under PC 487a, theft of horses, cows, pigs, sheep, etc is grand theft, regardless of value. Prop 47 would make such conduct petty theft unless the value exceeded $950.
Prop 47 actually sends new people to state prison
The initiative, presumably inadvertently, creates a scenario wherein a certain cohort of criminals who would currently face a straight misdemeanor for petty theft, could instead be sent to state prison. Under current law, petty theft without a theft prior is a straight misdemeanor. Prop 47 creates PC 490.2 which says that theft of property valued at less than $950 is misdemeanor petty theft, unless that person has a "super strike" prior, in which case it is an 1170(h) wobbler. However, under 1170(h)(3), a person who has a "super strike" must serve their felony sentence in state prison.
So consider, for example, a person whose only prior is for murder who goes into Target and steals a $400 Playstation. Under current law, because the thief does not have a theft-related prior, he could only be charged with misdemeanor petty theft. Under Prop 47, however, because of his "super strike" prior, that petty theft can be charged as a felony for which the sentence must be served in state prison.
Similarly, under current law, possession of certain controlled substances (e.g., anabolic steroids, ketamine, khat) is a misdemeanor, regardless of any prior convictions. Prop 47 amends Health and Safety Code Section 11377 to make possession of those controlled substances an 1170(h) wobbler if the person has a “super strike” prior. Again, since 1170(h)(3) precludes anyone with a “super strike” from serving their sentence in county jail, certain offenders would now go to state prison for conduct that was previously a straight misdemeanor.
Prop 47 doesn't really allow "low-level" felons to apply for resentencing
The initiative is drafted in such a way that people who are serving a felony sentence for one of the covered offenses can petition for resentencing, but people who are on felony probation (which suggests they are a lesser threat than their incarcerated counterparts) would not be afforded the same opportunity. The specific language that Prop 47 adds in new PC 1170.18(a) covers 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". A probation grant is not a sentence. In fact, it is, by definition, the suspension of a sentence. Thus, anyone on probation for a felony that is being reduced by Prop 47 would not be eligible for resentencing -- yet another example of how poorly drafted this initiative is.
Prop 47 severely limits the ability of judges to reject petitions for resentencing
New PC 1170.18(b) lays out the process the court must follow in deciding whether to grant a petition for resentencing. The court must grant the petition if the person is eligible, "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." New PC 1170.18(b)(1)-(3) provides some criteria that the court may consider in exercising its discretion -- things like criminal history and disciplinary record while incarcerated. However, in the very next subdivision, PC 1170.18(c), it defines "unreasonable risk of danger to public safety" to mean "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" -- the so-called "super strikes".
By defining "unreasonable risk of danger to public safety" in such a narrow way, it renders the criteria in PC 1170.18(b)(1)-(3) meaningless. None of those factors actually matter. What matters, under this definition, is whether the court can show that the petitioner poses an unreasonable risk of committing a handful of very specific offenses. It's not enough to determine that the petitioner is likely to commit a felony; the court must instead determine that the petitioner is likely to possess a weapon of mass destruction, or engage in solicitation to commit murder, or some other equally fact-specific conduct. From a practical perspective, such a determination is highly unlikely -- it's hard to imagine how a court could come to such a specific conclusion. Thus, this language acts as a virtual get out of jail free card for incarcerated felons.
Prop 47 changes the standard for granting Prop 36 resentencing petitions
New PC 1170.18(c):
(c) 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.
The key words in (c) are “As used throughout this Code…” Rather than apply that very narrow definition of “unreasonable risk” only to this new section, the language would apply that definition to the entire Penal Code. The only other section in the Penal Code that uses the phrase “unreasonable risk of danger to public safety” is PC 1170.126, which sets the standard courts must use when reviewing petitions for resentencing under Prop 36 (2012). These are the petitions from third-strikers whose third strike was not serious or violent.
Under this definition, courts would face the same challenges in denying Prop 36 resentencing petitions that they would for the new Prop 47 petitions, as discussed above.
Prop 47 allows dangerous criminals to legally own guns
Prop 47 also allows more dangerous criminals to legally own guns. Felony convictions carry a lifetime prohibition on owning guns. This measure takes many of those felonies and reduces them to misdemeanors, allowing people convicted of these offenses to escape restrictions on gun ownership.
Prop 47 will make it more difficult for law enforcement to obtain search warrants
There have been some concerns raised about how Prop 47 would impact law enforcement’s ability to get search warrants in drug cases. Since simple possession will no longer be a felony, it becomes more difficult to establish probable cause that a felony is being committed – “I think this guy has drugs on him” is no longer a sufficient pretext for obtaining a search warrant.
How does this purport to create "safe neighborhoods and schools"?
Beginning in July 2016, the Department of Finance would annually be required to calculate how much money was saved by the implementation of this act and transfer that amount of money from the General Fund to the Safe Neighborhoods and Schools Fund, which will be a continuously appropriated Special Fund. Money from the Safe Neighborhoods and Schools Fund will be allocated as follows:
· 65% to the Board of State and Community Corrections (BSCC) for grant programs to public agencies aimed at supporting mental health and substance abuse treatment, as well as diversion programs
· 25% to the California Department of Education (CDE) for grants targeted at reducing truancy, drop-outs, and crime victims among K-12 students
· 10% to the Victims Compensation and Government Claims Board (VCGCB) for victim services grants
How does this create fiscal savings?
Overall, the Legislative Analyst's fiscal analysis of the measure estimates that net state criminal justice savings could reach the low hundred millions annually, and that county criminal justice savings could also reach the low hundred millions annually. Here is a brief summary of how those savings are achieved:
· State Prisons/Parole – Creates a temporary increase in parole costs for resentenced felons who will now be released on parole, but ultimately saves money by lowering the state prison population.
· State Courts – Creates a one-time increase in costs for resentencing and reclassification hearings, as well as more parole revocation hearings as a result of more people being placed on parole following resentencing. However, these costs will be partially offset because misdemeanors are generally shorter trials, and fewer people on county community supervision (like felony probation) means fewer revocation hearings. In sum, state court costs will increase in the short term, but the LAO projects a net savings annually thereafter.