April 26, 2016
2016-IPG#18: PROPOSITION 47 UPDATE - II
On November 4, 2014, the voters in California passed Proposition 47, an initiative that, among other
things, reduced various theft-related, forgery, and drug possession crimes previously prosecutable as
felonies to misdemeanors and established a procedure for most defendants convicted of those crimes
to return to court and have their felony convictions for those crimes reduced to a misdemeanors.
This IPG memo incorporates the previous IPG#16 memo on Proposition 47 and provides an outline
of the laws enacted or amended by Proposition 47, the over 80 published cases interpreting those
laws, and some of the legal issues created by Proposition 47.
It does not discuss policy
determinations or specific procedures implemented by the various counties in addressing
Proposition 47. This IPG memo had its genesis in a P&A memo that, in turn drew directly from a
memo put together by the incomparable Santa Clara County DDA Kathy Storton. The current or
previous versions of this outline relied on materials prepared by retired Judge J. Richard Couzens,
the Los Angeles District Attorney’s Office, Ventura County Senior DDA Kim Gibbons, and Orange
County DDA Keith Bogardus, as well as critical information provided by Alameda County ADAs Mike
O’Connor and John Jay, Contra Costa County Chief ADA Doug MacMaster, Contra Costa County
DDA Ryan Wagner, Fresno County Chief DDA Greg Anderson, former San Diego County DDA Lisa
Rodriguez Any errors in this IPG memo, however, are properly attributed to Santa Clara County
DDA Jeff Rubin. If you only have five minutes to bone up on Proposition 47 – flip this page over.
This IPG memo is accompanied by a podcast featuring Prop 47 expert
Santa Clara County DDA Eunice Yang. The podcast provides 90
minutes of general MCLE credit and may be accessed at the following
link: https://www.youtube.com/channel/UC5aiUCbAzLfrlQ8AdCF3GCA.
1
What Prosecutors Need to Know About Prop 47 – If There is Only Five Minutes to Learn It
 Prop 47 eliminated a prosecutor’s ability to charge a wide variety of common drug and theft-related crimes as
felonies except when the defendants have convictions requiring sex offender registration or for crimes listed in Penal
Code section 667(e)(2)(c)(iv), e.g., forcible sexual assaults, child molestation, homicides, serious or violent felonies
punishable by life imprisonment or death. Crimes listed in section 667(e)(2)(c)(iv) are referred to by the (pretty cool)
term: “super strikes.”
 Prop 47 created a new crime of “shoplifting” (PC § 459.5) that makes it a misdemeanor to enter a “commercial
establishment” during regular business hours with the intent to steal property worth $950 or less, requires the crime
to be charged if applicable, and bars charging of theft or burglary in the alternative. It can be a felony if the defendant
has been convicted of a crime requiring sex offender registration or of a super strike.
Petty theft with a prior (PC § 484/666) is longer a wobbler – it is a simple misdemeanor unless the person has been
convicted of a crime requiring sex offender registration or super strikes.
Certain types of grand theft, including theft from the person (PC § 487(c)), theft of a firearm (PC § 487(d)(2)), and
theft of an automobile (PC § 487(d)(1)), are no longer wobblers if the value of the property taken is $950 or less; the
crimes are simple misdemeanors unless the person has been convicted of a crime requiring sex offender registration
or a super strike.
Forgeries (PC § 470) of certain types of items (e.g., checks, money orders) are no longer wobblers if the value of the item
does not exceed $950. They are simple misdemeanors unless the person has been convicted of a crime requiring sex
offender registration or of a super strike – and/or the defendant is also convicted of identity theft.
Writing bad checks (PC § 476) is no longer a wobbler if the amount of the checks written is less than $950. It is a
misdemeanor unless the person has been convicted of a crime requiring sex offender registration or of a super strike
and/or has three prior convictions for violating Penal Code sections 470, 475, 476 or 476a.
 Receiving stolen property (PC § 496) is now only a felony if the property has a value over $950 unless the defendant
has been convicted of a crime requiring sex offender registration or of a super strike – in which case it remains a
wobbler.
The three simple drug-possession offenses (H&S §§ 11350(a), 11377(a), 11357(a)) are no longer felonies or wobblers
– they are just misdemeanors unless the defendant has been convicted of a crime requiring sex offender registration
or of a superstrike.
Defendants without superstrikes or convictions requiring sex offender registration who have felony convictions for
crimes impacted by Prop 47 and who can show they would have only been guilty of misdemeanors if Prop 47 had been
in effect at the time they were convicted are entitled have their conviction reduced to a misdemeanor unless a court
determines a defendant asking for resentencing would pose an unreasonable risk of danger to public safety as defined.
2
TABLE OF CONTENTS
I.
IMPACT OF PROPOSITION 47 ON CRIMES COMMITTED AFTER ITS PASSAGE
15
1.
What is the expressed purpose behind Prop 47?
15
2.
What is the effective date of Prop 47?
16
3.
The new crime of “shoplifting”: Penal Code section 459.5
16
A.
What is the specific statutory language of Penal Code section 459.5?
17
B.
What appears to be the purpose behind the enactment of section 459.5?
17
C.
Is the requirement that the prosecution charge a defendant who commits shoplifting
under section 459.5, and the limitation on the ability of the prosecution to charge
theft or burglary in conjunction with a charge of shoplifting, a violation of the
separation of powers?
18
What is a “commercial establishment?”
20
D.
(i)
Is entry into the noncommercial area of a commercial establishment or the
commercial area of a noncommercial establishment a violation of section 459.5? 22
E.
Does the crime of shoplifting apply to entry into a store with the intent to commit theft
even if no theft is committed?
23
F.
Does the crime of shoplifting apply to entry into a store after the store is closed?
24
G.
Will there ever be any reason to charge shoplifting in violation of section 459.5
instead of charging petty theft?
24
Will prosecutors ever want to charge a defendant with a violation of section 459.5
instead of second degree burglary (i.e., when the defendant has prior convictions
requiring sex offender registration or convictions for super strikes)?
25
If a defendant has to register as a sex offender, but he does not have a conviction for a
crime listed in Health & Safety Code section 290(c), is the defendant eligible for
felony punishment under section 459.5?
26
Does section 459.5 bar charging automobile burglaries or other burglaries that do not
that do not fit the definition of “shoplifting”?
27
H.
I.
J.
K.
Does entry into a commercial establishment with the intent to commit a crime
(e.g., cashing forged checks or identity theft) that does not meet the technical definition
of “larceny” constitute a violation of section 459.5?
28
L.
Does entry into a commercial establishment with the intent to commit a felony other
than theft constitute a violation of section 459.5?
34
i.
34
Entry with the intent to commit identity theft
3
ii.
M.
4.
Kathy Storton’s Penal Code section 459.5 Chart
35
35
The slowly disappearing punishment for, and crime of, “petty with a prior”
(Penal Code § 484/666)
36
A.
Current statutory language of Penal Code section 666
37
B.
If a defendant with a disqualifying prior conviction commits a new theft, how many
prior theft-related convictions does the defendant have to have in order for the
defendant to be potentially eligible for state prison?
37
May a defendant who must register as a sex offender have his sentence enhanced to a
felony for one of the theft-related crimes designated in section 666(a) even if the
defendant does not have a conviction for a crime listed in Penal Code section 290(c)?
38
D.
Does Proposition 47 impact violations of Penal Code section 666.5?
38
E.
Kathy Storton’s Penal Code section 666 chart
39
C.
5.
Entry with the intent to commit perjury
The new definition of grand theft: Penal Code section 490.2
39
A.
The statutory language of Penal Code section 490.2
40
B.
What is the punishment for grand theft when the value of the money, labor, real
or personal property taken does not exceed $950?
41
C.
Are all statutes that define “grand theft” subject to Penal Code section 490.2?
41
D.
What statutes make reference to “theft” and/or may potentially be impacted by
section 490.2?
42
Does section 490.2 cover burglaries in violation of Penal Code section 459 where the
property taken during the burglary is less than $950?
50
E.
F.
Does section 490.2 apply to acquiring or retaining access card information in violation
of Penal Code section 484e(d)?
52
G.
If a defendant takes property under $950 from the person of another in violation of
Penal Code section 487(c), is the person subject to felony punishment?
57
If a defendant takes a vehicle worth less than $950 in violation of Penal Code
section 487(d)(1), is the person subject to felony punishment?
58
Does Prop 47 have any impact on the ability to charge a defendant with a violation of
Vehicle Code section 10851 when the automobile that is driven or taken is worth less
than $950?
58
H.
I.
i.
Cases and arguments defense counsel will rely on in support of a request for
treating a violation of Vehicle Code section 10851 as a straight misdemeanor
4
ii.
iii.
J.
L.
6.
59
Cases and arguments that prosecutors can rely on that undermine the claim
a violation of Vehicle Code section 10851 should be treated as a felony
regardless of whether the value of the vehicle stolen is less than $950
61
Should prosecutors prove up the value of the vehicle in future cases involving
Vehicle Code section 10851 violations?
66
If a defendant steals a firearm worth less $950 in violation of Penal Code section
487(d)(2), is the person subject to felony punishment?
i.
K.
(for purposes of going forward or for purposes of reducing their prior section
10851 felony conviction to a misdemeanor) if the value of the vehicle stolen is
less than $950
66
Can a conviction for violating Penal Code section 487(d)(2) be a “strike” offense? 67
Is elder abuse involving theft, embezzlement, fraud, or identity theft in violation of
Penal Code section 368(d) or (e) subject to felony punishment?
68
Are statutes punishing “embezzlement” or “larceny” subject to Penal Code section
490.2?
69
M.
If the property taken is under $50, does section 490.2 require that the theft be charged
as a misdemeanor?
70
N.
How should thefts involving property worth less than $950 be charged when the
defendant has a prior conviction requiring sex offender registration or a super strike?
71
O.
Does Proposition 47 have any impact on the statute of limitations tolling provisions in
grand theft cases?
72
P.
Kathy Storton’s Penal Code section 490.2 Theft Chart
73
The impact of Proposition 47 on the crime of forgery: new Penal Code
section 473(b)
74
A.
The statutory language of amended Penal Code section 473
75
B.
What crimes are likely to be viewed as “forgeries” for purposes of Prop 47?
76
C.
Is the value of the forged item calculated by the amount stated on the face of the
document, the amount obtained by passing the forged document, or the document’s
intrinsic value?
77
May forged items be aggregated to obtain a total over $950 in order to preclude the
reduction of multiple forgeries to misdemeanors?
78
Kathy Storton’s Forgery chart
79
D.
E.
5
7.
The impact of Proposition 47 on the crime of passing a bad check: Penal Code
section 476a
79
A.
The statutory language of Penal Code section 476a
80
B.
Can the “bad checks” be aggregated in order to prevent a defendant from being
resentenced under section 1170.18?
81
Kathy Storton’s bad check (Penal Code section 476a) chart
82
C.
8.
9.
10.
11.
12.
The impact of Prop 47 on the crime of receiving stolen property: Penal Code
section 496, 496d, and other receipt of stolen property crimes
82
A.
The statutory language of Penal Code section 496
83
B.
What is the impact of Proposition 47 on Penal Code section 496d (buying or receiving
a motor vehicle) or other section “496-like” statutes?
84
C.
Kathy Storton’s Penal Code section 496 chart
87
The impact of Prop 47 on possession of cocaine, heroin and other drugs
subject to Health & Safety Code Sections 11350
88
A.
Statutory language of Health and Safety Code section 11350(a)
89
B.
If a defendant has been convicted of a crime requiring sex offender registration or of
a super strike, why does a violation of section 11350(a) remain a straight felony instead
of a wobbler?
89
C.
Kathy Storton’s Health & Safety Code section 11350 chart
89
The impact of Prop 47 on possession of marijuana and hashish (Health &
Safety Code Sections 11357)
89
A.
Statutory Language of Health and Safety Code section 11357(a)
90
B.
Kathy Storton’s Health & Safety Code section 11357(a) chart
91
The impact of Prop 47 on possession of methamphetamine, PCP, and other
drugs subject to Health & Safety Code Section 11377
91
A.
Statutory language of Health and Safety Code Section 11377(a)
92
B
Kathy Storton’s Health & Safety Code section 11377(a) chart
92
Does Proposition 47 apply to the crime of conspiracy in violation of Penal Code
section 182 if the conspiracy is to commit one of the offenses (e.g., petty theft)
that is covered by Proposition 47?
6
93
13.
14.
15.
Does equal protection require application of Proposition 47 to offenses not
designated in Proposition 47?
93
Does the intent behind Proposition 47 justify its application to offenses not
mentioned in Proposition 47?
95
Must defendants with convictions for registerable sex offenses or super strikes
who are convicted of offenses reduced by Proposition 47 serve their time in
county jail or can they serve their time in state prison?
96
16.
What prior convictions will disqualify a defendant from being prosecuted solely
as a misdemeanant even when the defendant commits new crimes listed
in Proposition 47?
97
17.
Must the prior convictions that disqualify a defendant from receiving a
misdemeanor sentence (i.e., convictions for crimes listed in Penal Code section
290(c) or super strikes) be pled and proved?
97
18.
If a defendant commits two new offenses, one of which is Proposition 47 eligible
and the other is a disqualifying offense, and then is convicted of both
offenses simultaneously, is the court still limited to sentencing defendant
to a misdemeanor on the Proposition 47 eligible offense?
97
19.
May juvenile adjudications be treated as disqualifying prior convictions for
purposes of Proposition 47?
98
The impact of Proposition 47 on arrests and obtaining search warrants
99
A.
How does Prop 47 impact the ability of officers to make arrests?
99
B.
Can an officer make an arrest for a crime that is a felony if committed by a defendant
with a conviction for a super strike or registerable sex offense (but is otherwise
a misdemeanor) if the officer is unaware of the suspect’s prior convictions for a super
strike or a registerable sex offense?
101
C.
How does Prop 47 impact the ability of officers to obtain search warrants?
20.
II.
1.
2.
102
THE IMPACT OF PROPOSITION 47 ON CRIMES NOT YET CHARGED OR
FULLY ADJUDICATED
103
How should pending cases that have been reduced by Proposition 47
to misdemeanors, but which are currently charged as felonies, be handled?
104
A.
104
Pending cases held to answer as felonies
If a case was charged within the statute of limitations when it was a felony, but
outside the statute of limitations if the crime is designated as a misdemeanor,
is the defendant entitled to a dismissal?
7
105
3.
If a felony case is reduced to a misdemeanor pursuant to Proposition 47,
what statutory speedy trial limits apply? And if misdemeanor statutory speedy
trial limits apply, at what point does the misdemeanor statutory speedy
trial clock start ticking?
108
4.
Can a suspect be arrested on an outstanding felony warrant when the crime for
which he is sought is no longer a felony under Proposition 47?
110
III.
THE IMPACT OF PROPOSITION 47 ON CRIMES FOR WHICH A DEFENDANT
HAS ALREADY BEEN CONVICTED IN GENERAL
111
The resentencing and re-designation provisions of Proposition 47:
Penal Code section 1170.18
111
A.
111
1.
2.
3.
4.
5.
Statutory Language of Penal Code section 1170.18
Does Proposition 47 operate retroactively to automatically reduce prior
felony convictions of defendants?
114
Can cases interpreting the resentencing provision (section 1170.126) of
Proposition 36 (The Three Strikes Reform Act) be used in interpreting
the resentencing provision of Proposition 47 (section 1170.18)?
116
Are defendants convicted of crimes not mentioned in Proposition 47 eligible
for resentencing?
117
Which defendants are barred from receiving Proposition 47 relief even if one
or more of the counts for which relief is sought is facially-eligible for relief
under section 1170.18?
119
A.
Defendants who have prior convictions for crimes requiring sex offender registration
or super strikes are not eligible to petition for recall of a sentence
119
B.
Prior convictions that are super strikes or require sex offender registration
119
C.
If a defendant is convicted of a disqualifying offense (i.e., a superstrike or
conviction requiring sex-offender registration) at the same time or after the defendant
was convicted of a Proposition 47 eligible offense, is the defendant still eligible
for resentencing pursuant to section 1170.18?
121
D.
Are defendants with juvenile adjudications entitled to a resentencing on felonies
that Proposition 47 now treats as misdemeanors?
124
Is a defendant who is currently serving a sentence for misdemeanor conviction of
Penal Code section 484/666 based on having three prior convictions entitled
to a resentencing under Proposition 47?
125
E.
F.
Has a defendant who has been convicted of a “serious and/or violent felony offense”
and sentenced to a life term as a result of an enhancement or alternative sentencing
scheme been convicted of a disqualifying superstrike? [Pagination is not a mistake]
228
8
IV.
WHAT ARE THE RULES GOVERNING RESENTENCING OF DEFENDANTS
WHO ARE CURRENTLY SERVING A SENTENCE FOR A FELONY CONVICTION
THAT WOULD BE A MISDEMEANOR UNDER PROPOSITION 47?
125
1.
What happens if the trial court that originally entered the sentence is no
longer available?
126
A.
What does it mean for a trial court not to be “available?”
126
B.
Can the right to resentencing by the same trial court be waived?
127
2.
What does it mean to be “currently serving a sentence?”
127
A.
Are persons currently serving time in jail or prison “serving a sentence?”
127
B.
Are persons currently on probation “serving a sentence?”
127
C.
Are persons currently on mandatory supervision pursuant to Penal Code section
1170(h) “serving a sentence?”
129
D.
Are persons currently on parole “serving a sentence?”
130
E.
Are persons currently on post-release community supervision (PRCS) “serving
a sentence?”
132
3.
What starts the process of resentencing?
134
4.
Does the petition have to be a written petition?
135
5.
Where must the petition be filed?
135
6.
When must the petition be filed?
135
7.
What must be included in the petition?
135
8.
Can a petition be denied without a hearing?
136
9.
Who has the burden of proof to establish the facts upon which eligibility is
based?
137
What is the burden of proof the defendant must meet in establishing the
facts upon which eligibility is based?
138
What can be considered by the court in assessing whether defendant has met
his or her burden - either at the point of the initial showing of eligibility or
at the hearing on whether the petition should be granted?
140
If the allegations in the petition are disputed by the People, should an
evidentiary hearing take place?
142
10.
11.
12.
9
13.
Is the defendant entitled to assistance of counsel in filing the petition for recall
and resentencing or at any subsequent hearing on the petition?
143
14.
Is the defendant entitled to be present at the evidentiary hearing? If so, can
defendant waive his presence?
144
15.
Is the defendant entitled to represent himself at the evidentiary hearing?
146
16.
Is the defendant entitled to a jury trial on his eligibility for resentencing?
146
17.
Is the prosecutor entitled to notice of the hearing or to participate in the
hearing?
147
Are victims entitled to notice of the hearing or to participate in the hearing
before a court may reduce a felony conviction to a misdemeanor?
149
In deciding whether a defendant would have been guilty of a misdemeanor
had Proposition 47 been in effect at the time of the conviction, does a court
consider whether other charges were dismissed or reduced at the time of the
plea?
150
If the defendant is serving a single sentence for multiple convictions, some of
which are eligible for Proposition 47 relief and some of which are not,
can the defendant still obtain relief pursuant to section 1170.18?
151
What does a court take into account in deciding whether the defendant would
pose an unreasonable risk of danger to public safety?
151
22.
Is the term “an unreasonable risk of danger to public safety” defined?
152
23.
Who has the burden of showing defendant poses and unreasonable risk of
danger to public safety at the hearing and what is that burden?
154
Is hearsay admissible at the portion of the resentencing hearing addressing
whether defendant poses an unreasonable risk of danger to public safety?
155
If a court denies the defendant’s petition either initially or after a hearing,
does the court have to state reasons for the denial on the record?
156
18.
19.
20.
21.
24.
25.
26.
In deciding whether a defendant is eligible for resentencing, does it make a
difference whether defendant’s conviction was obtained by way of trial or plea? 157
27.
If a defendant is “resentenced” on one count that has been reduced to a
misdemeanor but defendant is serving a multi-count sentence, can the
resentencing court restructure the entire sentence in light of the reduction?
158
May a defendant who is resentenced pursuant to section 1170.18 receive a
longer sentence than he initially received?
160
28.
10
29.
If a plea-bargained felony charge becomes a misdemeanor as a result of
Proposition 47, are the People entitled to withdraw from the plea agreement
and reinstate the original charges?
A.
What should prosecutors do until the issue of whether a successful resentencing
allows the People to vacate the original plea bargain is decided?
170
Should prosecutors be entering pleas with express terms limiting the ability of
defendants to take advantage of future changes in the law?
171
Can a prosecutor object to the post-sentence reduction of a felony to a
misdemeanor pursuant on grounds that it violates the contracts clause of the
federal or state constitution by depriving the prosecution of the benefits of the
plea bargain?
172
Do the resentencing provisions of Proposition 47 violate the right of victims
under the California Constitution to finality in criminal cases?
174
If a defendant is resentenced, is the defendant subject to any further
supervision?
175
B.
30.
31.
32.
A.
B.
33.
160
If a court decides not to place a defendant on parole, is there any other type of
supervision that must be imposed?
176
May a defendant be placed on probation after being resentenced?
177
If a defendant is resentenced under section 1170.18 and is placed on one-year
parole, is the defendant entitled to any credit toward that time period
(or outstanding fines) if resentencing leaves the defendant with additional
custody credits?
A.
177
Can a defendant who is resentenced be placed on a one-year “misdemeanor” period of
parole pursuant to section 1170.18(d) if the parole period would exceed the amount of
time remaining on defendant’s felony parole or PRCS?
180
34.
What entity supervises misdemeanor “parole” for resentenced defendants?
V.
WHAT ARE THE RULES GOVERNING RESENTENCING OF DEFENDANTS
WHO HAVE COMPLETED SERVING A SENTENCE FOR A FELONY
CONVICTION THAT WOULD BE A MISDEMEANOR UNDER PROPOSITION 47? 181
1.
Which defendants who completed serving their sentences may petition for
recall and resentencing under section 1170.18?
A.
Will defendants who have convictions for crimes requiring sex offender registration
or super strikes be able to have their felony conviction re-designated as a
misdemeanor?
11
181
181
181
B.
If a defendant is convicted of a disqualifying offense (i.e., a superstrike or conviction
requiring sex-offender registration) at the same time or after the defendant was
convicted of a Proposition 47 eligible offense, is the defendant still eligible for
re-designation pursuant to section 1170.18(f)?
182
C.
Are defendants with juvenile adjudications entitled to a re-designation when the
crime which is the subject of their “adjudication” has been reduced from a felony to a
misdemeanor per Proposition 47?
182
D.
Is a defendant who is currently serving a sentence for misdemeanor conviction of
Penal Code section 484/666 based on having three prior convictions entitled
to a re-designation under Proposition 47?
183
2.
What starts the process of re-designation?
183
3.
Where must the application be filed?
183
4.
When must the application be filed?
183
5.
What happens if the trial court that originally entered the sentence is no
longer available?
184
A.
What does it mean for a trial court not to be “available?”
184
B.
Can the right to re-designation by the same trial court be waived?
184
6.
Is the defendant entitled to a hearing on his or her application?
184
7.
Is the prosecutor entitled to notice of the application or to be heard on
whether the application should be granted?
185
Is the victim entitled to notice of the application or to be heard on whether
the application should be granted?
186
Is the defendant entitled to assistance of counsel in filing the application
or at any subsequent hearing on the application?
186
Is a defendant who has been granted Penal Code section 1203.4 relief on his
felony conviction (i.e., had his conviction “expunged”), still entitled to
obtain re-designation of his offense to a misdemeanor?
187
11.
When should a court grant the defendant’s application?
187
12.
In deciding whether a defendant would have been guilty of a misdemeanor
had Proposition 47 been in effect at the time of the conviction, does a court
consider whether other charges were dismissed or reduced at the time of the
plea?
188
8.
9.
10.
12
13.
In deciding whether to grant a defendant’s application for relief when the
defendant has completed his sentence, does there have to be any finding the
granting of the application would not pose an unreasonable risk of danger
to the public?
188
VI.
POST-PROPOSITION 47 REDUCTION IMPACTS
188
1.
What does it mean to say that a felony reduced to a misdemeanor pursuant
to section 1170.18 is a “misdemeanor” for all purposes?
188
If a defendant obtains a reduction of a felony conviction to a misdemeanor
pursuant to Penal Code section 1170.18, may the defendant later obtain or
possess a firearm?
189
If a defendant obtains a reduction of a felony conviction that underlies a
charge or conviction of a being a felon in possession of a firearm in violation
of Penal Code section 29800, how will the charge or conviction for being a
felon in possession of a firearm be impacted?
190
2.
3.
4
If a defendant simultaneously (and successfully) obtains a reduction of his sole
felony conviction to a misdemeanor pursuant to Proposition 47 and Penal
Code section 17(b), will the defendant be allowed to possess a firearm?
192
5.
What factors generally go into deciding the impact of a Proposition 47 reduction
of a felony to a misdemeanor on use of the conviction for enhancement
purposes?
193
A.
B.
6.
7.
When a prior conviction is reduced to a misdemeanor under Proposition 47 is
important in deciding whether it can be used to enhance a sentence.
194
Whether the conviction allowing for the enhancement at issue involves an offense
expressly mentioned in Proposition 47 is important in deciding whether it can be
used to enhance a sentence.
199
Does it violate equal protection to refuse to give Proposition 47 reductions
retroactive effect?
200
One-Year State Prison Priors: If a defendant has had a felony conviction (for
which the defendant completed a prior prison term) reduced to a
misdemeanor pursuant to Proposition 47, may the prior conviction still be
used as a one-year Penal Code section 667.5 prior to enhance a defendant’s
subsequent felony conviction?
202
A.
8.
Can a Penal Code section 667.5 enhancement be used regardless of when a felony
conviction for which the defendant has served a prior prison term has been reduced
to a misdemeanor?
B.
Does it make a difference when a prior is reduced in deciding a 667.5 prior’s use?
Five Year Priors: Can a conviction for theft of a firearm in violation of Penal
Code section 487(d)(2) that is reduced pursuant to Proposition 47 later be
used to enhance a sentence by five years under Penal Code section 667(a)?
13
203
207
213
9.
Strikes: Can a conviction for theft of a firearm under $950 in violation of Penal
Code section 487(d)(2) that occurred before the passage of Proposition 47
but is later reduced to a misdemeanor still be used as a strike offense in a
future case?
214
10.
Bail Enhancement: If a defendant obtains a reduction of a felony conviction
to a misdemeanor under Proposition 47 in a multi-count case where the
defendant is charged with an on-bail enhancement pursuant to Penal Code
section 12022.1, must the on-bail enhancement be dismissed?
216
Felony FTA: If a defendant obtains a reduction of a felony conviction
to a misdemeanor under Proposition 47 and the defendant had suffered an
additional felony conviction for failing to appear in violation of Penal Code
section 1320 on the felony that was reduced, must the felony conviction for
failing to appear also be reduced to a misdemeanor conviction?
218
11.
12.
Drug Offender Registration: If a defendant obtains a reduction of a felony drug
offense to a misdemeanor drug offense, is the defendant still required to
register as a drug offender?
220
13.
Felony Fines: If a defendant obtains a reduction of a felony offense to a
misdemeanor offense, is the defendant entitled to a reduction in the fines
imposed?
221
A.
The Restitution Fine
221
B.
The Felony Parole/PRCS/Mandatory Supervision Restitution Fine
222
14.
15.
16.
DNA Sample: Is a defendant whose felony conviction is reduced to a
misdemeanor pursuant to section 1170.18 entitled to have his DNA sample
expunged from the DNA database?
223
Impeachment: What is the impact of a Proposition 47 reduction of a felony
to a misdemeanor on use of the conviction for impeachment purposes?
224
May a defendant whose petition or application for resentencing or
redesignation been denied refile the petition?
225
17.
Appeal: If a sentencing grants or denies a petition or application to
resentence or re-designate a felony conviction to a misdemeanor, is the proper
place to file an appeal the appellate division of the superior court (which
handles misdemeanor appeals) or the Court of Appeal (which handles felony
appeals)?
226
18.
People’s Appeal: Can the People appeal the granting of a petition or
application to resentence or re-designate a felony?
227
Does a trial court have jurisdiction to hear defendant’s request to reduce a
felony conviction to a misdemeanor while the defendant is presently
appealing his felony conviction?
227
19.
14
I.
1.
THE IMPACT OF PROPOSITION 47 ON CRIMES
COMMITTED AFTER ITS PASSAGE
What is the expressed purpose behind Prop 47?
Section 3 of Proposition 47 states: “In enacting this act, it is the purpose and intent of the people of
the State of California to:
(1) Ensure that people convicted of murder, rape, and child molestation will not benefit from this act.
(2) Create the Safe Neighborhoods and Schools Fund, with 25 percent of the funds to be provided to
the State Department of Education for crime prevention and support programs in K–12 schools, 10
percent of the funds for trauma recovery services for crime victims, and 65 percent of the funds for
mental health and substance abuse treatment programs to reduce recidivism of people in the justice
system.
(3) Require misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and
drug possession, unless the defendant has prior convictions for specified violent or serious crimes.
(4) Authorize consideration of resentencing for anyone who is currently serving a sentence for any of
the offenses listed herein that are now misdemeanors.
(5) Require a thorough review of criminal history and risk assessment of any individuals before
resentencing to ensure that they do not pose a risk to public safety.
(6) This measure will save significant state corrections dollars on an annual basis. Preliminary
estimates range from $150 million to $250 million per year. This measure will increase investments
in programs that reduce crime and improve public safety, such as prevention programs in K–12
schools, victim services, and mental health and drug treatment, which will reduce future
expenditures for corrections.” (People v. Shabazz (2015) 237 Cal.App.4th 303, 308 [identifying
the factors as the “stated purpose and intent” of Proposition 47]; see also People v. Myers
(2016) 245 Cal.App.4th 794 [200 Cal.Rptr.3d 19, 24] [“The goal of Proposition 47 was to reduce the
cost of housing petty criminals.”]; People v. Diaz (2015) 238 Cal.App.4th 1323, 1328 [declared
purpose of Proposition 47 is “to ensure that prison spending is focused on violent and serious
offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings
generated ... into prevention and support programs in K–12 schools, victim services, and mental
15
health and drug treatment” while at the same time “ensur[ing] that sentences for people convicted of
dangerous crimes ... are not changed.”].)
“The Act clearly was intended to lessen punishment for ‘nonserious, nonviolent crimes like petty
theft and drug possession’ (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3,
subd. (3), p. 70)14, in order ‘to ensure that prison spending is focused on violent and serious
offenses....’ (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 2, p. 70).” (People v.
Ruff (2016) 244 Cal.App.4th 935, 945 [rev. filed].)
“Section 15 of Proposition 47 provides the “act shall be broadly construed to accomplish its
purposes” and Section 18 provides that it “shall be liberally construed to effectuate its purposes.”
(See People v. Thompson (2015) 243 Cal.App.4th 413, 418 [rev. gtd, dkt # S232212]; Alejandro
N. v. Superior Court (2015) 238 Cal.App.4th 1209, 1222; People v. Gonzalez (2016) 244
Cal.App.4th 1058, 1064 [rev. filed].)
2.
What is the effective date of Prop 47?
Proposition 47 became effective on November 5, 2014. (See People v. Carrea (2016) 244
Cal.App.4th 966, 972 [rev. filed]; People v. Ruff (2016) 244 Cal.App.4th 935, 938 [rev. filed];
People v. Diaz (2015) 238 Cal.App.4th 1323, 1328; Cal. Const., art. II, § 10 subd. (a).) As of that
date, the “People are required, as to any eligible defendant, to charge any of the redesignated
offenses [Pen. Code, §§ 459.5, 473, 476a, 490.2, 496 and 666, as well as in Health & Saf. Code §§
11350, 11357, 11377] as misdemeanors.” (People v. Williams (2016) 245 Cal.App.4th 458, 464
[rev. filed])
3.
The new crime of “shoplifting”: Penal Code section 459.5
Proposition 47 enacted a new crime entitled “shoplifting” that is a hybrid of a commercial burglary
and a petty theft. The crime of shoplifting “has three elements: (1) entry into a commercial
establishment, (2) while the establishment is open during regular business hours, and (3) with intent
to commit larceny of property valued at $950 or less. (In re J.L. (2015) 242 Cal.App.4th 1108, 1114
citing to Pen. Code, § 459.5.)
“Shoplifting is now a misdemeanor unless the prosecution proves the value of the items stolen
exceeds $950.” (People v. Sherow (2015) 239 Cal.App.4th 875, 879 citing to People v. Rivera
(2015) 233 Cal.App.4th 1085, 1091; People v. Contreras (2015) 237 Cal.App.4th 868, 889–891.)
16
Notwithstanding the common meaning of the term “shoplifting,” several courts have held that
specific language in the statute defining the crime of “shoplifting” controls over the traditional
definition of “shoplifting.” (See e.g., People v. Valencia (2016) 245 Cal.App.4th 730, 735] [rev.
filed]; People v. Vargas (2016) 243 Cal.App.4th 1416, 1424 [rev. gtd, dkt # S232673].)
A.
What is the specific statutory language of Penal Code section 459.5?
Penal Code section 459.5 states:
(a) Notwithstanding Section 459, shoplifting 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.*
(b) 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.”
*Editor’s note: For a list of the offenses specified in Penal Code § 667(e)(2)(C)(iv) and listed in Penal
Code § 290(c), see this IPG memo, section III-5-B at pp. 119-121. These offenses have come to be known
as “super strikes” (see Alejandro N. v. Superior Court of San Diego County (2015) 238
Cal.App.4th 1209, 1222, fn. 4; People v. Rivera (2015) 233 Cal.App.4th 1085, 1092) which is how we will
refer to them.
B.
What appears to be the purpose behind the enactment of section
459.5?
Under pre-existing law, a “shoplifter who surreptitiously enters a store with the intent to steal
commits burglary[.]” (People v. Davis (1998) 18 Cal.4th 712, 734.)
Although neither proponents nor the opponents of Prop 47 touched upon section 459.5 in the ballot
arguments, it appears the proponents were trying to eliminate burglary convictions based solely on
entries into retail stores in order to steal property valued under $950. Presumably, the proponents
did not want prosecutors to charge this type of second degree burglary in a post-Prop 47 world as an
17
alternative means of obtaining a felony conviction when a defendant steals property from a
commercial establishment under $950. That is why subdivision (b) requires that “[a]ny act of
shoplifting as defined in subdivision (a) shall be charged as shoplifting” and prevents the charging of
theft
C.
or
burglary
based
on
the
property
shoplifted
as
an
alternative
charge.
Is the requirement that the prosecution charge a defendant who
commits shoplifting under section 459.5, and the limitation on the
ability of the prosecution to charge theft or burglary in conjunction
with a charge of shoplifting, a violation of the separation of powers?
Article III, section 3 of the California Constitution provides the basis for application of the
separation of powers doctrine in California and states: “The powers of state government are
legislative, executive and judicial. Persons charged with the exercise of one power may not exercise
either of the others except as permitted by this Constitution.”
Certainly, the legislative branch has the authority to define what is or is not a crime and the
punishment for that crime without violating the separation of powers. (See Manduley v.
Superior Court (2002) 27 Cal.4th 537, 552 [“subject to the constitutional prohibition against cruel
and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the
legislative branch”].)
However (as Alameda County Assistant DDA Mike O’Connor has pointed out) an argument can be
made that the restrictions placed on prosecutorial discretion to charge crimes by Proposition 47
renders that aspect of Prop 47 unconstitutional as a violation of the separation of powers rule
embodied in Article III, section 3 of the California Constitution. Here is that argument:
“[T]he prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to
determine whom to charge with public offenses and what charges to bring. [Citations.] This
prosecutorial discretion to choose, for each particular case, the actual charges from among those
potentially available arises from ‘“the complex considerations necessary for the effective and efficient
administration of law enforcement.”’ [Citations.] The prosecution's authority in this regard is
founded, among other things, on the principle of separation of powers, and generally is not
subject to supervision by the judicial branch. [Citations.]’” (Manduley v. Superior Court (2002)
27 Cal.4th 537, 552 citing to People v. Birks (1998) 19 Cal.4th 108, 134, emphasis added by IPG.)
18
Consider the following language from People v. Mikhail (1993) 13 Cal.App.4th 846, a case dealing
with a question of the separation of powers between the judicial and executive branches: “Based on
article III, section 3 of the California Constitution, cases have held the charging function of a
criminal case is within the sole province of the executive branch, which includes the
Attorney General and the various district attorneys (Cal. Const., art. V, § 13) . . . Thus while the
legislative branch bears the sole responsibility and power to define criminal charges and to prescribe
punishment, it is the executive branch which decides which crime to charge and the
judicial branch which imposes sentence within the legislatively determined limits for the chosen
crime. (Mikhail at p. 854, citing to People v. Navarro (1972) 7 Cal.3d 248, 258, emphasis added
by IPG.) Accordingly, while an initiative (or statute) could prevent conviction for both a violation
of the new crime of section 459.5 and a violation of sections 459 or 484, it should not be able to
prevent charging those crimes in the alternative without an amendment to the California
Constitution.
Moreover, the fact that section 459.5 was added by way of an initiative enacted by the voters rather
than statute enacted by the legislature does not make a difference when it comes to whether the
new law violates the separation of powers doctrine.
“Under our constitutional system the
Legislature is not the exclusive source of legislative power. ‘The legislative power of this State is
vested in the California Legislature which consists of the Senate and the Assembly, but the people
reserve to themselves the powers of initiative and referendum.’ (Cal. Const., art. IV, § 1.) ‘The
initiative is the power of the electors to propose statutes and amendments to the Constitution and to
adopt or reject them.’ (Cal. Const., art. II, § 8, subd. (a).)” (Professional Engineers in
California Government v. Kempton (2007) 40 Cal.4th 1016, 1043.) As repeatedly pointed out
in the California Supreme Court, “[t]he electorate’s legislative power is ‘generally coextensive with
the power of the Legislature to enact statutes.’” (Professional Engineers in California
Government v. Kempton (2007) 40 Cal.4th 1016, 1043; accord Manduley v. Superior
Court (2002) 27 Cal.4th 537, 552 [“the power of the people through the statutory initiative is
coextensive with the power of the Legislature”]; Legislature v. Deukmejian (1983) 34 Cal.3d
658, 675 [same].) The separation of powers principles are applicable to statutes passed by voter
initiative and in applying these principles, courts essentially treat a voter-enacted statute as an act of
the Legislature. (See e.g., Manduley v. Superior Court (2002) 27 Cal.4th 537, 552 [applying
separation of powers analysis to statute enacted by initiative]; People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 [same].)
19
All that being said, section 459.5 is not the first statute to limit a prosecutor’s ability to charge a
crime. (See e.g., Pen. Code, § 288.5(c) [“No other act of substantial sexual conduct, as defined in
subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission
of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim
may be charged in the same proceeding with a charge under this section unless the other charged
offense occurred outside the time period charged under this section or the other offense is charged in
the alternative. A defendant may be charged with only one count under this section unless more
than one victim is involved in which case a separate count may be charged for each victim”].) And
prosecutors inclined to charge both section 459.5 and burglary or theft based on the taking of the
same property should be prepared to address defense arguments that, assuming the separation of
powers principles renders section 459.5(b) unconstitutional insofar as it restricts the ability of the
prosecution to charge both offenses, the initiative should nonetheless be interpreted to bar
conviction for anything other than section 459.5 if the conduct underlying alternative burglary or
theft charges is the same conduct underlying the section 459.5 charge.
D. What is a “commercial establishment?
As noted above, section 459.5 requires that the defendant enter “a commercial establishment with
intent to commit larceny while that establishment is open during regular business hours[.]” (Pen.
Code, § 459.5.) The statute, however, does not define the term “commercial establishment.”
Neither the current statute defining the crime of burglary (Pen. Code § 459) nor the statute defining
the punishment for burglary (Pen. Code, § 460) uses the term “commercial establishment.” Rather,
first degree burglary is distinguished from second degree burglary solely on the basis of whether the
structure entered is an “inhabited dwelling.”
*Editor’s note: The term “commercial establishment” was used in a former version of Penal Code section
667(e)(2) but was never interpreted.
Only a few published post-Proposition 47 cases have directly addressed what constitutes a
“commercial establishment” for purposes of section 459.5.
In re J.L. (2015) 242 Cal.App.4th 1108
In J.L., a juvenile court found a minor had committed burglary in violation of Penal Code section
459 based on the minor entering a school locker room and stealing another student’s cell phone out
20
of a school locker. After Proposition 47 passed, the minor petitioned to change his juvenile felony
burglary offense to a misdemeanor shoplifting offense under newly-enacted section 459.5. When
that petition was denied based on the trial court’s determination that the minor had not entered a
“commercial establishment,” as the term is used in section 459.5. The minor appealed. (Id. at pp.
1110-1111.)
On appeal, the minor argued that “a public high school is such an establishment because, as he put[]
it, a school “share[s] similar traits with a commercial establishment, such as maintaining regular
hours of operation, being closed regular days and hours, engaging with members of the public, and
conducting normal functions associated with most businesses (e.g. maintaining personnel, handling
payroll, accounting, accepting phone calls, dealing with inventory, etc.).” (Id. at p. 1113.) The
appellate court was not persuaded, finding that “[w]hatever broader meaning “commercial
establishment” as used in section 459.5 might bear on different facts, [the minor’s] theft of a cell
phone from a school locker room was not a theft from a commercial establishment. (Id. at p. 1104.)
Although the J.L. court did not come up an unqualified definition of “commercial establishment,”
the court did state that “[g]iving the term its commonsense meaning, a commercial
establishment is one that is primarily engaged in commerce, that is, the buying and
selling of goods or services.” (Id. at p. 1114 [and noting this definition comported with use of
the term in dictionaries and other legal sources], emphasis added by IPG.) The court also concluded
that the term “‘[s]hoplifting’ is commonly understood as theft of merchandise from a store or
business that sells goods to the public” and that the “voters enacting Proposition 47 understood the
reference to ‘shoplifting’ in the ballot pamphlet materials, including in the title and text of section
459.5, in the same way.” (Id. at pp. 1114-1115; cf., People v. Vargas (2016) 243 Cal.App.4th 1416
1423-1424 [rev. gtd, dkt # S232673] [discussed in this IPG memo, section I-3-K at pp. 30-31], and
finding the layperson’s understanding of shoplifting does not define scope of section 459].)
Considering “a public high school is not an establishment primarily engaged in the sale of goods and
services” but “an establishment dedicated to the education of students”, the court “simply [did] not
believe that the voters enacting Proposition 47 understood a public high school to be a commercial
establishment or a theft from a school locker to be “shoplifting.” (J.L. at p. 1115.) Thus, the J.L.
court found it was immaterial “that a school maintains regular hours, accepts phone calls, or may
handle payroll in connection with its personnel.” (Ibid.)
21
*Editor’s note: Although the J.L. court did not purport to give a comprehensive definition of
“commercial establishment,” the court cited various sources in support of its definition. One source that
was cited was 37 C.F.R. § 258.2, which is a copyright regulation defining the term “commercial
establishment” as “an establishment used for commercial purposes, such as bars, restaurants, private
offices, fitness clubs, oil rigs, retail stores, banks and financial institutions, supermarkets, auto and boat
dealerships, and other establishments with common business areas”. This is a fairly expansive definition.
In People v. Vargas (2016) 243 Cal.App.4th 1416 [rev. gtd, dkt # S232673] (a case discussed at
length in this IPG memo, section I-3-K at pp. 30-31) that held entry into a bank to cash a forged
check worth less than $950 qualified as “shoplifting”) the court agreed with the People that the term
“commercial establishment” in section 459.5 suggested that it applied to fewer structures than the
structures defined in the burglary statute (Pen. Code, § 459), which includes “any house, room,
apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent,
vessel,” etc. (Id. at p. 1424.) However, the Vargas court also stated that nothing in Proposition 47
“suggests the voters intended the term ‘commercial establishment’ to mean ‘retail establishment.’”
(Ibid; see also People v. Valencia (2016) 245 Cal.App.4th 730 [rev. filed] [entry into AT&T store
qualified]; People v. Root (2016) 245 Cal.App.4th 353, 356 [rev. filed] [noting People conceded
bank qualified].)
(i) Is entry into the noncommercial area of a commercial establishment or the
commercial area of a noncommercial establishment a violation of section
459.5?
One of the more hotly disputed issues concerning the scope of section 459.5 is whether an entry
and/or theft from an area of a commercial establishment that is not being used for commercial
purposes (i.e., a bathroom, a breakroom, etc.,) is “shoplifting.” The inverse question can arise when
the primary purpose of the building entered is not commerce, but some commerce takes place inside
the building (i.e., where the building houses a cafeteria or gift shop).
So far no published decision has provided a direct answer to either of these questions. In In re J.L.
(2015) 242 Cal.App.4th 1108 (discussed in this IPG memo, section I-3-D at pp. 20-21), the court held
entry into a school locker room to steal a cell phone was not shoplifting because a school was not a
commercial establishment. However, the court also stated, “[e]xcept for perhaps a school cafeteria
or bookstore (circumstances not at issue here, where the phone was stolen from a school locker), a
22
public school is not engaged in the business of selling merchandise or goods at all.” (Id. at p. 1115.)
This statement can be spun in two ways. It could be viewed as indicating that interpreting the term
the focus is on the primary purpose of the establishment regardless of whether some portion of the
establishment is used for commercial purposes. Alternatively, it could be viewed as suggesting that
entry and theft from the cafeteria or bookstore in a school might qualify as shoplifting.
In People v. Vargas (2016) 243 Cal.App.4th 1416 [rev. gtd, dkt # S232673] (a case discussed at
length this IPG memo, section I-3-K at p. 30-31) the People argued that interpreting section 459.5 to
apply to entry into a bank to cash a forged check worth less than $950 (as the defendant in Vargas
did) would mean it would also apply in the following situations: “[When] a person. . . enters a
restaurant and sneaks into the manager's office to steal $900 from the safe [;] [when] a person . . .
enters the 24–hour supermarket and breaks into the locked pharmacy to steal drugs[;] [and when] a
person . . . enters the locker room of a private club and steals personal items from the lockers[.]”
(Id. at pp. 1427-1428.) The Vargas court responded by noting that none of those situations was
before them but went on to say: We also doubt these acts would fall within our reading of section
459.5.
For instance, private areas of commercial establishments may not qualify as an
“establishment ... open during regular business hours” as required by section 459.5.” (Ibid.)
*Editor’s note: An excellent brief authored by Santa Clara County DDA Eunice Yang addressing the scope
of the term “commercial establishment” is available upon request.
E.
Does the crime of shoplifting apply to entry into a store with the
intent to commit theft even if no theft is committed?
As indicated above, the crime defined in Penal Code section 459.5 may be committed by entry to
commit theft when it can be shown that the defendant simply intended to steal items worth less than
$950. (See Pen. Code, § 459.5(a) [“shoplifting 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)”].) However, if property is not actually taken, it will be difficult to prove the specific
intent to take a particular item worth more than $950.
23
F.
Does the crime of shoplifting apply to entry into a store after the
store is closed?
Entry into a commercial establishment with intent to commit larceny outside the establishment’s
“regular business hours” is not shoplifting in violation of section 459.5(a); it is burglary in violation
of Penal Code section 459. (Pen. Code, § 459.5(a).)
Expect issues to arise in deciding what constitutes “regular business hours.” For example, is it
shoplifting (as opposed to burglary) when a defendant enters the store after posted business hours,
but before the doors to the store are closed and store employees are still handling other commercial
transactions?
One case has suggested that private areas of commercial establishments (otherwise open for regular
business hours) may not qualify as being an “establishment ... open during regular business hours”
for purposes of section 459.5. (See People v. Vargas (2016) 243 Cal.App.4th 1416, 1428 [rev. gtd,
dkt # S232673].)
G. Will there ever be any reason to charge shoplifting in violation of
section 459.5 instead of charging petty theft?
It is unlikely that prosecutors will often want to charge a violation of section 459.5 if the defendant
takes property from a store worth less than $950 and does not have a prior conviction requiring sex
offender registration or a prior conviction for a crime listed in section 667(e)(2)(c)(iv).
Section 459.5(b) does not allow for charging a violation of section 484(a) as an alternative charge to
section 459.5(a). Thus, a choice must be made. (But see this IPG memo, section I-3-C at pp.18-20
[discussing possibility this limitation is unconstitutional].) Assuming a theft has occurred, given the
choice between charging “shoplifting” and theft, it will always be better to charge a theft. This is
because it will always be easier to establish a theft in violation of Penal Code section 484(a) than a
“shoplifting” in violation of section 459.5 since there is no requirement in section 484(a) that the
prosecution prove an intent to steal upon entry into the store and there is no difference in the
punishment that may be imposed between the two crimes. The misdemeanor punishment language
in section 459.5 states it “shall be punished as a misdemeanor” unless the defendant has prior
convictions requiring sex offender registration or prior convictions for crimes listed in Penal Code
24
section 667(e)(2)(C)(iv). That language means punishment for shoplifting as a misdemeanor carries
a maximum of six months in jail pursuant to Penal Code section 19, which provides that every
offense declared to be a misdemeanor is punishable by up to six months in jail unless a different
punishment is prescribed. Penal Code sections 484-488 (petty theft) similarly carries a maximum
jail sentence of six months.
Moreover, it cannot be assumed that if section 459.5 is charged, it will be possible to obtain a
conviction for section 484(a) as a lesser included offense because section 459.5 does not necessarily
include all the elements of theft – albeit if the prosecution proceeded using specific complaint
language alleging entry plus actual theft, then theft could arguably be a lesser included offense
under the accusatory pleading test. (See People v. Birks (1998) 19 Cal.4th 108, 117 [“A lesser
offense is necessarily included in a greater offense if either the statutory elements of the greater
offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser
offense, such that the greater cannot be committed without also committing the lesser”].)
Indeed, it is theoretically possible that the defense may insist that the defendant be charged with
“shoplifting” instead of “theft” (pursuant to section 459(b), which provides that “any act of
shoplifting as defined in subdivision (a) shall be charged as shoplifting”) since it is more difficult to
prove shoplifting than theft and the punishment for either crime is the same.
On the other hand, if the defendant has prior convictions requiring sex offender registration or
convictions for offense specified in Penal Code section 667(e)(2)(c)(iv), then, despite the greater
difficulty in proving a violation of section 459.5 as opposed to petty theft, the prosecutor may wish to
proceed on the section 459.5 charge because it can be punished as a felony instead of as a
misdemeanor. (See Pen. Code, 459.5(a).)
H. Will prosecutors ever want to charge a defendant with a violation of
section 459.5 instead of second degree burglary (i.e., when the
defendant has prior convictions requiring sex offender registration
or convictions for super strikes)?
Even if a defendant has prior convictions requiring sex offender registration or convictions for
offense specified in Penal Code section 667(e)(2)(c)(iv), it may not make sense to charge a defendant
with a violation of section459.5(a) as opposed to second degree burglary.
25
This is because “shoplifting” is harder to prove than second degree burglary. Unlike with second
degree burglary (which just requires entry with the intent to commit either petty or grand theft or
any other felony), the crime of shoplifting requires the prosecution to prove the structure entered is
a commercial establishment, was open during regular business hours, and that a petty theft occurred
or the intent upon entry was to commit petty theft. It will be very difficult to prove the dollar value
of what a shoplifter intended to steal (whether it was over or under $950), unless the shoplifter
actually steals something. Moreover, there is no difference in the penalty that can be imposed
between second degree burglary and shoplifting when the defendant has prior convictions requiring
sex offender registration or convictions for offense specified in Penal Code section 667(e)(2)(c)(iv).
Indeed, because it is more difficult to prove shoplifting than second degree burglary, defendants with
prior convictions that allow for enhanced felony punishment who commit the crime of “shoplifting”
may, in reliance upon subdivision (b) of section 459.5, insist upon being charged with section
459.5(a) instead of second degree burglary. It is also possible that the defense may insist that
“shoplifting” be charged instead of a second degree burglary where there is some dispute over the
actual value of the property.
If a prosecutor chooses to charge second degree burglary, the prosecutor must be prepared to
establish the value of the goods taken is over $950 and/or the store was entered after regular hours
lest the defense argue that charging the second degree burglary violates Penal Code section 459.5(b)
which states: “Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting.”
This is something that was unnecessary to do when prosecuting second degree burglaries before the
passage of Proposition 47.
I.
If a defendant has to register as a sex offender, but he does not have
a conviction for a crime listed in Health & Safety Code section
290(c), is the defendant eligible for felony punishment under
section 459.5?
Penal Code section 459.5(a), in pertinent part, states, “[s]hoplifting 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.” (Emphasis added by IPG.)
26
Thus, if the defendant is registering as a sex offender for a crime not listed in section 290(c) (i.e.,
because a court has found the defendant committed the offense as a result of sexual compulsion or
for purposes of sexual gratification pursuant to Penal Code section 290.006; or because of a juvenile
adjudication pursuant to Penal Code section 290.008) the defendant is not eligible for felony
punishment under section 459.5. (Contrast with Penal Code section 666(a) [applying enhanced
punishment “to any person who is required to register pursuant to the Sex Offender Registration
Act” –discussed in the IPG memo, section I-4-A at p. 37].)
J.
Does section 459.5 bar charging automobile burglaries or other
burglaries that do not fit the definition of “shoplifting”?
It does not appear that burglaries (including auto burglaries committed in violation of Penal Code
section 459) that do not constitute “shoplifting” are impacted at all by Proposition 47. By its own
terms, section 459.5 only applies to entering a commercial establishment with the “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).”
(Pen. Code, § 459.5(a).) Moreover, section 459.5 specifically states: “Any other entry into a
commercial establishment with intent to commit larceny is burglary.” (Pen. Code, § 459.5(a).)
In People v. Acosta (2015) 242 Cal.App.4th 521, the court rejected defendant’s argument that his
attempted auto burglary was covered by section 459.5: “Section 459.5 makes reference to no other
type of burglary, and it provides no reason to believe that burglary of a locked motor vehicle is now a
misdemeanor when the loss does not exceed $950.” (Id. at pp. 526-527; see also People v.
Gonzales (2015) 242 Cal.App.4th 35, 40-41 [rev. gtd, docket # S231171] [defendant’s entry into
bank to cash forged checks was just a burglary and section 1170.18 does not permit resentencing for
other theft offenses involving property under the threshold of $950 such as burglary].)
The issue of whether section 1170.18 impliedly includes any second degree burglary involving
property valued at $950 or less is pending before the California Supreme Court in People v.
Gonzales (2015) 242 Cal.App.4th 35 [rev. gtd, docket # S231171].
27
K.
Does entry into a commercial establishment with the intent to
commit a crime (e.g., cashing forged checks or identity theft) that
does not meet the technical definition of “larceny” constitute a
violation of section 459.5?
As noted above, the crime of “shoplifting” is defined as entering a commercial establishment with
intent to commit larceny while that establishment is open during regular business hours[.]” (Pen.
Code, § 459.5.) There is a dispute over whether section 459.5 applies when the crime intended to be
committed upon entry into a commercial establishment is passing a forged check or similar
“theftish” conduct. In particular, the cases are scattered regarding whether the intent to commit
larceny encompasses the intent to commit forgery, identity theft, or to pass a bad check.
Cases holding entry into commercial establishment with intent to pass a forged
check is not “shoplifting”
People v. Gonzales (2015) 242 Cal.App.4th 35 [rev. gtd, docket # S231171]
In Gonzales, the defendant entered a bank and cashed two forged checks totaling $250. The
checks were made payable to the defendant and had the forged signature of the defendant’s
grandmother. The defendant was convicted of commercial burglary in violation of Penal Code
section 459 by way of a guilty plea after the forgery charge was dismissed. (Id. at pp. 37-38.) After
Proposition 47 passed, the defendant petitioned to be resentenced as a misdemeanant, claiming his
offense qualified as “shoplifting” under section 459.5. The trial court denied the request and
defendant appealed. (Id. at pp. 37-38.)
Relying on the California Supreme Court case of People v. Williams (2013) 57 Cal.4th 776, the
Gonzalez court upheld the denial, pointing out that “‘larceny’ requires a “trespassory taking,”
which is a taking without the property owner’s consent” and, in the instant case, “the Bank of
America consented to transferring title and possession to $250 to” the defendant. (Id. at p. 39.)
That is, the defendant “used false representations that he was cashing valid checks made out to him
to obtain the money from Bank of America. Relying on those representations, which the bank must
have believed to be true, it consented to giving [the defendant] the money.” (Id. at pp. 39-40.) The
Gonzales court also rejected the argument that section 1170.18 allows for resentencing for other
theft offenses involving property under the threshold of $950 such as burglary even though burglary
is not specified in the statute. (Id. at p. 40.)
28
However, People v. Gonzales (2015) 242 Cal.App.4th 35 [rev. gtd, dkt # S231171]) has been taken
up for review by the California Supreme Court on the following issue: Was defendant entitled to
resentencing under Penal Code section 1170.18 on his conviction for second degree burglary either
on the ground that it met the definition of misdemeanor shoplifting (Pen. Code, § 459.5) or on the
ground that section 1170.18 impliedly includes any second degree burglary involving property valued
at $950 or less?”*
*Editor’s note: On the California Supreme Court website, there is a caveat regarding the description of
the identified issue: “The statement of the issues is intended simply to inform the public and the press of
the general subject matter of the case. The description set out above does not necessarily reflect the view
of the court, or define the specific issues that will be addressed by the court.” (See
http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2128068&doc_no=S231171
.)
See also People v. Bias (2016) 245 Cal.App.4th 302, 307-308 [rev. filed] [discussed in this IPG
memo, section I-3-L-i at p. 34], finding defendant convicted of second degree burglary based on
entering a bank and attempting to cash a check for under $950 drawn on the account of a real
company did not commit shoplifting because entry was with the intent to commit identity theft].)
Cases holding entry into commercial establishment with intent to commit forgery is
“shoplifting”
People v. Valencia (2016) 245 Cal.App.4th 730 [199 Cal.Rptr.3d 898] [rev. filed]
In Valencia, the defendant was charged with second degree burglary and forgery based on entering
an AT &T store and buying a prepaid phone for $249.74 with counterfeit $50 bills. After defendant
negotiated a plea to, and was convicted of, a charge of burglary, Proposition 47 passed. Defendant
sought a reduction of his conviction to misdemeanor shoplifting under section 459.5 but the trial
court denied his request on the ground that his conduct did not come within the common definition
of shoplifting, i.e., “[t]o steal (articles or an article) from a store that is open for business[.]” (Id. at
pp. 899-900.)
On appeal, the court held defendant was eligible for relief under section 1170.18. (Id. at p. 901.) The
court stated in light of Penal Code section 490.2’s directive that larceny should be considered theft,
section 459.5’s use of the term “larceny” in the definition of “shoplifting” demonstrated “an intent to
cover all forms of theft committed in a business during regular hours[.]” (Id. at pp. 900-901.)
Accordingly, the court held that “whether the theft would be considered shoplifting as that term is
commonly understood is irrelevant to the statutes application.” (Id. at p. 901.) The court stated that
29
the “[d]efendant had two types of criminal intent in the AT & T store, an intent to commit theft by
false pretenses and an intent to commit forgery” both of which fell within the scope of section 459.5:
“Since defendant stole less than $950, section 459.5 precludes using the theft to support a
prosecution for burglary. Forgery also cannot support a burglary prosecution following Proposition
47, as forgery involving $950 or less is now a misdemeanor.” (Id. at p. 901.)
People v. Vargas (2016) 243 Cal.App.4th 1416 [rev. gtd, dkt # S232673]
In People v. Vargas (2016) 243 Cal.App.4th 1416 [rev. gtd, dkt # S232673], the trial court denied
a defendant’s request to reduce her second degree burglary conviction to a misdemeanor where the
conviction was based on entry into a check cashing establishment with the intent to use a forged
check for $148. The trial court believed section 459.5 did not apply because the defendant “did not
to commit what the court commonly understood as shoplifting—the entry into a retail establishment
to steal displayed merchandise[.]” (Id. at pp. 1419-1420.) The appellate court disagreed with the
trial court, finding defendant’s entry into the check cashing establishment with the intent to commit
theft by false pretenses met the requirements of section 459.5 and qualified her for resentencing.
(Id. at p. 1420.)
The Vargas court rejected the People’s argument that section 459.5 is limited to the “common”
understanding of shoplifting (i.e., “the unauthorized entry into a retail establishment, while the
establishment is open during regular business hours, with the intent to steal openly-displayed
merchandise valuing not more than $950”). (Id. at p. 1420.) The Vargas court acknowledged that
a “lay person might understand ‘shoplifting’ to mean entering a retail store during regular business
hours with the intent to steal displayed merchandise,” but stated that is not how it is defined in
section 459.5: “it is entering a commercial establishment during business hours with the “intent to
commit larceny.” (Id. at p.1420.) The Vargas court was similarly not convinced that just because
use of the term “commercial establishment” in section 459.5 is more narrow in scope than the many
different types of structure identified in section 459 (including “any house, room, apartment,
tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel,” etc.),
that this meant the voters intended the term “commercial establishment” to be synonymous with
“retail establishment.” (Id. at p. 1424.) Lastly, the Vargas court rejected the People’s argument
that because section 459.5, in contrast to section 490.2 (which made certain theft offenses into petty
theft when “the value of the money, labor, real personal property taken” does not exceed $950)
makes no reference to money, labor, or real property, section 459.5 only applies when the theft is of
personal property (i.e., merchandise). The Vargas court rejected this argument, because, while
30
section 459.5 does not itself define the term “property,” nothing suggests voters intended to limit the
term to personal property. And, in any event, section 459.5 refers to the intent to commit larceny,
thereby incorporating the definition of “theft” in section 484(a), which in turn defines theft by false
pretenses as defrauding another person of “money, labor or real or personal property,” the nearly
identical language in section 490.2. (Id. at p. 1424.)
The Vargas court also rejected the People’s argument, based on People v. Gonzales (2015) 242
Cal.App.4th 35 [rev. gtd, docket # S231171] (discussed in this IPG memo, section I-3-K at p. 28-29),
that the “intent to commit larceny” element in section 459.5 cannot be satisfied by entering a
commercial establishment with the intent to commit theft by false pretenses. (Id. at p. 1420.) The
Vargas court concluded the phrase “intent to commit larceny” included the intent to commit theft
by false pretenses because “[l]arceny is statutorily equated with ‘theft’ (§ 490a), and ‘theft’ is defined
to include theft by false pretenses, that is, ‘knowingly and designedly, by any false or fraudulent
representation or pretense, defraud[ing] any other person of money, labor or real or personal
property.’ (§ 484, subd. (a).)” (Vargas at p. 1420.)
The Vargas court believed the Gonzalez court went astray by relying on People v. Williams
(2013) 57 Cal.4th 776, which held that only theft by larceny, not by false pretenses, can fulfill the
“felonious taking” requirement of robbery considering that the “felonious taking” element of
robbery must be without the consent of the property owner, and theft by false pretenses “involves
the consensual transfer of possession as well as title of property.” (Vargas at p. 1425.) However,
the Vargas court said “section 459.5 redefined certain second degree burglaries, and our high court
has held ‘[a]n intent to commit theft by a false pretense or a false promise without the intent to
perform will support a burglary conviction.’” (Id. at p. 1420 citing to People v. Parson (2008) 44
Cal.4th 332, 354.) Because Proposition 47 used the “phrase ‘intent to commit larceny’ in section
459.5, which mirrors the intent element in the general burglary statute (§ 459), and that phrase
includes theft by false pretenses,” the Vargas court believed “the voters intended section 459.5 to
include theft by false pretenses.” (Id. at p. 1427.) The Vargas court was also persuaded its
interpretation was consistent with the general intent behind Proposition 47 to focus spending on
violent and serious offenses and require misdemeanors instead of felonies for nonserious,
nonviolent crimes since the defendant’s conduct should unquestionably be viewed as a nonviolent
offense given the fact “Proposition 47 also reduced the offense of forgery involving less than $950
from a wobbler to a straight misdemeanor. (§ 473, subd. (b).)” (Ibid.)
31
People v. Triplett (2016) 244 Cal.App.4th 824 [rev. filed]
In People v. Triplett (2016) 244 Cal.App.4th 824 [rev. filed], the appellate court agreed with
Vargas (see immediately above) that convictions for burglary based on entry into a bank with the
intent to pass a fraudulent check under $950 and entry into a liquor store with a similar intent both
qualified for reduction to misdemeanors because they would have been violations of section 459.5
had they been committed after the passage of Proposition 47. (Id. at pp. 832-834.)
The Triplett court rejected the People’s argument that because the defendant entered the
businesses to cash checks belonging to another person, the burglaries were based on felony identity
theft, not larceny, and thus did not qualify for reduction. (Id. at p. 833.) The Triplett court
reasoned that larceny is theft and theft is defined very broadly to include “knowingly and designedly,
by any false or fraudulent representation or pretense, defraud any other person of money” - which
would encompass fraudulent presentation of a check belonging to someone else to obtain money.
(Ibid.) A similar argument made by the People that defendant’s intent in both burglaries was to
commit forgery, not larceny, was rejected for the same reason. (Ibid.)
The Triplett court adopted very similar reasoning to the court in People v. Vargas (2016) 243
Cal.App.4th 1416 [rev. gtd, dkt # S232673] in support of its conclusion, finding that the court in
People v. Gonzales (2015) 242 Cal.App.4th 35, 40-41 [rev. gtd, docket # S231171] went astray by
relying on what “larceny” means in the context of robbery cases instead of what it means in burglary
cases. (Triplett at p. 833.) It also noted Penal Code section 490a replaced statutory references to
“larceny” with “theft” and while section 490a has no application to robbery, it does apply to burglary
and to shoplifting. (Id. at p. 833.)
People v. Root (2016) 245 Cal.App.4th 353 [rev. filed]
In Root, the appellate court relied on very similar reasoning to that used in People v. Vargas
(2016) 243 Cal.App.4th 1416 [rev. gtd, dkt # S232673] (see this IPG outline, section I-3- K at pp. 3031) in support of its conclusion that a defendant who was convicted of burglary based on entering
banks, during regular business hours, for the purpose of cashing forged checks in amounts less than
$950 was entitled to a reduction of his convictions to “shoplifting” as defined in Penal Code section
459.5. (Id. at pp. 358-359.) The Root court held that the “intention to commit larceny”
requirement of section 459.5 could “be satisfied by the broader sense of an intent to commit theft”
which includes theft by false pretenses. Thus, passing a forged check constituted theft by false
pretenses. (Id. at p. 360.) Based on the plain text of section 459.5, the Root court rejected the
32
argument, “shoplifting” was restricted in its application to stealing goods or merchandise openly
displayed in retail stores. (Id. at pp. 359-360 [and also noting, its conclusion was consistent with
the intent of Proposition 47 to require misdemeanors instead of felonies for nonserious, nonviolent
crimes such as petty theft by false pretenses].) The Root court’s conclusion appeared to rest, in
part, however, on the fact that the information charged the defendant with entry with “intent to
commit theft,” not forgery and that the charge was obviously based upon the theory that presenting a
false document to the bank to obtain money was also theft by false pretenses. The Root court did
not opine on whether entry with the intent to commit forgery would similarly qualify. (Id. at p.
360.)
*Editor’s note: Although it is unlikely the voters (or even the proponents) actually believed “shoplifting”
would include entry into a bank to cash a forged check, the statutory language itself favors the
interpretation of section 459.5 adopted by the Vargas court rather than the Gonzalez court. On the
other hand, courts have not clearly addressed the real issue when it comes to entries into commercial
establishments when multiple crimes are contemplated and/or committed. Section 459(b) 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.” Read literally, this
means that if the defendant has an intent to commit theft of property or takes property not exceeding
$950 in value, shoplifting must be charged. And if shoplifting is charged, defendant may not be charged
with burglary or theft of the same property. This would not preclude someone being charged with a
different crime like forgery or identity theft that is not burglary or theft. The question then becomes
whether the different crime is itself subject to Proposition 47. Forgery is (as indicated in People v.
Valencia (2016) 245 Cal.App.4th 730 [rev. filed] – see this IPG memo, section I-3-K at pp. 29-30) and
identity theft is not (as indicated in People v. Bias (2016) 245 Cal.App.4th 302 [rev. filed] – see this IPG
memo, section I-3-L-i at p. 34). The language in 459(b) would also not likely preclude someone from
being charged with burglary based on an intent to commit a crime other than theft, depending on whether
the term “of the same property” as used in section 459.5(b) modifies both burglary and theft. Technically,
you cannot have burglary of the property that is taken, but if the intent was to solely to prevent alternate
charging of burglaries based on entry with the intent to commit theft of the same property that is the
subject of the shoplifting charge, then a burglary based on entry with the intent to commit a felony (such
as forgery) could be charged and would fall outside the scope of section 459.5(b) regardless of whether the
item obtained as a result of the forgery is under $950.
33
L.
i.
Does entry into a commercial establishment with the intent to
commit a felony other than theft constitute a violation of section
459.5?
Entry with the intent to commit identity theft
In People v. Bias (2016) 245 Cal.App.4th 302 [rev. filed], the court held that a defendant convicted
of second degree burglary based on entering a bank and attempting to cash a falsified check for
under $950 drawn on the account of a real company was not entitled to be resentenced pursuant to
section 1170.18. The Bias court reasoned that defendant did not enter with the intent to commit
larceny but with the intent to make “unlawful use of personal identifying information of another
person.” The Bias court observed that the crime identity theft is committed by using a company’s
personal identifying information when cashing stolen checks where the information on the check
included the “name, address, telephone number, checking account and unique electronic data for
addresses or routing codes” for the company. (Id. at pp. 304-308.)
The Bias court rejected defendant’s argument that since identity theft was not charged and the only
other offense he had been charged with was forgery (which is subject to reduction under Proposition
47), the court could not find he entered with the intent to commit identity theft. The Bias court
said “the People were not required to separately charge the felony of identity theft that defendant
entered with intent to commit because burglary is complete upon entry with the requisite criminal
intent” and “[t]he record of defendant's conviction, including the preliminary hearing transcript,
show[ed] that defendant entered the bank with the intent to commit identity theft.” (Id. at p. 308.)
The defendant in Bias argued that any conduct that fits within the definition of shoplifting under
section 459.5 must be charged as shoplifting pursuant to Penal Code section 459.5(b). But the Bias
court held “[t]he act of entering a bank with the intent to commit identity theft is not the act
identified in section 459.5, subdivision (a), i.e., entry with intent to commit petty theft.” (Id. at
p.308; compare and contrast People v. Triplett (2016) 244 Cal.App.4th 824, 832-834 [rev. filed]
[convictions for burglary based on entry into a bank with the intent to pass a fraudulent check under
$950 and entry into a liquor store with a similar intent both qualified as violations of section 459.5
had they been committed after the passage of Proposition 47 –discussed in greater depth in this IPG
outline, section I-3-K at p. 32].) (Id. at pp. 832-834.)
34
*Editor’s note: Courts grappling with the issue of the necessary intent to fit entry into an establishment
under the umbrella of “shoplifting” have not satisfactorily resolved whether entry into a commercial
establishment with multiple intents, some of which constitute larceny and others which do not, constitute
shoplifting.
ii. Entry with the intent to commit perjury
In People v. Chen (2016) 245 Cal.App.4th 322 [rev. filed], a defendant who entered a Department
of Motor Vehicles building with the intent to commit the felony of perjury was convicted of entering
the Department of Motor Vehicles, “a commercial building,” with the intent “to commit larceny and
any felony” and perjury. (Id. at p. 324.) The perjury charge was dismissed and defendant pled guilty
to second degree burglary. Later, the defendant sought to have his conviction reduced to a
misdemeanor under the theory that he would only have been guilty of shoplifting as defined in Penal
Code section 459.5. The appellate court rejected defendant’s argument, finding that the “larceny”
language in the complaint “plainly was superfluous” and that based on pleadings and record of
conviction, defendant was clearly convicted of felony second degree burglary based on the entry into
a building with the intent to commit the felony of perjury. The court held burglary based on entry to
commit perjury was not within the scope of section 459.5. (Id. at p. 327.)
M. Kathy Storton’s Penal Code section 459.5 chart
Value of Property is $950 or Less & Defendant Has No Specified Prior:
A misdemeanor violation of PC § 459.5 is chargeable, but PC § 484-488 petty theft is easier to prove and
carries the same maximum 6-month jail punishment. With new PC § 459.5, entry with the intent to commit
larceny must be proved, but there is no such requirement for PC § 484-488. As long as PC § 459.5 is not
charged, theft can be charged.
Value of Property is $950 or Less & Defendant Has a Specified Prior:
A felony violation of P.C. 459.5 is chargeable.
Value of Property is Over $950, Regardless of Priors:
By definition, the crime is not shoplifting since the value is greater than $950. Possible charges include felony
grand theft (PC § 487(a)), felony burglary (PC § 459-460(b): 2nd degree burglary)), etc.
35
4.
The slowly disappearing punishment for, and crime of, “petty
with a prior” (Penal Code § 484/666)
Up until September of 2010, a violation of Penal Code section 484/666 was a wobbler. A defendant
who committed a petty theft (theft of property under $400) was subject to felony punishment (16-23 years in state prison) if the defendant had previously been convicted of any of several designated
theft-related crimes and served a day in jail on the prior theft conviction.
In 2010, the legislature changed section 666 so that in order for a defendant to be eligible for felony
punishment in state prison for committing a new theft, the defendant had to have previously been
convicted three times of any of several theft-related crimes – except if the defendant was required
to register as a sex offender or had a prior violent or serious felony conviction – in which case only
one prior theft-related conviction was required. They also expanded what constituted a petty theft
to theft of property up to $950. (See A.B. 1844.)
In 2011, as part of Realignment, the legislature eliminated possible punishment in state prison (and
substituted a Penal Code section 1170(h) sentence) for commission of a theft by a defendant with
three or more theft-related convictions – except if the defendant to register as a sex offender or had a
prior violent or serious felony conviction – in which case only one prior theft-related conviction was
required and a state prison sentence could still be imposed. (See A.B. 117.)
In 2013, the legislature added “elder theft” (violations of Penal Code section 368(d) and (e)) to the
list of “prior crimes” that could count as an elevating prior conviction. (See S.B. 543.)
In 2014, with the passage of Proposition 47, the only defendants who are eligible for felony
punishment for commission of a theft under $950 are those defendants with certain designated
theft-related prior convictions who are required to register as sex offenders, those who have a super
strike (i.e., a felony conviction as defined in Penal Code section 667(e)(2)(C)(iv)), or those who have
a conviction for elder theft (i.e., a violation of Penal Code section 368(d) or (e)). Thus, no matter
how many times they commit petty theft, “[f]or most persons, the crime of petty theft with a
prior, for which the punishment is imprisonment in the county jail not exceeding one year or in the
state prison, is eliminated.” (People v. Diaz (2015) 238 Cal.App.4th 1323, 1330, emphasis
added.)
36
A.
Current statutory language of Penal Code section 666
Penal Code section 666 (as amended by Proposition 47) provides:
(a) Notwithstanding Section 490, any person described in subdivision (b) who, having been
convicted of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368,
auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony
violation of Section 496, and having served a term of imprisonment therefor in any penal institution
or having been imprisoned therein as a condition of probation for that offense, and who is
subsequently convicted of petty theft, is punishable by imprisonment in the county jail not exceeding
one year, or in the state prison.
(b) Subdivision (a) shall apply to any person who is required to register pursuant to the Sex Offender
Registration Act, or who has a prior violent or serious felony conviction, as specified in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667, or has a conviction pursuant to
subdivision (d) or (e) of Section 368.
(c) This section shall not be construed to preclude prosecution or punishment pursuant to
subdivisions (b) to (i), inclusive, of Section 667, or Section 1170.12.” (Emphasis added by IPG.)
*Editor’s note: For a list of the offenses specified in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 (aka “super strikes”) and listed in Penal Code section 290(c), see this IPG
memo , section III-5-B at pp. 119-121.
B.
If a defendant with a disqualifying prior conviction commits a new
theft, how many prior theft-related convictions does the defendant
have to have in order for the defendant to be potentially eligible for
state prison?
A defendant with a prior conviction for a super strike, elder theft, or an offense with sex offender
registration imposed only has to have one theft-related prior conviction in order to be eligible for
commitment to state prison. (See People v. Diaz (2015) 238 Cal.App.4th 1323, 1330; Pen. Code, §
666(a).)
37
DDA Kathy Storton observation: If such a defendant is convicted of a felony petty with a prior, he or
she must either be sentenced to state prison or to county jail as a condition of probation – the defendant is
not eligible for a section 1170(h) sentence. However, with the exception of convictions for elder fraud, the
same disqualifying prior convictions that allow for a felony conviction of section 484/666 would, in any
event, disqualify the defendant from eligibility for any section 1170(h) sentence – regardless of whether the
new crime is a theft or some other felony.
*Editor’s note: Unlike many of the other sections added or modified by Proposition 47, a prior conviction
for elder fraud (Pen. Code, § 368(d) & (e)) can allow for an enhanced sentence under section 666(a). Thus,
a defendant with a single prior misdemeanor or felony conviction for violating section 368(d) or (e) for
which a term of imprisonment was served, is chargeable with a violation of section 666 as a felony or a
misdemeanor.
C. May a defendant who must register as a sex offender have his sentence
enhanced to a felony for one of the theft-related crimes designated in
section 666(a) even if the defendant does not have a conviction for a
crime listed in Penal Code section 290(c)?
A defendant who has been required to register as a sex offender pursuant to Penal Code sections
290.006 (which allows a court to order registration for “any offense not included specifically in
subdivision (c) of Section 290 . . . if the court finds at the time of conviction or sentencing that the
person committed the offense as a result of sexual compulsion or for purposes of sexual
gratification”) or 290.008 (which requires registration following juvenile adjudications) may have
his sentence enhanced to a felony for one of the theft-related crimes designated in section 666(a).
This is because, unlike the language in many of the sections enacted or modified by Proposition 47,
the language in section 666(b) provides that section 666(a) applies to “any person who is required to
register pursuant to the Sex Offender Registration Act . . .” and that Act includes Penal Code sections
290 to 290.024 (e.g., sections 290.006 and 290.008). (Pen. Code, § 290(a).)
D.
Does Proposition 47 impact violations of Penal Code section 666.5?
Penal Code section 666.5(a) makes it a straight felony and allows punishment pursuant to section
1170(h) for 2, 3, or 4 years, if a defendant with a prior conviction for a felony violation of Vehicle
Code section 10851, a felony grand theft involving an automobile in violation of Vehicle Code section
38
487(d), a felony grand theft involving a motor vehicle, trailer, special construction equipment, or
vessel, or a felony violation of Section 496d commits a new violation of one of those sections.
Proposition 47 did not make any changes to Penal Code section 666.5. However, the enactment of
Penal Code section 490.2 might indirectly permit resentencing of a section 666.5-enhanced section
10851 conviction when a defendant has had the section 10851 charge itself reduced to a
misdemeanor and/or impact the ability of prosecutors to charge violations of section 666.5 in the
future if the item taken involves an automobile or other vehicle worth $950 or less. (See People v.
Ortiz (2016) 243 Cal.App.4th 854, 861 [rev. gtd, dkt # S232344] [“Proposition 47 says nothing
about Penal Code section 666.5. But Penal Code section 666.5 creates a sentence enhancement only
where the current offense is also a felony violation. Section 490.2, by reducing petty theft of a
vehicle to a misdemeanor, removes such misdemeanants from the ambit of Penal Code section
666.5.”]; see also this IPG memo, section III-5-I at pp. 58-66.
E.
Kathy Storton’s Penal Code section 666 chart
Defendant Has a Specified Theft Prior For Which a Term of Imprisonment
was Served And a Superstrike, or Must Register as a Sex Offender or Has a
Misdemeanor or Felony Prior for PC § 368(d) or (e):
A felony or misdemeanor violation of PC § 666 is chargeable.
Defendant Has One Misdemeanor or Felony Prior for PC § 368(d) or (e) and Served a
Term of Imprisonment:
A felony or misdemeanor violation of PC § 666 is chargeable
5.
The new definition of grand theft: Penal Code section 490.2
Proposition 47 redefined “grand theft” for all defendants except those defendants who have
convictions for registerable sex offenses or crimes listed in Penal Code section 667(e)(2)(C)(iv) (i.e.,
“superstrikes”).
Proposition 47 did not change the language of Penal Code section 487, which defines what
constitutes “grand theft” for a variety of crimes. Nor did it alter Penal Code section 489 (which
defines the punishment for grand theft) or section 490 (which defines the punishment for petty
theft). However, it added a new section that imposes a $950 threshold for crimes defined as grand
39
theft that currently have no threshold (or a lesser threshold) if the theft is committed by defendants
without convictions for registerable sex offenses or super strikes. The section created by
Proposition 47 is: Penal Code section 490.2. Under section 490.2, without the $950 threshold being
met, crimes defined as “grand theft” will likely be considered petty theft.
As indicated above, while the distinction between petty theft and grand theft is ordinarily drawn at
the $950 threshold, there are a variety of crimes defined as “grand theft” which do not take into
consideration the value of the property stolen at all (see e.g., Pen. Code, §§ 487(c) [grand theft
person]; 487(d)(1) [grand theft automobile]; 487(d)(2) [grand theft firearm]; 487a [grand theft of
specified animals]; 484e [grand theft involving access cards]; or which have a lower than $950
threshold (see e.g., Pen. Code, §§ 487(b)(1) & (b)(2) [farm crop or animal/fish thefts had a $250
threshold]; 487b [conversion by severance of real property had a $250 threshold]; 487i [defrauding
a housing program had a $400 threshold]). Section 490.2 likely impacts these crimes.
A.
The statutory language of Penal Code section 490.2
The statutory language of Penal Code section 490.2 is as follows:
“(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.” (Emphasis added by IPG.)
*Editor’s note: For a list of the offenses specified in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 (aka “super strikes”) and listed in Penal Code section 290(c), see this IPG
memo, section III-5-B at pp. 119-121.
40
B.
What is the punishment for grand theft when the value of the money,
labor, real or personal property taken does not exceed $950?
Because Penal Code section 490.2 says “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” and does not provide for a
particular range of jail sentence, the punishment for grand theft in the above circumstances is the
same as the punishment prescribed for petty theft in Penal Code section 490, which limits
punishment to six months in jail and/or by a fine of up to $1,000. This is consistent with Penal Code
section 19, which provides that except in cases where a different punishment is prescribed, every
offense declared to be a misdemeanor is punishable by up to six months in jail and/or by a fine of up
to $1,000.”
*Editor’s note: The People have the burden of proving the value of the property in order to obtain a
felony conviction for grand theft in any new prosecution. However, when a defendant is seeking to have a
prior felony conviction for grand theft reduced to a misdemeanor conviction pursuant to section 1170.18,
the burden is on the defendant to show the property was under $950. (See this IPG memo, section IV-9
at p. 137.)
C.
Are all statutes that define “grand theft” subject to Penal Code section
490.2?
One issue that can arise in interpreting the scope of section 490.2 is that certain crimes defined as
“grand theft” (e.g., Penal Code section 484e) do not fit neatly into the definition of “theft” - at least as
that term is defined in Penal Code section 484(a); yet section 490.2 seems to implicitly incorporate
the definition of “theft” found in section 484(a).
Penal Code section 484(a) states: “Every person who shall feloniously steal, take, carry, lead, or drive
away the personal property of another, or who shall fraudulently appropriate property which has
been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent
representation or pretense, defraud any other person of money, labor or real or personal property, or
who causes or procures others to report falsely of his or her wealth or mercantile character and by
thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession
of money, or property or obtains the labor or service of another, is guilty of theft.”
41
Section 490.2 states “obtaining any property by theft where the value of the money, labor, real
or personal property taken does not exceed . . . $950 shall be considered petty theft . . .” Thus, it
should only apply where property has been obtained by “theft” (as that term is defined in section
Penal Code section 484(a)) is money, labor, or real or personal property, and where there has
actually been a “taking.” The elements of certain crimes that are self-defined as “theft” do not always
fall under the definition of “theft” as described in section 484(a) nor do they involve property that
has been taken. For example, Penal Code section 484e(d), which prohibits the acquisition or
retention of account information, identifies a crime described as grand theft but the crime may
arguably be committed without there being any taking of money, labor, or real or personal property.
(See this IPG memo, section I-5-F at p. 52.)
Accordingly, when the elements of a crime defined as “theft,” “petty theft,” or “grand theft” do not
actually correspond to the definition of “theft” or involve any actual “taking” of money, labor, or
property (to which some “value” may be attributed), section 490.2 may not be applicable. On the
other hand, section 490.2 may be interpreted as applying to any crime self-defined as “theft,” “petty
theft, or grand theft; and if, for example, information from an access card itself is viewed as being the
property that is the object of the “theft,” then the crime will always be petty theft since it is difficult
to establish the value of the information itself.
A pair of cases that may resolve the issue are currently pending before the California Supreme Court.
(See People v. Cuen (2015) 241 Cal.App.4th 1227 [rev. gtd, dkt # S231107] [discussed in this IPG
memo, section I-5-F at p. 52] and People v. Romanowski (2015) 242 Cal.App.4th 151 [rev. gtd,
dkt # S231405] [discussed in this IPG memo, section I-5-F at p. 54.)
D. What statutes make reference to “theft” and/or may potentially be
impacted by section 490.2?
Below is a list of many (if not all) the statutes that might be impacted by section 490.2. If the statute
is one that is the subject of a lot of litigation, we have given the statute its own special section.
Food and Agricultural Code section 21852: [defines taking cattle from owner and driving it off
its usual range without consent as grand theft]
*Editor’s note: The crime of violating section 21853 is no longer grand theft, but is petty theft if the
value of the items is under $950 unless the defendant has a conviction for a registerable sex offense or a
super strike – in which case the defendant may be punished as a felon pursuant to section 1170(h).
42
Penal Code section 67.5: [links the punishment for bribes given or offered to ministerial officers,
employees, or appointees to whether theft of whatever is offered as of the “bribe” would be petty
theft or grand theft. If the former, the crime of bribery is deemed a misdemeanor; if the latter, the
crime of bribery is deemed a felony punishable pursuant to section 1170(h)]
*Editor’s note: Section 490.2 allows felony punishment for defendants with prior convictions for
registerable sex offenses or super strikes but a petty theft committed by one of these defendants remains a
petty theft, so even defendants with super strikes or who are registrable sex offenders are probably only
eligible for misdemeanor punishment if they offer a bribe less than $950.
Penal Code section 186.22: [subdivision (a) of section 186.22 makes it unlawful to actively
participate in a criminal street gang with knowledge that its members engage in or have engaged in a
“pattern of criminal gang activity,” and willfully promote, further, or assist in any felonious criminal
conduct by members of that gang; subdivision (e) of section 186.22 defines what it means to engage
in a “pattern of criminal activity” as the commission of, attempted commission of, conspiracy to
commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of certain
predicate offenses, including “[g]rand theft, as defined in subdivision (a) or (c) of Section 487” and
“[g]rand theft of any firearm, vehicle, trailer, or vessel].)
*Editor’s note: Since section 490.2 provides that obtaining any property under $950 by theft shall be
considered petty theft notwithstanding section 487 or any other provision of law defining grand theft, an
argument can be made that the theft from the person of items under $950 in violation of section 487(c) or
theft of a firearm or vehicle in violation of section 487(d) can no longer constitute one of the predicate
offenses described in section 186.22(e)(9)&(10). A counter argument may be made, however, that section
490.2 has no impact – at least as to theft from the person in violation of subdivision (c) of section 487.
This is because, while section 490.2 determines how a person convicted of grand theft as defined in
section 487 must be treated, section 186.22 itself was not overridden by section 490.2 and section 186.22
specifies what constitutes a predicate offense for its own purposes, i.e., grand theft as defined in section
487(a) or (c).
Penal Code section 368(d)&(e) [theft-related elder abuse]
*Editor’s note: See this IPG memo, section I-5-K at p. 68.
43
Penal Code section 459-2nd [automobile and commercial burglaries]
*Editor’s note: For a discussion of whether burglaries not subject to Penal Code section 459.5 are
subject to Proposition 47, see this IPG memo, section I-5-E at pp. 50-51.
Penal Code section 463(b) [provides that if a person commits grand theft , “as defined in Section
487 or subdivision (a) of Section 487a” (other than theft of a firearm) during a state of emergency or
during a local emergency resulting from an earthquake, fire, flood, riot, or other natural or unnatural
disaster, the defendant is guilty of crime of “looting” which is wobbler; if the theft is of a firearm as
defined in section 487, the crime is only a felony with a 16-2-3 penalty]
*Editor’s note: This section may or may not be impacted. The crime defined in section 463(b) is not
“grand theft”; rather, the commission of the crime of grand theft is one element of the crime of “looting.”
An argument can be made that implicit in section 490.2 is that thefts morphed from grand theft into petty
theft by 490.2 are stand-alone crimes. After all, section 490.2 states “obtaining any property by theft
where the value of the . . . property taken does not exceed . . . $950 shall be considered petty theft and
shall be punished as a misdemeanor[.]” (Pen. Code, § 490.2.) On the other hand, if section 490.2 is
interpreted as simply standing for the proposition that any theft of a property under $950 is not grand
theft but is only petty theft, then there can be no crime of looting based on taking an automobile or firearm
or from a person when the property taken is less than $950 because looting requires a “grand theft” to
have occurred.
Penal Code section 484e(a): [defines selling, transferring or conveying an access card absent
consent of the card’s owner or issuer with the intent to defraud as grand theft]
*Editor’s note: As selling, transferring, or conveying an access card does not fit neatly into the definition
of “theft” as defined in Penal Code section 484(a) nor does that crime necessarily involve a “taking,” some
of the issues described in this IPG memo at section I-5-F at pp. 52-57 may arise.
Penal Code section 484e(b): [defines acquiring access cards of four or more persons within any
consecutive 12-month period, knowing they were obtained without the consent of the card’s owners
and with the intent to defraud as grand theft]
*Editor’s note: As section 484e(b) does not “does not fit neatly into the definition of “theft” as defined
in Penal Code section 484(a) nor does the crime necessarily involve a “taking,” some of the issues
described in this IPG memo at section I-5-F at pp. 52-57 may arise.
44
Penal Code section 484e(c): [defines acquiring or retaining access cards without the cardholder
or issuer’s consent with the intent to defraud and use, sell, or transfer the card to someone other
than the cardholder or issuer as petty theft]
*Editor’s note: As section 484e(c) is already a misdemeanor, section 490.2 should have no impact on
the average defendant accused of violation section 484e(c). However, if section 490.2 is viewed as
applicable to section 484(e) crimes, then the language in section 490.2 allowing for defendants with
convictions for registerable sex offenses or super strikes to receive felony punishment pursuant to Penal
Code section 1170(h) for petty theft may apply to raise the punishment for these defendants.
Penal Code section 484e(d) [defines acquiring or retaining possession of access card account
information with respect to an access card validly issued to another person, without the cardholder's
or issuer's consent, with the intent to use it fraudulently, as grand theft]
*Editor’s note: See this IPG memo, section I-5-F at pp. 52-57.
Penal Code section 484g provides: “Every person who, with the intent to defraud, (a) uses, for
the purpose of obtaining money, goods, services, or anything else of value, an access card or access
card account information that has been altered, obtained, or retained in violation of section 484e or
484f, or an access card which he or she knows is forged, expired, or revoked, or (b) obtains money,
goods, services, or anything else of value by representing without the consent of the cardholder that
he or she is the holder of an access card and the card has not in fact been issued, is guilty of theft. If
the value of all money, goods, services, and other things of value obtained in violation of this section
exceeds nine hundred fifty dollars ($950) in any consecutive six-month period, then the same shall
constitute grand theft.”
In People v. Grayson (2015) 241 Cal.App.4th 454 [rev. gtd, docket # S23175] the court drew a
contrast between section 484e and 484g and by doing so, the court intimated that section 484(g)
would be covered by Penal Code section 490.2. One of the reasons the Grayson court held section
484e(d) was not subject to section 490.2 is because section 484e(d) does not require the defendant
to obtain any property whose value can be easily assessed and thus it would be difficult to draw a
distinction between grand and petty theft. In contrast, the Grayson court noted that one of the
elements of section 484(g) is that the defendant obtain “money, goods, services, or anything else of
value.” That is, the Grayson court suggested section 484g is the type of theft to which section
490.2 can easily be applied. (Id. at p. 459.) In People v. King (2015) 242 Cal.App.4th 1312 [rev.
gtd, dkt #S231888], the appellate court engaged in a similar analysis suggesting section 484g is
45
subject to section 490.2. (Id. at pp. 459-460.) However, the California Supreme Court has since
granted review in both Grayson (dkt # S23175) and King (dkt # S231888) and deferred further
action in both cases pending consideration and disposition of a related issue in People v.
Romanowski (2015) 242 Cal.App.4th 151 [rev. gtd, dkt # S231405] and People v. Cuen (2015)
241 Cal.App.4th 1227 [rev. gtd, dkt # S231107].
Penal Code section 484.1 [defines giving false information or verification regarding a persons’
true identity, ownership, or ability to sell pawned property in order to receive money or other
valuable consideration from a pawnbroker or secondhand dealer and then receiving money or other
valuable consideration from the pawnbroker or secondhand dealer as theft]
*Editor’s note: Although prior to Proposition 47, this section was punishable based on whether the
property was over or under $950, section 490.2 now arguably allows punishment as a felony if the
property is under $950 but the defendant has a conviction for a registerable sex offense or a super strike –
in which case the defendant may be punished as a felon pursuant to section 1170(h).
Penal Code section 487(a): [defines grand theft as occurring when “the money, labor, or real or
personal property taken is of a value exceeding . . . ($950) except as provided in subdivision (b)”]
*Editor’s note: Section 487(a) is not affected by the enactment of section 490.2- albeit language in
subdivision (a) indicating subdivision (b) also defines grand theft is no longer true in all circumstances
Penal Code section 487(b)(1) [defines grand theft as including the theft of any of the following
items with a wholesale value of over $250: domestic fowls, avocados, olives, citrus or deciduous
fruits, other fruits, vegetables, nuts, artichokes, or other farm crops]
*Editor’s note: The crime is no longer grand theft, but is petty theft (even if the value of items taken is over
$250) if the value of items is $950 or less unless the defendant has a conviction for a registerable sex offense or
a super strike – in which case the defendant may be punished as a felon pursuant to section 1170(h).
Penal Code section 487(b)(2) [defines grand theft as including the theft of any of the following
items with a value over $250 [fish, shellfish, mollusks, crustaceans, kelp, algae, or other aquacultural
products taken from a commercial or research operation]
*Editor’s note: The crime is no longer grand theft, but is petty theft (even if the value of items taken is over
$250) if the value of the items is under $950 unless the defendant has a conviction for a registerable sex
offense or a super strike – in which case the defendant may be punished as a felon pursuant to section 1170(h).
46
Penal Code section 487(b)(3) [defines grand theft as including the theft of “money, labor, or real
or personal property” taken by a servant, agent, or employee from his or her principal or employer
which aggregates to $950 or more in any 12 consecutive month period]
*Editor’s note: This crime should not be impacted by Proposition 47.
Penal Code section 487(c) [defines grand theft as including theft from the person of another]
*Editor’s note: See this IPG memo, section 5-G at p. 57.
Penal Code section 487(d)(1) [defines grand theft as including theft of an automobile]
*Editor’s note: See this IPG memo, section 5-H at p. 58.
Penal Code section 487(d)(2) [defines grand theft as including theft of an firearm]
*Editor’s note: See this IPG memo, section 5-J at p. 66.
Penal Code section 487a [defines grand theft to include the theft of various animals, including
horses, cows, sheep, and pigs – without referencing the value of the animal]
*Editor’s note: Notwithstanding Penal Code section 489(b), which states the crime of violating section 487a
is punishable as a wobbler, a violation of section 487a is no longer grand theft, but is petty theft if the value of
items taken is under $950 unless the defendant has a conviction for a registerable sex offense or a super strike –
in which case the defendant may be punished as a felon pursuant to section 1170(h).
Penal Code section 487b & 487c [section 487b defines grand theft to include the conversion of
real estate of the value of $250 or more into personal property by severance from the realty of
another and, with felonious intent, steals, takes, and carries away that property; section 487c defines
petty theft in the same way when the value of the property is under $250]
*Editor’s note: The crime of violating section 487b is no longer grand theft, but is petty theft (even if the
value of the items taken is over $250) if the value of the items is under $950 unless the defendant has a
conviction for a registerable sex offense or a super strike – in which case the defendant may be punished as a
felon pursuant to section 1170(h). If section 487c is viewed as subject to section 490.2, alternative felony
punishment for a violation of section 487c if committed by a defendant with a conviction for a registerable sex
offense or a super strike may be allowed.
47
Penal Code section 487d [defines grand theft as including the theft of gold dust, amalgam, or
quicksilver from a mining claim]
*Editor’s note: The crime of violating section 487d is no longer grand theft, but is petty if the value of the
metals taken is under $950 unless the defendant has a conviction for a registerable sex offense or a super strike
– in which case the defendant may be punished as a felon pursuant to section 1170(h).
Penal Code section 487g [makes it a “public offense” to steal or maliciously take or carry away
any animal of another for purposes of sale, medical research, slaughter, or other commercial use, or
to knowingly, by any false representation or pretense, defraud another person of any animal for
purposes of sale, medical research, slaughter, or other commercial use]
*Editor’s note: Section 487g does not state the crime identified in section 487g constitutes theft. It does
use the term “steal” however, and it appears that most violations of the crime would be theft as theft is
defined under Penal Code section 484(a). If the application of section 490.2 turns on whether the crime is
self-defined as “theft,” then arguably section 490.2 does not apply to violations of section 487g. If the
application of section 49o.2 turns on whether the crime is substantively “theft” as defined in section
484(a), then section 490.2 would apply. One other possibility: section 490.2 applies under either
circumstance. In any event, if section 490.2 does apply, then defendants convicted of violating section
487g by taking an animal worth less than $950 will not be subject to felony punishment (or a sentence to
state prison) unless the defendant has a conviction for a registerable sex offense or a super strike – in
which case the defendant may be punished by a term in state prison (note: section 1170(h) does not apply
to section 487g).
Penal Code section 487i [defines defrauding housing program of a public housing authority of
more than $400 as grand theft]
*Editor’s note: Pursuant to section 490.2, if the housing program is defrauded of less than $950, the
crime of violating section 487i must be considered “petty theft” punishable only as a misdemeanor unless
the defendant has a conviction for a registerable sex offense or a super strike – in which case the
defendant may be punished as a felon pursuant to section 1170(h).
Penal Code section 487j [makes it grand theft if a person steals copper wire, cable, tubing or
piping exceeding a value of $950]
*Editor’s note: Because an element of the crime itself is that the copper be valued at more than $950,
section 490.2 should have no impact on section 487j even if the defendant has a conviction for a
registerable sex offense or a super strike.
48
Penal Code section 489(a) [states grand theft involving a firearm is punishable in state prison]
*Editor’s note: Section 490.2 overrides this statute insofar as theft of firearms under $950 are
concerned unless the defendant has a conviction for a registerable sex offense or a super strike. See this
IPG memo, section 5-J at p. 66.
Penal Code section 489(b) [see this IPG memo, section I-5-D at p. 46 – discussing Penal Code
section 487a]
Penal Code section 489(c) [states that other than grand thefts involving firearms or violations of
section 487a, grand theft is a wobbler punishable pursuant to section 1170(h)]
*Editor’s note: Section 490.2 overrides this statute insofar as theft of a firearm less than $950 is
concerned unless the defendant has a conviction for a registerable sex offense or a super strike.
Penal Code section 496c [defines theft to include copying, transcribing, photographing, or
making a record of private information relating to real property titles (or inducing another to do so)
without the consent of the owner for certain designated purposes as theft and states that the value of
the private information is determined by the cost of acquiring and compiling it.]
*Editor’s note: The crime of violating section 496c is not impacted in most circumstances by section
490.2. However, if the defendant has a conviction for a registerable sex offense or a super strike and
section 496c is viewed as obtaining any property by theft, section 490.2 potentially allows for alternative
felony punishment for a violation of section 496c.
Penal Code section 642 [states that if a person removes, keeps possession of, and appropriates
for his own use articles of value from a dead human body, and the theft of articles would have been
petty theft, then the violation of section 642 is misdemeanor but if the theft of the articles would be
would have been grand theft, the violation of section 642 is a felony]
*Editor’s note: Since section 490.2 indirectly controls the punishment for section 642, it defines when
the taking of articles constitutes petty theft or grand theft. Appropriating property from a dead body is
consequently a misdemeanor if the property taken is $950 or less. Even if that property is taken by a
defendant with a conviction for a registerable sex offense or a super strike, the crime of taking property
worth $950 or less from a dead body is still a misdemeanor, since section 490.2 only states that a
defendant with the requisite priors may be punished pursuant to section 1170(h); it does convert a petty
theft into a grand theft – which would be required in order to punish a violation of section 642 as a felony.
49
Penal Code section 653f [makes it a wobbler, punishable to solicit another to commit or join in
the commission of, among other crimes, grand theft]
*Editor’s note: Penal Code section 490.2 only potentially impacts section 653f insofar as it would
preclude prosecution for violations of section 653f (that previously could be prosecuted as felonies) when
the grand theft is based on taking of property from the person, the taking firearms or automobiles valued at
$950 or less, or other grand thefts not previously subject to the $950 cut-off. This is because section 490.2
requires that the obtaining of any property not exceeding $950 must be considered “petty theft.” It
probably does not impact it all since solicitation is a different crime than theft even if the crime being
solicited is theft. (Cf., People v. Segura (2015) 239 Cal.App.4th 1282, 1284 [Proposition 47 does not
apply when the crime charged is conspiracy in violation of Penal Code section 182 even though the crime
that is the target of the conspiracy is one of the crimes subject to reduction to a misdemeanor under
Proposition 47.].)
Penal Code section 666.5: [increases the penalty for second violation of vehicle-theft related
crimes]
*Editor’s note: See this IPG memo, section I-4-D at p. 38.
Vehicle Code section 10851: [makes it unlawful to drive or take a vehicle with intent to
temporarily or permanently deprive]
*Editor’s note: See this IPG memo, section I- 5-I at pp. 58-66.
Welfare and Institutions Code section 15656 [among other things, authorizes misdemeanor
punishment of up to a year in county jail for caretakers of elder or dependent adults who violate an
law prescribing theft or embezzlement when the money, labor, or personal property take is of a value
not exceeding $950]
*Editor’s note: If the caretaker has a prior conviction for a registerable sex offense or a super strike, section
490.2(a) arguably would allow for felony punishment pursuant to section 1170(h).
E.
Does section 490.2 cover burglaries in violation of Penal Code section
459 where the property taken during the burglary is less than $950?
The charging of auto burglaries (of vehicles worth under $950) as felonies should not be barred by
Penal Code section 490.2. Section 490.2 by its own terms, only applies to “obtaining any property
by theft where the value of the money, labor, real or personal property taken does not exceed nine
50
hundred fifty dollars ($950)[.]” (Pen. Code, § 490.2(a).) Whereas the burglary of a motor vehicle is
committed by entry into “vehicle as defined by the Vehicle Code, when the doors are locked ... with
intent to commit grand or petit larceny.” (Pen. Code, § 459.)
In People v. Acosta (2015) 242 Cal.App.4th 521, the court rejected defendant’s effort to bring
attempted car burglary in violation of Penal Code section 459 within the purview of Penal Code
section 490.2. The Acosta court pointed out that burglary of a motor vehicle is not a form of theft,
as theft is not an element of the offense. As opposed to the crime of theft, “the crime of burglary can
be committed without an actual taking[.]” (Id. at p. 526.)
The defendant in Acosta also argued that even if section 490.2 did not cover car burglaries
involving property under $950, there is no justification to punish a defendant who actually steals a
car worth less than $950 less severely than someone who merely enters a car worth less than $950
with the intent to steal. The defendant claimed “the Equal Protection Clause of the Eighth
Amendment to the United States Constitution requires that he receive the same treatment as a
defendant convicted of grand theft of an automobile, which is a misdemeanor under section 490.2
unless the value of the property taken exceeds $950.” (Id. at p. 527.) Moreover, the defendant
claimed this disparate treatment must be justified under the strict scrutiny standard, rather than
under the more lenient rational basis test. (Ibid.) However, the Acosta court held the strict
scrutiny standard does not apply “to the purported disparity under Proposition 47 between the
potential for felony punishment for his offense and the misdemeanor treatment of vehicle theft
involving a loss that does not exceed $950” because a defendant “does not have a fundamental
interest in a specific term of imprisonment or in the designation a particular crime receives.” (Ibid.)
And, under the applicable rational basis test, defendant’s equal protection claim failed because “the
Legislature is afforded considerable latitude in defining and setting the consequences of criminal
offenses.
(Ibid.)
The Acosta court observed that “the electorate could rationally extend
misdemeanor punishment to some nonviolent offenses but not to others, as a means of testing
whether Proposition 47 has a positive or negative impact on the criminal justice system.” (Id. at p.
528.) A state does not have to “choose between attacking every aspect of a problem or not attacking
the problem at all.” (Ibid.) It may choose to proceed “in an incremental and uneven manner
without necessarily engaging in arbitrary and unlawful discrimination.” (Ibid.) Moreover, “as a
practical matter, defendant’s argument assumes an unlikely disparity in treatment. The electorate
could rationally expect there will be an insignificant number of vehicle thefts involving a loss not
exceeding $950, considering the present day value of vehicles. It is therefore probable that after
51
Proposition 47 most prosecutions for car burglary and vehicle theft will be subject to the same
felony/misdemeanor punishment. To the extent some number of vehicle thefts may be treated as
misdemeanors while car burglaries or attempted car burglaries are subject to felony punishment, the
electorate could rationally conclude that car burglary should be treated more harshly because entry
must be made into a locked vehicle, an element not required of vehicle theft. And finally, because
attempted car burglary is an alternate felony/misdemeanor, in cases involving a loss less than $950
the electorate could reasonably expect that prosecutorial discretion will often result in prosecution
as a misdemeanor rather than a felony. These reasons, individually and collectively, provide a
rational basis for treating attempted car burglary differently than vehicle theft.” (Ibid.)
F.
Does section 490.2 apply to acquiring or retaining access card in
violation of Penal Code section 484e(d)?
Penal Code section 484e(d) provides: “Every person who acquires or retains possession of access
card account information with respect to an access card validly issued to another person, without the
cardholder's or issuer's consent, with the intent to use it fraudulently, is guilty of grand theft.”
An argument can be made that section 490.2 does not apply to section 484e(d) because elements of
section 484e(d) do not fit the definition of “theft” envisioned by Proposition 47. However, cases are
split on the merits of this argument.
Cases finding section 484e(d) is not subject to section 490.2
In People v. Cuen (2015) 241 Cal.App.4th 1227 [rev. gtd, docket # S231107], the court ruled that
Proposition 47 did not apply to reduce the crime of violating Penal Code section 484e(d) to a straight
misdemeanor when the “theft” involves access card information. The Cuen court held that section
490.2 unambiguously applies only to thefts of “money, labor, real or personal property” and declined
to stretch the definition of personal property to include intangible access card information. The
court stated the “[t]heft of intangible access card account information presents a qualitatively
different personal violation than theft of more tangible items” and since section 484e(d) is the more
specific statute, and it describes grand theft without reference to value, it controls over the more
general provision of section 490.2 regarding whether it can be charged as a felony. (Id. at p. 1231.)
The court also noted that “the logical understanding of the interplay between the various statutes—
and the one that seems to give each statute its plain meaning and avoid the most pitfalls—is that
section 490.2 applies solely to crimes involving the theft of “money, labor, real or personal property”
52
with a value less than $950.” (Ibid.) The decision in Cuen was subsequently taken up for review by
the California Supreme Court. (See People v. Cuen, docket # S231107.)
In People v. Grayson (2015) 241 Cal.App.4th 454 [rev. gtd, docket # S231757], the court also
concluded that section 490.2 does not govern section 484e(d). It reasoned that while “section 490.2
purports to apply to all provisions defining grand theft, it mentions only section 487. Sections 490.2
and 487, subdivision (a) are similar in that they refer specifically to the value of the “money, labor, or
real or personal property” obtained by the theft. In other words, both statutes presume a loss to the
victim that can be quantified to assess whether the value of the money, labor or property taken
exceeds the $950 threshold. Section 484e(d) does not contemplate such a loss.” (Id. at pp. 458459.) Moreover, “the essence of a section 484e(d) violation is the acquisition or retention of access
card information with the intent to use it fraudulently.” (Id. at p. 460.) “By prohibiting the
acquisition or retention of that information, section 484e(d) ‘protect[s] innocent consumers from
the injury, expense and inconvenience arising from the fraudulent use of their access card account
information.’” (Id. at pp. 459-460.) “Section 490.2 does not incorporate the ‘acquisition’ or
‘retention’ language of section 484e(d)” and does not “refer specifically to section 484e(d) or any
part of the ‘“comprehensive statutory scheme which punishes a variety of fraudulent practices
involving access cards.”’” (Id. at p. 460.) Finally, defendants can point to “no authority suggesting
the electorate intended to value the risk of such injury at $950 or less or to otherwise undercut the
‘broad protection to innocent consumers’ afforded by section 484e(d).” (Ibid.) However, the
California Supreme Court granted review in Grayson (dkt # S231757) and deferred further action
pending consideration and disposition of a related issue in People v. Romanowski (2015) 242
Cal.App.4th 151 [rev. gtd, dkt # S231405] [see this IPG memo, section I-5-F at p. 54] and People v.
Cuen (2015) 241 Cal.App.4th 1227 [rev. gtd, dkt # S231107] [see this IPG memo, I-5-F at p. 52].
In People v. King (2015) 242 Cal.App.4th 1312 [rev. gtd, dkt # S231888] the appellate court
agreed with Cuen and Grayson that a conviction under section 484e(d) does not qualify for
resentencing as a misdemeanor. It utilized a similar rationale to the rationale identified in those
cases, noting that the value of defendant's acquisition or possession of account information is simply
not an element of the crime and that the “[d]efendant’s construction of section 484e(d) would
require the insertion of elements which do not presently exist: use or attempted use and value.” (Id.
at p. 1316.) The King court disagreed with the Romanowski court that the value of an access card
can be calculated by reference to its value on the black market (see this IPG memo, section I-5-F at
p. 54), finding “there is no language in sections 490.2 or 1170.18 that suggests an intent to set
53
punishment for violating section 484e, subdivision (d) according to the “street value” of credit cards
and account information.” (King at p. 1317.)
Cases finding section 490.2 does apply to section 484e(d)
In People v. Romanowski (2015) 242 Cal.App.4th 151 [rev. gtd, dkt # S231405], the court
disagreed with the holdings in Grayson and Cuen. (See this IPG memo, section I-5-F at pp. 5253.) The Romanowski court held there is “nothing in the statutes enacted or amended by
Proposition 47 or the voters’ intent behind the initiative to suggest theft of access card information
should be treated any differently than other theft offenses subject to reduction under Proposition
47[.]” (Id. at p. 154.) The court reasoned that “Penal Code section 490.2(a) redefines all grand theft
offenses as misdemeanors if they involve property valued at less than $950” and applies
“[n]otwithstanding Section 487 [(defining grand theft)] or any other provision of law defining grand
theft[.]” (Id. at p. 155.) “Section 484e, subdivision (d) defines acquiring or retaining possession of
access card information as grand theft.” (Id. at p. 156.) “[I]f grand theft involving property valued at
less than $950 is a misdemeanor, and acquiring or retaining possession of access card information is
defined as grand theft, then acquiring or retaining possession of access card information valued at
less than $950 is a misdemeanor. Thus, by its plain terms, section 490.2, subdivision (a) reduces a
violation of section 484e, subdivision (d) to a misdemeanor if it involves property valued at less than
$950.” (Ibid.) The Romanowski court also believed its interpretation was consistent with the
purpose of Proposition 47 (i.e., to “ensure that prison spending is focused on violent and serious
offenses, to maximize alternatives for nonserious, nonviolent crime”) because section 484e(d) “is
one such nonserious, nonviolent theft offense, and applying section 490.2, subdivision (a) to reduce
qualifying violations of section 484e, subdivision (d) certainly serves the purpose of reducing prison
spending on nonviolent offenders.” (Ibid.) The Romanowski court rejected the idea that section
490.2 is limited to—or even primarily focused on—grand thefts already defined by the value of the
property taken. Rather, the court believed section 490.2 eliminated grand thefts based on the type
of property involved. Grand theft, for purposes of section 490.2, is determined solely by reference to
the value of the property involved. (Id. at p. 157.) The court held this was true regardless of whether
the property is “information,” regardless of whether it is difficult to quantify the value of the
information, and regardless of whether the consumer-protection purpose behind section 484e(d)
would be undermined. (Id. at pp. 158-159.) The court stated that had the voters intended to exempt
grand theft under section 484e(d) from section 490.2(a), they would have done so expressly. (Id. at
p. 159.) Accordingly, the court held that controls is not whether the crime of acquiring or account
54
information tracks the definition of theft, but the fact that section 484e(d) is designated as grand
theft. (Id. at pp. 158-159.) Like Grayson and Cuen, Romanowski was taken up by the
California Supreme Court. (People v. Romanowski, docket # S231405.)
In People v. Thompson (2015) 243 Cal.App.4th 413 [rev. gtd, dkt # S232212], pursuant to a plea
agreement dismissing several counts, the defendant was convicted of one count of violating Penal
Code section 484e(d) based on using another person’s ATM card. After Proposition 47 passed, the
defendant unsuccessfully petitioned to have sentence recalled and reduced. The defendant appealed
the denial of his petition. The Thompson appellate court held defendant was entitled to be
resentenced because section 484e(d) had been reclassified as a misdemeanor under section 490.2(a).
(Id. at pp. 416-417.) The Thompson court identified several reasons why section 484e(d) is
subject to the mandate of section 490.2 that “obtaining any property by theft where the value does
not exceed $950 shall be punished as a misdemeanor.” (Id. at p. 418.) First, the plain language of
section 490.2(a) provides it applies, “[n]otwithstanding Section 487 or any other provision of law
defining grand theft[.]” (Ibid.) “The Legislature defined the acquisition and retention of access
card account information with an intent to defraud as ‘grand theft’ and because section 490.2(a)
“incorporates all ‘grand theft’ provisions, without reference to specific statutes, it applies to section
484e, subdivision (d).” (Id. at p. 422.) Second, to the extent there is any ambiguity surrounding
whether section 490.2 applies to section 484e(d), it should be resolved by reference to the purposes
behind Proposition 47, one of which is to “[r]equire misdemeanors instead of felonies for
nonserious, nonviolent crimes like petty theft” unless the value of the property taken exceeds $950.
(Ibid.) Third, language in the ballot pamphlet supports the conclusion that Proposition 47 was
intended to apply to all grand theft statutes, not only to those that were specifically value based. The
Legislative Analyst’s analysis stated: “A wobbler charge can occur if the crime involves the theft of
certain property (such as cars) or if the offender has previously committed certain theft-related
crimes. This measure would limit when theft of property of $950 or less can be charged as grand
theft. Specifically, such crimes would no longer be charged as grand theft solely because of the type
of property involved.” (Id. at pp. 420-421.) The Thompson court noted that even in Penal Code
section 487 itself, there are offenses that are classified as grand theft without any reference to the
value of the property taken, such as grand theft from the person (Pen. Code, § 487(c)), grand theft
auto (Pen. Code, § 487(d)(1)), and grand theft firearm (Pen. Code, § 487(d)(2)). (Id. at p. 420 [and
also noting there are five other grand theft provisions that are value based but not enumerated under
section 490.2, subdivision (a) (§§ 487b, 487e, 487h, 487i, and 487j)].) Fourth, the reasons given for
not applying section 484e(d) do not stand up to scrutiny. For example, the court in People v.
55
Cuen (2015) 241 Cal.App.4th 1227 [rev. gtd, docket # S231107 – see this IPG memo, section I-5-F
at p. 52) believed that section 490.2 should not govern section 484e(d) because “[t]heft of intangible
access card account information presents a qualitatively different personal violation than theft of
more tangible items.” (Thompson at pp. 418-419 citing to Cuen at p. 1231.) But, the Thompson
court found this alleged dichotomy between tangible and intangible property to be false since the
broad definition of “personal property” under Penal Code section 7 would include items like access
cards and access card account information. The access card itself is tangible personal property and
under the definition of personal property in Black’s law dictionary even intangible access card
account information falls within the definition of personal property. (Id. at p. 419.) The
Thompson court also found the Cuen court’s argument that a specific statutory provision (e.g.,
section 484e(d)) controls over a more general provision (e.g., section 490.2) (see this IPG memo,
section I-5-F at p. 52) to be wanting because that rule only applies when a later more general statute
does not expressly contradict the earlier statute or not applying the rule “is absolutely necessary in
order that all of the words of the later statute have any meaning at all.” (Id. at p. 419.) The
Thompson court believed both of those exceptions to the general rule applied to section 490.2,
which “explicitly sweeps all earlier grand theft provisions into its application by reclassifying them as
petty theft unless the value of the property taken exceeds $950” and has statutory language
(“notwithstanding Section 487 or any other provision of law defining grand theft”) that would be
meaningless if it did not apply to all specific grand theft provisions. (Ibid.) The Thompson court
also took on the assumption in Cuen and Grayson (see this IPG memo, section I-5-F at pp. 52-53)
that possession of access card account information with fraudulent intent under section 484e(d) can
be distinguished from other theft crimes because of the significant risk of identity theft and loss to
the victim and the corollary belief that the electorate could not have intended to “undercut” the
broad consumer-protection purpose behind section 484e, subdivision (d) by valuing such a risk at
$950 or less. The Thompson court observed that if the intent behind Proposition 47 were to
exclude offenses under section 484e (d), section 490.2 would have been written so its introductory
language was narrower or included specified exceptions. Moreover, the Thompson court found
reasons for concluding Proposition 47 did contemplate the risk posed by identity theft crimes but did
not believe the risk was sufficient to prevent relief under Proposition 47. For example, Proposition
47 also amended Penal Code section 473 (check forgery), making it a misdemeanor where the value
of the check does not exceed $950. Yet checks contain the same type of account information that is
found on an access card, as well as the owner’s address. Thus, a person in possession of another
person's check is likely to have access to the same identifying information as a person who acquires
and retains access card account information. But relief from a felony conviction for violating section
56
473 explicitly states that the changes effectuated by Proposition 47 apply unless the defendant is
convicted both of forgery and of identity theft, as defined in Penal Code section 530.5. That is, it is
only when a defendant has actually been convicted of identity theft that check forgery would not be
reclassified as a misdemeanor. Furthermore, the identity theft provisions under section 530.5 can be
charged as either a misdemeanor or a felony, so the intent to protect consumers against identity theft
crimes is not synonymous with a felony charge. (Id. at p. 420.)
According to the Thompson court, no mere acquisition or retention of an access card or access card
information could ever amount to grand theft. This is because it is an “evidentiary impracticability”
to try and base the value of the access account card information on what it would fetch if it were
fenced on the black market. The Thompson court determined that there is no intrinsic value to the
plastic of the access card ever exceeding $950 and “[t]he account information also has minimal
intrinsic value, in that it is only valuable if used.” (Id. at p. 422.) The Thompson court was not
troubled by this conclusion because it believed a felony could still be obtained, pursuant to Penal
Code section 484g, if the information is ever used and the value of all the property acquired through
use of the card account information exceeds $950 in a six-month period or, alternatively, if the
defendant were to take an access card or access card information and use it to purchase property that
exceeds $950. (Id. at pp. 422-423.)
Thompson has been taken up for review by the California Supreme Court and further action in the
case has been deferred pending consideration and disposition of a related issue in People v. Cuen
(2015) 241 Cal.App.4th 1227 [rev. gtd, dkt # S231107] and People v. Romanowski (2015) 242
Cal.App.4th 151 [rev. gtd, dkt # S231405. (See People v. Thompson (2015) 243 Cal.App.4th 413
[rev. gtd, dkt # S232212].)
G.
If a defendant takes property under $950 from the person of another
in violation of Penal Code section 487(c), is the person subject to
felony punishment?
Under previous law, grand theft from the person in violation of Penal Code section 487(c) was a
felony regardless of the value of the property taken from the person. Now, under Proposition 47,
unless the value of the property taken from the person of another is over $950 (or the defendant has
a conviction for a registerable sex offense or a super strike), theft from the person of another is petty
theft and only punishable as a misdemeanor. (Pen. Code, § 490.2.)
57
H.
If a defendant takes a vehicle worth less than $950 in violation of
Penal Code section 487(d)(1), is the person subject to felony
punishment?
Under previous law, theft of an automobile in violation of Penal Code section 487(d)(1) was a felony
regardless of how much the automobile was worth. Now, under Proposition 47, unless the value of
vehicle taken from the person of another is over $950 (or the defendant has a conviction for a
registerable sex offense or a superstrike), theft of an automobile is petty theft and only punishable as
a misdemeanor. (Pen. Code, § 490.2.)
I.
Does Prop 47 have any impact on the ability to charge a defendant with a
violation of Vehicle Code section 10851 when the automobile that is
driven or taken is worth less than $950?
Vehicle Code section 10851 provides: “(a) Any person who drives or takes a vehicle not his or her
own, without the consent of the owner thereof, and with intent either to permanently or temporarily
deprive the owner thereof of his or her title to or possession of the vehicle, whether with or
without intent to steal the vehicle, or any person who is a party or an accessory to or an
accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon
conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or
pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five
thousand dollars ($5,000), or by both the fine and imprisonment.” (Emphasis added by IPG.)
There have been several cases in which the defendants have claimed that since their conviction for
violating section 10851 involved a vehicle worth $95o or less, they were entitled to a reduction of
that conviction to a misdemeanor under the theory that a violation of section 10851 is a form of theft
and under Penal Code section 490.2 thefts of property worth $950 or less are now misdemeanors.
(See People v. Solis (2016) 245 Cal.App.4th 1099 [2016 WL 1158297, at p. *1]; People v.
Orozco (2016) 244 Cal.App.4th 65, 68 [rhg. gtd]; People v. Page (2015) 241 Cal.App.4th 714, 717
[rev. gtd, dkt # S230793]; People v. Gomez (2015) 243 Cal.App.4th 319, 322 [rhg. gtd].)
The California Supreme Court has taken up the issue. (See People v. Page (2015) 241 Cal.App.4th
714, 717 [rev. gtd, dkt # S230793].) On the California Supreme Court website, the issue is described
the following manner: “Does Proposition 47 (the Safe Neighborhoods and Schools Act") apply to the
offense of unlawful taking or driving a vehicle (Veh. Code, § 10851), because it is a lesser included
58
offense of Penal Code section 487, subdivision (d), and that offense is eligible for resentencing to a
misdemeanor under Penal Code sections 490.2 and 1170.18?”*
*Editor’s note: On the California Supreme Court website, there is a caveat regarding the description of
the identified issue: “The statement of the issues is intended simply to inform the public and the press of
the general subject matter of the case. The description set out above does not necessarily reflect the view
of the court, or define the specific issues that will be addressed by the court.” (See
http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2126539&doc_no=S230793
i.
Cases and arguments defense counsel will rely on in support of a request for
treating a violation of Vehicle Code section 10851 as a straight misdemeanor
(for purposes of going forward or for purposes of reducing their prior section
10851 felony conviction to a misdemeanor) if the value of the vehicle stolen is
less than $950
First, “section 1170.18 should be broadly interpreted to include violations of Vehicle Code section
10851.” (People v. Gomez (2015) 243 Cal.App.4th 319, 322 [rhg. gtd].) Vehicle Code section
10851 is not a serious or violent felony and the same policy reasons motivating Proposition 47’s
reduction in punishment for certain felony or wobbler offenses would also apply equally well to
Vehicle Code section 10851. (See People v. Page (2015) 241 Cal.App.4th 714, 720 [rev. gtd, dkt #
S230793 – noting but rejecting this argument].)
Second, it makes no sense that a crime involving an intent to temporarily deprive someone of
property worth less than $951 is not treated as petty theft while a crime with a more culpable state of
mind (i.e., an intent to permanently deprive someone of property worth less than $951) is deemed
petty theft. (See People v. Solis (2016) 245 Cal.App.4th 1099 [2016 WL 1158297, *7] [noting
argument but rejecting it on the ground that it is based on the false premise that a lesser-included
offense is always less serious than a greater offense and should not be subject to greater
punishment].)
Third, section 10851 should be viewed as a theft offense. Pursuant to Penal Code section 490.2,
“obtaining any property by theft where the value of the . . . personal property taken does not exceed
nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a
misdemeanor” and thus theft of an automobile valued $950 or less should be viewed as petty, not
grand theft. (People v. Orozco (2016) 244 Cal.App.4th 65 [rh’g gtd] [noting, but rejecting this
argument].) “While Proposition 47 did not list Section 10851 by name or number, the plain language
of Section 490.2 unambiguously includes conduct prohibited under Section 10851.” (People v.
59
Ortiz (2016) 243 Cal.App.4th 854, 859 [rev. gtd, dkt # S232344] [and noting that “[n]othing in the
plain language of the statute—which covers “any property by theft”—excludes the theft of a vehicle”];
see also People v. Gomez (2015) 243 Cal.App.4th 319, 327 [rhg. gtd] [and highlighting language
in “section 490.2 that a person ‘shall’ be convicted of a misdemeanor if the value of the property
taken is less than $950”].) Vehicle Code section 10851 is a lesser included offense of section
487(d)(1) (at least when there is not a substantial break between the taking and use of the
automobile) and it “logically” follows that a defendant who is being prosecuted for, or has been
convicted of, the lesser included offense of section 487 should be entitled to similar relief. (People
v. Orozco (2016) 244 Cal.App.4th 65, 72 [rh’g gtd] [noting but rejecting this argument]; People v.
Page (2015) 241 Cal.App.4th 714, 717-718 [rev. gtd, dkt # S230793] [same].)
Fourth, equal protection principles require that a conviction for unlawfully taking a vehicle in
violation of Vehicle Code section 10851 be treated in the same manner as a conviction for grand theft
auto in violation of Penal Code section 487(d)(1). (See People v. Page (2015) 241 Cal.App.4th 714,
717-718 [rev. gtd, docket # S230793] [noting but rejecting this argument]; People v. Gomez (2015)
243 Cal.App.4th 319, 322-323, 329 [rhg. gtd]; see also People v. Solis (2016) 245 Cal.App.4th
1099 [2016 WL 1158297, *7] [noting but rejecting argument of defendant that there is no rational
basis for treating joyriding convictions more harshly than automobile theft convictions].)
Fifth, at least when it can be shown the conviction was based on the taking of the vehicle with the
intent to permanently deprive the owner of the vehicle, if a “defendant takes a vehicle valued under
$950, such violation should constitute a violation of Penal Code section 490.2.” (People v. Gomez
(2015) 243 Cal.App.4th 319, 326 [rhg. gtd], emphasis added.) In People v. Ortiz (2016) 243
Cal.App.4th 854, the court recognized that section 10851 “covers both theft and non-theft conduct”
but stated a defendant with “a conviction under Section 10851 may be eligible for resentencing under
Section 490.2, provided the offense satisfies the elements of petty theft as defined by that section[.]”
(Id. at pp. 858, 860, emphasis added].)
*Editor’s note: In People v. Ortiz (2016) 243 Cal.App.4th 854 [rev. gtd, dkt # S232344], the court
found the defendant was prosecuted under a “taking” (i.e., theft) theory based on (i) the fact defendant was
explicitly charged with vehicle theft; (ii) the pleadings repeatedly referred to the violation as a “theft”; (iii)
the abstract of judgment listed the offense as vehicle theft; and (iv) “more significantly, the facts of the case
support[ed] a finding of theft” since “[p]olice found defendant in possession of the vehicle two weeks after
it was stolen, and the vehicle's rear license plate had been replaced” which meant that “[i]f defendant did
not intend to permanently deprive the owner of its possession, he certainly intended to do so ‘for so
extended a period as to deprive the owner of a major portion of its value or enjoyment.’” (Id. at p. 860.)
60
ii. Cases and arguments that prosecutors can rely on that undermine the claim a
violation of Vehicle Code section 10851 should be treated as a felony regardless
of whether the value of the vehicle stolen is less than $950
First, section 1170.18(a) provides a mechanism for an offender to request to be resentenced “in
accordance with” certain enumerated sections that were amended or added by Proposition 47. But
there is no reference to Vehicle Code section 10851 (or any Vehicle Code violation for that matter) in
the list of crimes designated in Penal Code section 1170.18 as being eligible for resentencing and
there was no amendment to the language of section 10851 by Proposition 47. When items identified
in a statute are members of an “associated group or series” it justifies the conclusion that items not
mentioned were excluded by deliberate choice, not inadvertence. In light of that rule of statutory
interpretation and the rule counseling against adding words to a statute simply to conform to an
assumed intent, the fact section 10851 was not included in the list of offenses eligible for
resentencing, the omission should be viewed as intentional. (People v. Orozco (2016) 244
Cal.App.4th 65, 71 [reh'g gtd]; see also People v. Page (2015) 241 Cal.App.4th 714, 718 [rev. gtd,
docket # S230793].) Indeed, no mention of any Vehicle Code violation is made in Proposition 47 at
all! (See People v. Solis (2016) 245 Cal.App.4th 1099 [2016 WL 1158297, *7 [finding “the plain
meaning of Section 490.2 . . . excludes Section 10851 offenses from Proposition 47 relief”].)
Second, section 10851 is not subject to Penal Code section 490.2 because the language in the latter
section stating that “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” is prefaced by the words, “Notwithstanding Section 487 or any other provision of law
defining grand theft[.]” (Emphasis added by IPG.) On its face, section 490.2 does no more than
amend the definition of grand theft, as articulated in Penal Code section 487 or any other provision
of law, redefining a limited subset of offenses that would formerly have been grand theft to be petty
theft. It does not list Vehicle Code section 10851 and section Vehicle Code section 10851 does not
proscribe theft of either the grand or petty variety, but rather the taking or driving of a vehicle “with
or without intent to steal.” (See People v. Page (2015) 241 Cal.App.4th 714, 718-719 [rev. gtd,
docket # S230793].) Vehicle Code section 10851 has always been viewed as a distinct crime from
section 487 (see People v. Jaramillo (1976) 16 Cal.3d 752, 755; People v. Frye (1994) 28
Cal.App.4th 1080, 1083) and has never been viewed as “defining grand theft” (see e.g., People v.
Carr (1964) 229 Cal.App.2d 74 [where jury acquitted defendant of “grand theft auto” but not of
violating section 10851, “it must be assumed that the jury believed the evidence fell short of showing
an intent on her part to steal or embezzle the vehicle”].)
61
Third, “as a matter of statutory interpretation, . . . all convictions under Section 10851—
including those committed with the intent to deprive the owner of permanent possession of a
vehicle—are ineligible for reduction in accordance with section eight of Proposition 47.” (People v.
Solis (2016) 245 Cal.App.4th 1099 [2016 WL 1158297, *5], emphasis added by IPG.) The Solis
court gave several reasons why the rules of statutory interpretation preclude application of
Proposition 47 to section 10851.
Initially, the court in Solis explained: “Proposition 47 amended Penal Code section 666, petty theft
with prior, and reduced the maximum prison sentence from three years to one year. Eligible
predicates include prior convictions for ‘petty theft, grand theft, ... auto theft under Section 10851 of
the Vehicle Code, burglary, carjacking, robbery,’ and receiving stolen property. (Pen. Code, § 666,
subd. (a).) To interpret Proposition 47 as a symmetrical, coherent scheme, in which operative words
are used consistently throughout, we must accord ‘petty theft’ and ‘grand theft’ the same meaning in
both section eight (adding § 490.2) and section 10 (amending § 666). (See Ballot Pamp., supra, text
of Prop. 47, §§ 8, 10.) The inclusion of ‘auto theft under Section 10851 of the Vehicle Code [ ]’
alongside ‘grand theft’ and ‘petty theft’ in section 666 is therefore a significant indication that the
voters did not consider Section 10851 a variety of petty theft. If the initiative drafters considered
‘auto theft under Section 10851’ a species of petty theft—a term they defined in section eight (adding
§ 490.2)—there would have been no need to designate it as a separate predicate in section 10
(amending § 666).” (Solis at p. *5.) “[I]nterpreting Section 490.2 to encompass Section 10851
would render portions of the initiative surplusage” and run afoul of the rule of statutory construction
that gives meaning to every word of the statute. (Ibid; but see conc. opn in People v. Solis
(2016) 245 Cal.App.4th 1099 [2016 WL 115829716, *8-*9 [disagreeing with this rationale albeit not
ultimate conclusion that section 10851 is not covered by Proposition 47; and counter argument in
majority opinion at p. *5, fn. 7.)
Then the Solis court discussed how another rule of statutory interpretation also dictated the
conclusion section 10851 is outside the scope of section 490.2; namely, the rule that “[a] specific
provision relating to a particular subject will govern in respect to that subject, as against a general
provision, although the latter, standing alone, would be broad enough to include the subject to which
the more particular provision relates.” (Solis at p. *6.) To “the extent Section 10851 may be
violated in a way that brings it within Penal Code sections 484 and 490.2, . . . the specific rule of
Section 10851 is an exception to the general rule announced in Section 490.2, subdivision (a).” (Id.
at p. *6.) That is, while section 484 prohibits the felonious taking of personal property—of which
62
cars are but one variety - , section 10851 targets specific car-related behavior—driving or taking a
vehicle—that may also violate Penal Code section 484. “Moreover, Section 10851 is a cornerstone of
a detailed statutory scheme encompassing public safety, tow-truck regulations, stolen-vehicle
recovery, and car insurance.” (Solis at p. *6.) “If the electorate intended to reclassify some
violations of Section 10851, it would not do so, without comment, via a general Penal Code provision
defining petty theft.” (Solis at p. *6.)
Fourth, even assuming section 490.2 could apply to section 10851 in certain circumstances, unless
the prosecution proceeds on the theory that the defendant both (i) took a vehicle and (ii) took the
vehicle with the intent to steal, a violation of section 10851 is not theft. As pointed out in People v.
Garza (2005) 35 Cal.4th 866, while unlawfully taking a vehicle with the intent to permanently
deprive the owner of possession is a form of theft, unlawful driving of a vehicle is not a form of theft
when the driving occurs or continues after the theft is complete[.]” (Id. at p. 871, emphasis added by
IPG; see also People v. Orozco (2016) 244 Cal.App.4th 65, 72 [rh’g gtd].)
Moreover, if the defendant merely had the intent to “temporarily deprive” the owner of the vehicle, it
would not be theft even if the defendant did take the vehicle. “[S]ection 490.2 reduces the possible
punishment for defendants convicted of “obtaining property by theft” worth less than $951.”
(People v. Solis (2016) 245 Cal.App.4th 1099 [2016 WL 1158297, *4.) In order for the defendant
to be guilty of theft, the People must prove the defendant intended to permanently deprive the
owner of possession of his car - the taking of property without the intent to steal is not theft.
However, a violation of Section 10851 does not require this intent. “Indeed, the main difference
between the two offenses is the required mens rea—the gravamen of a theft crime.” (People v.
Solis (2016) 245 Cal.App.4th 1099[2016 WL 1158297, *4; see also People v. Davis (1998) 19
Cal.4th 301, 307 [“the general rule is that the intent to steal required for conviction of larceny is an
intent to deprive the owner permanently of possession of the property.”]; People v. Bell (2011) 197
Cal.App.4th 822, 826.)
*Editor’s note (part I of II): It is true that the California Supreme Court has cautioned that the term
“intent to permanently deprive” should not be given a strict construction and held that in certain cases “the
requisite intent to steal may be found even though the defendant's primary purpose in taking the property
is not to deprive the owner permanently of possession,” such as “(1) when the defendant intends to ‘sell’ the
property back to its owner, (2) when the defendant intends to claim a reward for ‘finding’ the property, and
(3) when ... the defendant intends to return the property to its owner for a ‘refund.’” (People v. Davis
(1998) 19 Cal.4th 301, 307; People v. Bell (2011) 197 Cal.App.4th 822, 826-827.)
63
*Editor’s note (part II of II): Additionally, in People v. Avery (2002) 27 Cal.4th 49, the court held
“an intent to take the property for so extended a period as to deprive the owner of a major portion of its
value or enjoyment satisfies the common law, and therefore California, intent requirement.” (Id. at p. 55.)
However, a defendant is not guilty of “theft” unless defendant has “the specific intent at the time of the
taking to permanently deprive the owner of the property.” (In re Jesus O. (2007) 40 Cal.4th 859, 867;
People v. Avery (2002) 27 Cal.4th 49, 54.) And section 10851 specifically draws a distinction
between the intent to permanently deprive and temporarily deprive the owner of title to or possession of
the vehicle. In other words, no matter how broad or flexible an interpretation is given to the intent to
permanently deprive, it is a distinct state of mind from the intent to temporarily deprive.
Ergo, unless a defendant can establish he is being charged or was convicted based solely on
unlawfully taking a vehicle (worth less than $950) with the intent to permanently deprive at the time
of the taking, section 490.2 is inapplicable. And thus “defendants convicted of this form of Section
10851 are ineligible for resentencing under Proposition 47.” (People v. Solis (2016) 245
Cal.App.4th 1099 [2016 WL 115829716, *5].)
Considering that the instructions on section 10851 (CALJIC 14.36 and CALCRIM 1820) do not
require the jury to choose one state of mind over the other, establishing this proposition will be very
difficult. (See e.g., People v. Orozco (2016) 244 Cal.App.4th 65, 72-73 [rh’g gtd] [assuming
section 490.2 could apply to some section 10851 violations, it did not apply where defendant pled
guilty to unlawfully driving another person’s vehicle without his or her permission, not theft of a
vehicle, and defendant provided story inconsistent with his having taken vehicle or intending to
permanently keep it]; but see People v. Ortiz (2016) 243 Cal.App.4th 854, 860 [rev. gtd, dkt #
S232344 and discussed in this IPG memo, section I-5-I-i at p. 60 [sufficient showing conviction
based on theft].)
Fifth, there is no violation of equal protection by drawing a distinction between those prosecuted for
violating Penal Code section 487(d)(1) and those prosecuted for violating Vehicle section 10851. The
California Supreme Court has held that “neither the existence of two identical criminal statutes
prescribing different levels of punishments, nor the exercise of a prosecutor’s discretion in charging
under one such statute and not the other, violates equal protection principles.” (People v. Page
(2015) 241 Cal.App.4th 714, 719 [rev. gtd S230793] citing to People v. Wilkinson (2004) 33
Cal.4th 821, 838; accord People v. Solis (2016) 245 Cal.App.4th 1099 [2016 WL 1158297, *7].)
“The same reasoning applies to Proposition 47's provision for the possibility of sentence reduction
for a limited subset of those previously convicted of grand theft (those who stole an automobile or
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other personal property valued $950 or less), but not those convicted of unlawfully taking or driving
a vehicle in violation of Vehicle Code section 10851. Absent a showing that a particular defendant
“‘has been singled out deliberately for prosecution on the basis of some invidious criterion,” ... the
defendant cannot make out an equal protection violation.’” (People v. Page (2015) 241
Cal.App.4th 714, 719 [rev. gtd S230793] citing to People v. Wilkinson (2004) 33 Cal.4th 821,
839.)
Sixth, as to any defense argument that it does not make sense to allow someone who unlawfully
takes or drives a vehicle valued under $950 and does so with a less culpable state of mind than the
intent to permanently deprive to be treated as a felon but not someone who steals a vehicle in
violation of section 487, the answer is simple. The drafters of Proposition 47 were more concerned
with passing the initiative than with being consistent. And “it is plausible that the drafters of the
initiative did not consider it to be as palatable” to include section 10851 in the list of crimes that can
no longer be charged as a felony (if the vehicle taken is worth less than $950) “given the outrage the
offense generally provokes (because owners typically are dependent on their vehicles, unlike other
forms of property). . . and its ubiquitousness, to the electorate for reduced punishment as the
designated offenses[.]” (People v. Haywood (2015) 243 Cal.App.4th 515 [198 Cal.Rptr.3d 40, 4445] [rev. gtd, dkt # S232250]; cf., City of Riverside v. Inland Empire Patients Health &
Wellness Center, Inc. (2013) 56 Cal.4th 729, 746 [noting, while interpreting Proposition 215 (the
medical marijuana initiative), “the proponents ballot arguments reveal a delicate tightrope walk
designed to induce voter approval, which we would upset were we to stretch the proposition’s
limited immunity to cover that which its language does not”].)
Moreover, as to the argument (sometimes tied to the defense equal protection argument) that there
is no rational basis for treating violations of section 10851 differently than auto thefts under Penal
Code section 487d, there is “nothing absurd or irrational about the legislative determination that
theft of certain automobiles of very low value should be treated as petty theft, and thus potentially a
misdemeanor, while retaining the statutory option of punishing the unlawful taking or driving of an
automobile, regardless of intent to steal, as a felony violation of Vehicle Code section 10851.”
(People v. Page (2015) 241 Cal.App.4th 714, 720 [rev. gtd, docket # S230793].) As pointed out in
People v. Solis (2016) 245 Cal.App.4th 1099 [2016 WL 1158297], “felony prosecutions under
Section 10851 serve important public safety and deterrence functions that differ from those served
by prosecutions for theft.” (Id. at p. *8.) “[T]he Vehicle Code is concerned with assuring public
safety on California thoroughfares, whereas the Penal Code is concerned with wrongs to individual
65
people.” (Id. at p. *7.) “By punishing taking or driving a vehicle without the intent to deprive the
owner of permanent title or possession, Section 10851 addresses dangers to the public. Such
dangers are not encompassed by standard theft statutes, which focus on particular victims—the
owners of stolen personal property. Undoubtedly, the unexpected loss of a vehicle directly affects
the safety and welfare of individual vehicle operators and owners, but it also places the public at risk
if, for example, the car is driven recklessly or used to commit another crime. Just as a vehicle can be
a dangerous weapon, joyriding can jeopardize public safety.” (Ibid.) “It is thus reasonable for the
Legislature to afford prosecutors the discretion to prosecute joyriders as felons rather than
misdemeanants.” (Ibid; but see conc. opn in People v. Solis (2016) 245 Cal.App.4th 1099 [2016
WL 1158297, *8-*9 [disagreeing with this rationale albeit not ultimate conclusion that section10851
is not covered by Proposition 47].)
*Editor’s note: An excellent and much more comprehensive brief on the issue has been put together by
Contra Costa County DDA Ryan Wagner. It is available upon request.
iii. Should prosecutors prove up the value of the vehicle in future cases involving
Vehicle Code section 10851 violations?
Notwithstanding all the above reasons for finding Proposition 47 did not impact Vehicle Code
section 10851, on the off-chance that courts may find section 490.2 applicable to violations of
Vehicle Code section 10851 when the car is worth less than $950, prosecutors should prove up the
value in court. Prosecutors should also consider telling officers to obtain the value of the car taken
from the owner of the car and document the value in the report. And, based on the possibility a theft
of vehicle under $950 is viewed solely as a misdemeanor, prosecutors may want to inform officers to
make use of the statute governing citizen arrests (Pen. Code, § 847) before taking a defendant
charged with this violation if it took place outside the presence of the officer.
J. If a defendant steals a firearm worth $950 or less in violation of Penal
Code section 487(d)(2), is the person subject to felony punishment?
Before Proposition 47, theft of a firearm was a straight felony with a 16-2-3 punishment in state
prison. (Pen. Code, § 489(a).) However, “Proposition 47 added a new provision, section 490.2,
subdivision (a), which reclassifies felony section 487, subdivision (d)(2) grand theft violations into
misdemeanors “where the value of the ... property taken does not exceed nine hundred fifty dollars
($950).” (People v. Perkins (2016) 244 Cal.App.4th 129, 141.) Thus, in People v. Perkins
66
(2016) 244 Cal.App.4th 129, the court indicated a defendant convicted of violating section 487(d)(2)
would be entitled to resentencing on that conviction as a misdemeanor - provided the value of the
firearm could be shown not to exceed $950. (Id. at p. 141.)
If Perkins is correct (and it probably is) a non-wobbler crime that is a serious felony and a strike
offense under California law (see People v. Rodola (1998) 66 Cal.App.4th 1505, 1508; Pen. Code,
§§ 667(d)&(e); 1170.12(b)&(c)), and 1192.7(c)(26)) is now a misdemeanor unless the defendant has
been convicted of a registerable sex offense or a super strike.
i.
Can a conviction for violating Penal Code section 487(d)(2) be a “strike”
offense?
Whether a conviction for violating Penal Code section 487(d)(2) when the value of the firearm is
under $950 can be treated as a “strike” prior or a serious felony depends on two factors: (i) whether
the conviction was suffered by a defendant who has a prior conviction for a crime requiring sex
offender registration or a super strike; and (ii) whether the conviction was suffered before 11/5/14.
If the defendant charged with the grand theft of a firearm (with a value of $950 or less) in violation
of Penal Code section 487(d)(2) has a conviction for a crime requiring sex offender registration or for
a super strike, the conviction may still be treated as a strike. (See Pen. Code, §§ 667(d)&(e);
1192.7(c)(26).) However, if the defendant does not have a conviction for a crime requiring sex
offender registration or for a super strike, then a defendant who commits the crime of theft of a
firearm under $950 in value can no longer be charged with a “strike offense” and any conviction
arising from the charges cannot be used in the future as a strike offense, since it is a misdemeanor
and both Penal Code sections 1170.12(b) and 667(d) define “strikes” as being felonies.
If a defendant who steals a firearm (valued at $950 or less) merits felony punishment, consider
charging the defendant with another type of firearm possession violation (if applicable) that
constitutes a felony. (See e.g., Pen. Code, § 29800 [ex-felon in possession] or Pen. Code, § 23900
[obliterating identification marks on firearm].)
As to whether a conviction for theft of a firearm under $950 that occurred before the passage of
Proposition 47 can still be used as a strike offense (per Pen. Code, §§ 667(e) and 1170.12(c)) and/or a
serious felony prior (per Pen. Code, § 667) if it is later reduced to a misdemeanor conviction
pursuant to Penal Code section 1170.18 (as enacted by Proposition 47), see this IPG memo at section
VI-9 at p.214.
67
K.
Is elder abuse involving theft, embezzlement, fraud, or identity theft
in violation of Penal Code section 368(d) or (e) subject to felony
punishment?
Penal Code section 368, subdivisions (d) and (e) respectively permit felony punishment for all
persons (subdivision (d)) and caretakers (subdivision (e)) of elder or dependent adults if the person
or caretaker “violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or . . .
violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying
information of an elder or a dependent adult, and [the person or caretaker] knows or reasonably
should know that the victim is an elder or a dependent adult[.]” (Pen. Code, § 368(d)&(e).) There is
no distinction drawn between grand theft and petty theft under section 368.
In People v. Bush (2016) 245 Cal.App.4th 992 [200 Cal.Rptr.3d 190], a defendant convicted of
thefts from an elder in violation of Penal Code section 368(d) sought to have his convictions reduced
to misdemeanors pursuant to section 1170.18(a). The trial court found defendant’s petition did not
satisfy the criteria for resentencing and defendant appealed. The defendant argued he was eligible
for resentencing even though a section 368 violation is not one of the enumerated crimes in section
1170.18, because section 490.2 provides that any theft crime in which the value of the stolen property
does not exceed $950 shall be punished as a misdemeanor and section 490.2 encompasses a section
368 theft offense if the theft is of property not exceeding $950. (Id. at p. 197.) The appellate court
rejected this argument and held “as a matter of law that defendant was ‘not eligible for relief under
Prop 47, due to the nature of the convictions’ for his section 368 convictions[.]” (Id. at p. 196.)
Among the reasons provided for rejecting defendant’s argument: (i) “Proposition 47 neither lists
section 368 as a crime eligible for resentencing nor amends section 368 to change it from a wobbler
to a misdemeanor” and (id. at p. 198); (ii) “[e]ven assuming Proposition 47 encompasses statutes
not amended by or listed in Proposition 47, a section 368 offense is not subject to Proposition 47
because section 368 provides the trial court with discretion to decide whether a section 368 violation
is a misdemeanor or a felony” and “Proposition 47 did not amend section 368 to eliminate this
discretion and require misdemeanor status” (id. at p. 199); (iii) “Proposition 47 rewrote section 666,
adding language to subdivision (b) of section 666, excluding section 368 from limited punishment
under section 666 of one year in jail or prison” which reflects that “Proposition 47 was not intended
to provide resentencing for a section 368 crime, because section 368 is considered a more serious
offense than the listed theft crimes in section 1170.18” (id. at pp. 198-199, emphasis added by IPG;
see also this IPG outline, section I-4-A&B at pp. 36-38).
68
L.
Are statutes punishing “embezzlement” or “larceny” subject to Penal
Code section 490.2?
It is likely, though not certain, that many crimes punishing “embezzlement,” “larceny,” or “stealing”
will be subject to Penal Code section 490.2. This is because Penal Code section 490a provides:
“Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing,
said law or statute shall hereafter be read and interpreted as if the word “theft” were substituted
therefor.”
If section 490.2 is interpreted as applying to any statute defining “theft” then statutes defining
embezzlement, larceny, or stealing are all potentially subject to section 490.2. (Compare People
v. Gonzales (2015) 242 Cal.App.4th 35 [rev. gtd, docket # S231171] [“larceny” should not be treated
as synonymous with “theft”] with People v. Triplett (2016) 244 Cal.App.4th 824, 833-834 [rev.
filed] [“larceny” should be treated as synonymous with “theft”] and People v. Vargas (2016) 243
Cal.App.4th 1416, 1427 [rev. gtd, dkt # S232673] [same].)
*Editor’s note: Whether theft includes larceny is important in assessing the scope of the crime of
“shoplifting” which is defined as entering a commercial establishment with intent to commit larceny while
that establishment is open during regular business hours (Pen. Code, § 459.5). (See this IPG memo,
section I-3-K at pp. 27-33.)
It is true that embezzlement does not necessarily involve a “taking” (see Pen. Code, 509 [“A distinct
act of taking is not necessary to constitute embezzlement”]; and section 490.2 implicitly requires
“something” be taken so that a value (either over or under $950) can be assigned. However, the
definition of “theft” in section 484a incorporates the definition of embezzlement. (Compare Pen.
Code, § 503 [“Embezzlement is the fraudulent appropriation of property by a person to whom it has
been intrusted”] with Pen. Code, § 484a [defining theft to include the crime of “fraudulently
appropriat[ing] property which has been entrusted to him or her”].) And a value can be assigned to
whatever property is “embezzled.” (See Pen. Code, § 514 [“Every person guilty of embezzlement is
punishable in the manner prescribed for theft of property of the value or kind embezzled; and where
the property embezzled is an evidence of debt or right of action, the sum due upon it or secured to be
paid by it must be taken as its value”].)
An issue might arise as to what punishment must be imposed if the property embezzled constitutes
“public funds.” Penal Code section 514, in relevant part, states: “if the embezzlement or defalcation
69
is of the public funds of the United States, or of this state, or of any county or municipality within
this state, the offense is a felony, and is punishable by imprisonment in the state
prison[.]” An argument can potentially be made that section 514 does not define grand theft and
thus (at least this aspect of section 514) is outside the scope of section 490.2. It is possible though
that the language of section 490.2 will be deemed to supersede the language in section 514 allowing
punishment in state prison for embezzlement of public funds when the funds are under $950.
Crimes which are subject to section 490a’s requirement that the word “theft” be substituted for the
words “embezzlement,” “larceny,” or “stealing” (and thus statutes which potentially are impacted by
section 490.2) include:
Financial Code section 1880 [referencing “embezzles”]
Penal Code section 332 [referencing “larceny”]
Penal Code section 484c [referencing “embezzlement”]
Penal Code section 502.5 [referencing “larceny”]
Penal Code section 504b [referencing “embezzlement”]
Penal Code section 504b [referencing “embezzlement”]
Penal Code section 505 [referencing “embezzlement”]
Penal Code section 506 [referencing “embezzlement”]
Penal Code section 506b [referencing “embezzlement”]
Penal Code section 507 [referencing “embezzlement”]
Penal Code section 508 [referencing “embezzlement”]
Penal Code section 530 [referencing “larceny”]
M. If the property taken is under $50, does section 490.2 require that the
theft be charged as a misdemeanor?
Section 490.2 does not require that thefts of property under $50 be charged as misdemeanors.
Subdivision (b) of section 490.2 states: “This section shall not be applicable to any theft that may be
charged as an infraction pursuant to any other provision of law.” (Emphasis added.) And Penal Code
section 490.5(a) provides that a first conviction for “petty theft involving merchandise taken from a
70
merchant's premises or a book or other library materials taken from a library facility” may
alternatively be punished as a misdemeanor or infraction (i.e., by “a mandatory fine of not less than
fifty dollars ($50) and not more than one thousand dollars ($1,000) for each such violation” or “by
imprisonment in the county jail, not exceeding six months, or both such fine and imprisonment.”
Thus, theft of property falling under section 490.5 is not governed by section 490.2.
N. How should thefts involving property worth $950 or less be charged
when the defendant has a prior conviction requiring sex offender
registration or a super strike?
Although subject to some dispute, it appears that Penal Code section 490.2 authorizes charging any
theft of property under $950 as a felony if the defendant has a prior conviction for a crime specified
in Penal Code section 667(e)(2)(C)(iv) (a super strike) or Penal Code section 290(c).
Section 490.2 provides that “[n]otwithstanding Section 487 or any other provision of law defining
grand theft,” obtaining property by theft where the value does not exceed $950 shall be considered
petty theft and 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.”
Section 490.2 was written so that it prevails over all other grand theft statutes.
That is, a defendant who commits a petty theft and has a prior conviction for a registerable sex
offense or a super strike is chargeable with felony theft in the alternative. Therefore, regardless of
the threshold value in any existing grand theft statute, if a defendant steals property of a value of
$950 or less and has a prior conviction for a registerable sex offense or a super strike, that defendant
can be charged with a felony theft. (See Pen. Code, 17(a) [“A felony is a crime that is punishable
with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by
imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. Every other
crime or public offense is a misdemeanor except those offenses that are classified as infractions”].)
For example, let’s say a defendant with a prior conviction for a registerable sex offense or a super
strike steals a $300 bicycle. This crime can be charged as a felony petty theft (in violation of Penal
Code section 484) rather than misdemeanor petty theft, even though the threshold value for grand
theft pursuant to Penal Code section 487(a) is over $950. It cannot, however, be charged as a theft
in violation of Penal Code section 487(a) because that statute does not apply to thefts under $950.
71
In contrast, if a defendant with a prior conviction for a registerable sex offense or a super strike
steals a $300 firearm, then the crime can be charged either as felony grand theft in violation of Penal
Code section 487(d)(1) (because section 487(d)(1) applies to any theft of a firearm) or felony petty
theft (rather than misdemeanor petty theft) even though the threshold value for grand theft
pursuant to Penal Code section 487(a) is over $950. In either case, it is a good idea to include an
allegation specifying the defendant has the requisite prior convictions allowing the crime to be
charged as a felony even though it is valued at less than $950.
When a specific theft section (e.g., Pen. Code, § 487(c) & (d)) can be charged as an alternative to the
generic petty theft statute (Pen. Code, § 484), it is preferable to charge the more specific theft
section. Not only will doing so make it easier for prosecutors to quickly look at the charging
document and figure out what type of property or conduct the theft involves but it will also benefit
prosecutors in future who are looking at the defendant’s rapsheet and are trying to figure out the
nature of the crime involved.
As indicated above, this interpretation might be disputed. Expect the defense to argue that Prop 47
was not meant to increase punishment for petty thefts. But the response to this argument is that the
potential punishment for petty theft only applies to defendants with convictions for registerable sex
offenses or super strikes and this is consistent with the ballot argument of the Proposition 47
proponents that it “authorizes felonies for registered sex offenders and anyone with a prior
conviction for rape, murder, or child molestation.” Moreover, it is consistent with changes made to
other offenses by Proposition 47 when it comes to defendants with convictions for registerable sex
offenses or super strikes. (See e.g., Health & Saf. Code, § 11350(a) [changes made by Prop 47
increased potential punishment for possession of drugs formerly listed in subdivision (b)]; § 11377(a)
[changes made by Prop 47 increased potential punishment for possession of drugs formerly listed in
subdivision (b)].)
O.
Does Proposition 47 have any impact on the statute of limitations tolling
provisions in grand theft cases?
One perhaps unforeseen aspect of Proposition 47 is its impact on tolling provision of the statute of
limitations when it comes to grand theft.
Penal Code section 803(a) states: “Except as provided in this section, a limitation of time prescribed
in this chapter is not tolled or extended for any reason.”
72
Penal Code section 803(c) extends the statute of limitations in cases of grand theft by stating: “A
limitation of time prescribed in this chapter does not commence to run until the discovery of an
offense described in this subdivision” and then states “[t]his subdivision applies to an offense
punishable by imprisonment in the state prison or imprisonment pursuant to
subdivision (h) of Section 1170, a material element of which is fraud or breach of a fiduciary
obligation, the commission of the crimes of theft or embezzlement upon an elder or dependent adult,
or the basis of which is misconduct in office by a public officer, employee, or appointee, including,
but not limited to, the following offenses: (1) Grand theft of any type . . .”
With the passage of Proposition 47, the statute of limitations on thefts of automobile, firearms, or
other grand thefts whose punishment as a felony was not tied to the value of the property taken (see
this IPG memo, section I-5-A at pp. 39-40) now begins from the time of commission of the
crime rather than the time of discovery of the crime. This is because section 803(c)’s
tolling provision (that stops the clock from ticking on the statute of limitations in theft cases until
“discovery” of the theft) only applies “to an offense punishable by imprisonment in the state prison
or imprisonment pursuant to subdivision (h) of Section 1170” and grand thefts of property under
$950 (except those committed by defendants with convictions for registerable sex offenses or super
strikes) are no longer punishable by imprisonment. This alteration may not have much practical
impact as crimes involving the theft of items which pre-Proposition 47 were deemed grand theft but
now constitute petty theft (e.g., the theft of firearms, automobiles, animals, etc.) would ordinarily be
discovered immediately. (Though one can easily imagine an elderly victim not realizing a firearm
was taken by a caretaker until long after the theft occurred.)
*Editor’s note: As to the impact of Proposition 47 on the statute of limitations regarding pending crimes
that must now be prosecuted as misdemeanors instead of felonies, see this IPG memo, section II-2&3 at
pp. 105-109.
P.
Kathy Storton’s Theft Chart
Value of Property is $950 or Less & Defendant Has No Specified Prior:
A misdemeanor theft violation is chargeable.
Value of Property is $950 or Less & Defendant Has a Specified Prior:
A felony theft violation is chargeable.
Value of Property is Over $950, Regardless of Priors:
A felony grand theft violation is chargeable.
73
6.
The impact of Proposition 47 on the crime of forgery: new Penal
Code section 473(b)
Before Proposition 47, Penal Code section 473 made the crime of forgery a wobbler punishable by up
to one year in jail or 16 months, two years, or three years pursuant to Penal Code section 1170(h).
There was no threshold value required – all forgeries were treated equally. Proposition 47 amended
section 473 to add a new subdivision (b) which reduced the punishment for forgeries of certain items
when the value of the item forged is $950 or less. Under the new subdivision (b), any forgery
relating to one of seven specified items (check, bond, bank bill, note, cashier’s check, traveler’s
check, or money order) where the value of the item is $950 or less, is now a misdemeanor unless the
defendant has been convicted of a registerable sex offense or a super strike and/or the defendant is
also convicted of identity theft as defined in Penal Code section 530.5. (See People v. Franco
(2016) 245 Cal.App.4th 679, 681.)
Thus, in order for section 473(b) to apply, the following must be established:
1.
The crime charged is “forgery.”
2.
The forged document is a check, bond, bank bill, note, cashier’s check, traveler’s check, or
money order.
3.
The value of the item forged does not exceed $950.
4.
The defendant has not been convicted of a registerable sex offense or a super strike.
5.
The defendant is not also convicted of identity theft.
Forgeries unrelated to one of the seven designated categories are unaffected by Proposition 47 and
remain wobblers, regardless of the dollar amount. For example, a violation of Penal Code section
470(d) covers forgery of the designated items but also covers a wide variety of instruments, the
forgery of which would not be impacted by Proposition 47. Similarly, crimes designated “forgery”
that relate to credit or access cards (see e.g., Pen. Code, §§ 484f(a)[access card], 484f(b) [access
card, sales slip, sales draft] 484i [access cards and card making equipment]) or documents filed in
court (see e.g., Pen. Code, § 470(c) [will, codicil, conveyance, judgment of court]) are unaffected by
Proposition 47.
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*Editor’s note: Why limit the reduced punishment to forgeries of checks, bonds, bank bills, notes,
cashier’s checks, traveler’s checks, or money orders? One reason for the limitation is that many
crimes of forgery do not involve theft and thus do not involve an identifiable “loss.” (See People v.
Parrott (1959) 174 Cal.App.2d 301, 304 [“the gist of the offense is the false making of an instrument
or the uttering of such instrument with intent to defraud” and “making or use of such instrument is
not a necessary part of the crime of theft”].) Another reason may be that the drafters wished to
preclude prosecutors from charging forgeries as an alternative to a theft charge involving property
under $950 – at least when the crime does not involve identity theft. The designated documents are
those most likely to simultaneously support both a theft and a forgery charge.
A.
The statutory language of amended Penal Code section 473
Penal Code section 473, which defines the punishment for forgery, as amended by Prop 47 to add
subdivision (b) states:
“(a) Forgery is punishable by imprisonment in a county jail for not more than one year, or by
imprisonment pursuant to subdivision (h) of Section 1170.
(b) Notwithstanding subdivision (a), any person who is guilty of forgery relating to a check, bond,
bank bill, note, cashier's check, traveler's check, or money order, where the value of the check, bond,
bank bill, note, cashier's check, traveler's check, or money order does not exceed nine hundred fifty
dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year,
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. This subdivision shall not be applicable to any person who is
convicted both of forgery and of identity theft, as defined in Section 530.5.”
*Editor’s note: For a list of the offenses specified in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 (aka “super strikes”) and listed in Penal Code section 290(c), see this IPG
memo , section III-5-B at pp. 119-121.
75
B. What crimes are likely to be viewed as “forgeries” for Proposition 47
purposes?
Penal Code section 473 lays out the punishment for “forgery.” It does not define the crime of
forgery. Other statutes, however, do specifically state whether the crime encompassed in the statute
is “forgery.” Unless the crime is defined as “forgery,” it should not be assumed that new subdivision
(b) of section 473 applies – even if the crime relates to one of the seven items designated in section
473(b). Crimes likely to be deemed “forgeries” for purposes of Prop 47 when they involve one of the
seven items designated in section 473(b) include:
Penal Code § 470(a) [signing the name of another person or of a fictitious person to any of the items
listed in subdivision (d) – which includes the seven designated items]
Penal Code § 470(b) [forging the seal or handwriting of another]
Penal Code § 470(d) [making, altering, forging, or counterfeiting, uttering, publishing, passing or
attempting or offering to pass, as true and genuine, various items]
Penal Code § 475(a) [knowingly possessing or receiving, with the intent to pass or facilitate the
passage or utterance of any forged, altered, or counterfeit items, or completed items contained in
subdivision (d) of Section 470]
Penal Code § 475(b) [possessing “blank or unfinished check, note, bank bill, money order, or
traveler's check, whether real or fictitious,” with the intention of completing or facilitating the
completion of the same, in order to defraud]
Penal Code § 475(c) [possessing “any completed check, money order, traveler’s check, warrant or
county order, whether real or fictitious, with the intent to utter or pass or facilitate the utterance or
passage of the same, in order to defraud”]
Penal Code § 476 [making, passing, uttering, or publishing, or attempting to do so with intent to
defraud; or possessing with like intent “any fictitious or altered bill, note, or check, purporting to be
the bill, note, or check, or other instrument in writing for the payment of money or property of any
real or fictitious financial institution as defined in Section 186.9”]
And two more possibilities:
76
Penal Code section 368(d), in pertinent part, provides: “Any person who is not a caretaker who
violates any provision of law proscribing . . . forgery, . . . with respect to the property or personal
identifying information of an elder or a dependent adult, and who knows or reasonably should know
that the victim is an elder or a dependent adult, is punishable as follows . . .” (Emphasis added.)
Penal Code section 368(e), in pertinent part, similarly provides: “Any caretaker of an elder or a
dependent adult who violates any provision of law proscribing . . . forgery, . . . with respect to the
property or personal identifying information of that elder or dependent adult, is punishable as
follows: . . .” (Emphasis added.)
An argument can be made that section 368(d) and (e) are independent crimes that incorporate the
crime of forgery but do not constitute forgery themselves since they add additional elements, i.e.,
that the victim be an elder or dependent adult, etc. Moreover, drawing this distinction would be
consistent with Prop 47’s allowing defendants with convictions for sections 368(d)&(e) to receive
felony punishment for a violation of Penal Code section 484/666. (See People v. Bush (2016) 245
Cal.App.4th 992 [200 Cal.Rptr.3d 190, 196-199] [finding Proposition 47 does not prevent
prosecution of elder abuse in violation of Penal Code sections 368(d) or (e) as a felony even when the
violation is based on theft of property under $950 from an elder or dependent adult ].)
*Editor’s note: People v. Bush (2016) 245 Cal.App.4th 992 [200 Cal.Rptr.3d 190, 196-199] is discussed
in this IPG outline, section I-5-K at p. 68.
However, even if these crimes are deemed forgery, the changes to the forgery statute made by Prop
47 will have no significant practical impact: Both subdivisions (d) and (e) already limit punishment
for a violation of those statutes to no more than one year in county jail when the amount taken is less
than $950. (Pen. Code, § 368(d)(2) and 368(e)(2).) This is the same limitation imposed by Penal
Code section 473(b), with the exception that sections 368(d)(2) and (e)(2) also allow for the
imposition of fine not exceeding $1,000.
C.
Is the value of the forged item calculated by the amount stated on
the face of the document, the amount obtained by passing the forged
document, or the document’s intrinsic value?
In People v. Franco (2016) 245 Cal.App.4th 679, the defendant sought resentencing on his felony
conviction for forgery. The defendant argued that the “value” of the forged check he possessed was
under $950 even though it had a “face value” of $1,500 because it “was illegally drawn and was not
77
exchanged for value.” (Id. at p. 683) The defendant claimed the check had no actual value other
than its intrinsic value by virtue of the paper it was printed on. But the appellate court rejected this
argument. (Ibid.) The Franco court observed that “section 473, subdivision (b) does not specify
that it is the actual value of the check, as opposed to the face value of that instrument, that is the
value that is used to determine whether the offense is a felony or a misdemeanor.” (Id. at p. 684.)
Nevertheless, the Franco court stated “[w]hen viewed in the context of forgery . . . the word “value”
as used in section 473, subdivision (b) must correspond to the stated value or face value of the check
in order to avoid absurd consequences.” (Id. at p. 684.) The Franco court also rejected
defendant’s argument that its holding could not be applied to him because he “had a federal
constitutional due process right to rely on” existing case law that stated a forged check does not have
a value equal to the amount for which it is written (see e.g., People v. Cuellar (2008) 165
Cal.App.4th 833). (Franco at p. 684.) The Franco court reasoned its conclusion was “not a
departure from those cases holding that the actual value of a forged instrument is de minimis, and
thus it was not “failing to follow Cuellar and similar authority such that our decision may only be
applied prospectively.” (Id. at p. 684.) The court also noted that at the time defendant “committed
his offenses, Proposition 47 had not been enacted and all forgery was punishable as a felony
regardless of the value of the instrument in question.” (Ibid.) Therefore, the Franco court held,
even if its conclusion could be viewed as a change in interpretation from Cuellar and similar cases,
the change could not have had any impact on Franco’s pre-Proposition 47 decision to plead guilty.
(Ibid.)
D. May forged items be aggregated to obtain a total over $950 in order to
preclude the reduction of multiple forgeries to misdemeanors?
It does not appear that multiple forgeries can be aggregated to obtain a total over $950 in order to
preclude the reduction of multiple forgeries to misdemeanors considering that subdivision (b)
provides that forgery is punishable by only a year in county jail where “the value of the check, bond,
bank bill, note, cashier's check, traveler’s check, or money order does not exceed nine hundred fifty
dollars ($950).” (Emphasis added by IPG.)
In People v. Hoffman (2015) 241 Cal.App.4th 1304, the defendant was charged with, inter alia, 18
counts of felony forgery for forging her parents' checks in violation of Penal Code section 470(d). All
but seven of the felony forgery counts were dismissed as part of the plea; one count of grand theft of
property of a value exceeding $950 for the aggregate forgery of her parents' checks was also
dismissed. As part of the plea, the defendant executed a Harvey waiver (People v. Harvey
78
(1979) 25 Cal.3d 754) which allowed the court to consider the facts underlying the dismissed counts
“in determining sentence.” (Hoffman at p. 1307.) After Proposition 47 passed, the defendant
petitioned for resentencing but the trial court denied the request based on the fact the total amount
of the checks exceeded $950 and that placed the defendant “outside the spirit of the law that was
passed by the voters.” (Id. at p. 1308.) The defendant appealed the ruling and the court of appeal
held section 473 does not authorize the trial court to aggregate check values and thus defendant was
entitled to resentencing since the “value of the check” in each instance was less than $950. (Id. at p.
1310.) Moreover, the appellate court held the trial court could “not refuse to reduce a defendant’s
sentence based on the court’s notion of the statute’s ‘spirit” even though the Harvey waiver allowed
the trial court to rely on facts underlying the dismissed forgery and grand theft counts. (Id. at p.
1311.)
E.
Kathy Storton’s Forgery chart
One of Seven Specified Items is Involved & Value of Property is $950 or Less &
Defendant Has No Specified Prior:
A misdemeanor forgery violation is chargeable.
One of Seven Specified Items is Involved & Value of Property is $950 or Less &
Defendant Has a Specified Prior:
A felony forgery violation is chargeable.
One of Seven Specified Items is Involved & Value of Property is Over $950, Regardless
of Priors:
A felony forgery violation is chargeable.
An Item Other Then One of the Seven is Involved & Value is Any Amount, Regardless
of Priors:
A felony forgery -violation is chargeable
One of the Specified Items is Involved, Value is Property is $950 or Less, Defendant
has No Prior but is Convicted of P.C. 530.5:
A felony forgery violation is chargeable.
7.
The impact of Proposition 47 on the crime of passing a bad check:
Penal Code section 476a
Before the passage of Proposition 47, a violation of Penal Code section 476a (which makes it
unlawful to make, draw, utter, or deliver a check, draft, or order for the payment of money, knowing
at the time of maker or drawer or the corporation has insufficient funds to cover that payment) was a
79
wobbler if the total amount of checks, drafts or orders were greater than $450. Moreover, before
the passage of Proposition 47, a defendant with a single prior conviction for a violation of section
470, 475, or 476, 476a (or petty theft when defendant’s offense was a violation also of Section 470,
475, or 476 or 476a) could be convicted of a felony even if the total amount was under $450.
With the passage of Proposition 47, the threshold amount has been raised from $450 to $950 and
the number of priors for sections 470 et al. must be three instead of one in order to allow felony
punishment (pursuant to Penal Code section 1170(h)) for a violation of section 476 involving checks
in the amount of less than $450. Thus, if the total amount of the bad checks does not exceed $950,
a felony can be charged only if either:
(1) The defendant has a prior conviction for a registerable sex offense or for a super strike
or
(2) The defendant has three or more convictions for Penal Code sections 470, 475, 476, 476a, or
petty theft in a case in which the defendant’s offense was also a violation of Penal Code sections 470,
475, 476, or 476a.
*Editor’s note: For a list of the offenses specified in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 (aka “super strikes”) and listed in Penal Code section 290(c), see this IPG
memo , section III-5-B at pp. 119-121.
The changes to this section are similar to changes made a few years ago to many theft crimes (raising
the amount from $400 to $950 for grand theft) and to Penal Code section 666. Deputies should be
mindful of the new pleading and proof requirements at preliminary hearing and trial.
A. The statutory language of Penal Code section 476a
As amended by Proposition 47, section 476a, in pertinent part, now reads:
(a) Any person who, for himself or herself, as the agent or representative of another, or as an officer
of a corporation, willfully, with intent to defraud, makes or draws or utters or delivers a check, draft,
or order upon a bank or depositary, a person, a firm, or a corporation, for the payment of money,
knowing at the time of that making, drawing, uttering, or delivering that the maker or drawer or the
corporation has not sufficient funds in, or credit with the bank or depositary, person, firm, or
corporation, for the payment of that check, draft, or order and all other checks, drafts, or orders
upon funds then outstanding, in full upon its presentation, although no express representation is
80
made with reference thereto, is punishable by imprisonment in a county jail for not more than one
year, or pursuant to subdivision (h) of Section 1170.
(b) However, if the total amount of all checks, drafts, or orders that the defendant is charged with
and convicted of making, drawing, or uttering does not exceed nine hundred fifty dollars
($950), the offense is punishable only by imprisonment in the county jail for not more than one
year, 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. This
subdivision shall not be applicable if the defendant has previously been convicted of three or more
violations of Section 470, 475, or 476, or of this section, or of the crime of petty theft in a case in
which defendant's offense was a violation also of Section 470, 475, or 476 or of this section or if the
defendant has previously been convicted of any offense under the laws of any other state or of the
United States which, if committed in this state, would have been punishable as a violation of Section
470, 475 or 476 or of this section or if he has been so convicted of the crime of petty theft in a case in
which, if defendant's offense had been committed in this state, it would have been a violation also of
Section 470, 475, or 476, or of this section. (Emphasis added by IPG.)
B. Can the “bad checks” be aggregated in order to prevent a defendant
from being resentenced under section 1170.18?
In People v. Hoffman (2015) 241 Cal.App.4th 1304, the court rejected the argument that because
the total amount of money obtained through multiple counts of forgeries exceeded $950, the
defendant was not entitled to be resentenced on each of the different counts of forgery. In coming
to this conclusion, the Hoffman court specifically contrasted the crime of forgery with the crime of
passing bad checks (id. at p. 1310), suggesting that if defendant had previously been charged with
multiple counts of felony violations of section 476a that totaled more than $950, the defendant
would not be entitled to be resentenced.
81
C.
Kathy Storton’s bad check (Penal Code section 476a) chart
Value is $950 or Less & Defendant Has No Specified Prior:
A misdemeanor violation of PC § 476a is chargeable
Value is $950 or Less & Defendant Has a Specified Prop. 47 Prior:
A felony violation of PC § 476a is chargeable.
Value is $950 or Less & Defendant Has Three Specified Forgery Priors:
A felony violation of PC § 476a is chargeable.
Value is Over $950, Regardless of Priors:
A felony violation of PC § 476a is chargeable.
8.
The impact of Proposition 47 on the crime of receiving stolen
property: Penal Code sections 496, 496d, and other receipt of stolen
property crimes
Before the passage of Proposition 47, Penal Code section 496(a) permitted the district attorney or
grand jury to specify that a violation of Penal Code section 496 was a misdemeanor if the value of the
property was not over $950. Proposition 47 eliminated that provision; and instead requires the
prosecution to charge a misdemeanor violation of section 496(a) when the value of the stolen
property is $950 or less and the defendant has not been convicted of a registerable sex offense or a
super strike. (See People v. Perkins (2016) 244 Cal.App.4th 129, 136.) If the property is over
$950, the crime remains a wobbler and may be charged as a felony. If the defendant has been
convicted of a registerable sex offense or a super strike, the crime may be prosecuted as a felony
(with a potential Penal Code section 1170(h) sentence) regardless of the value of the property stolen.
Penal Code section 496(b), which pertains to swap meet vendors and second hand dealers and
permits a felony charge so long as the value of the property is over $950, was not changed by
Proposition 47.
*Editor’s note: For a list of the offenses specified in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 (aka “super strikes”) and listed in Penal Code section 290(c), see this IPG
memo, section III-5-B at pp. 119-121.
82
Storton observation: Keep in mind that the ability to reduce a Penal Code section 459 1st degree
residential burglary to a felony Penal Code section 496 as part of a plea bargain is affected by Proposition
47. If the value of the property is not over $950 and the defendant does not have a conviction for a
registerable sex offense or a super strike, the defendant is subject to a misdemeanor punishment only.
However, the defendant may wish to stipulate that the value of the property exceeds $950 so that he/she
can be convicted of felony Penal Code section 496 violation rather than a Penal Code section 459-1st, which
is a serious felony strike.
LA DA observation: As receiving or withholding multiple pieces of property at the same time amounts to
one count of receiving stolen property, the value of the property may be aggregated. (See People v.
Mitchell (2008) 164 Cal.App.4th 442, 461—462.)
A.
The statutory language of Penal Code section 496
As modified by Proposition 47, Penal Code section 496(a) now, in pertinent part, provides:
“(a) Every person who buys or receives any property that has been stolen or that has been obtained
in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or
who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the
owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a
county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170.
However, if the value of the property does not exceed nine hundred fifty dollars
($950), the offense shall be a misdemeanor, punishable only by imprisonment in a
county jail not exceeding one year, if such person has no 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.” (Emphasis added by IPG.)
*Editor’s note: Penal Code section 492 states: “If the thing stolen consists of any evidence of debt, or
other written instrument, the amount of money due thereupon, or secured to be paid thereby, and
remaining unsatisfied, or which in any contingency might be collected thereon, or the value of the
property the title to which is shown thereby, or the sum which might be recovered in the absence thereof,
is the value of the thing stolen.”
83
B.
What is the impact of Proposition 47 on Penal Code section 496d
(buying or receiving a stolen motor vehicle) or other section “496-like”
statutes?
Penal Code section 496d makes it unlawful to buy, receive, conceal, sell, withhold, etc., motor
vehicles, trailer, construction equipment, or vessels that have been stolen or been obtained in any
manner constituting theft or extortion, knowing the property to be stolen or obtained. It is a
wobbler carrying a punishment of 16, 2, or 3 years imprisonment pursuant to section 1170(h). (Pen.
Code, § 496d.)
Penal Code section 496d should not be impacted by Proposition 47. Unlike 490.2, which generically
applies to all crimes defining “grand theft” and thus impacts other statutes, section 496 does not
purport to govern punishment for offenses defined in other statutes such as section 496d. All
Proposition 47 did was alter the potential punishment for persons convicted specifically of Penal
Code section 496. If section 496 was a generic statute like section 490.2, it would have governed the
penalty for violating section 496d (or any other statute involving receipt or possession of stolen
property) even before the passage of Proposition 47 - which it clearly did not.
In People v. Nichols (2016) 244 Cal.App.4th 681 [rev. gtd, dkt #S233055], the defendant claimed
section 1170.18 should be construed to apply to a felony conviction for violating section 496d where
the value of the stolen motor vehicle was $950 or because section 496d is a “parallel” offense of
vehicle theft (§ 490.2(a)) and receiving stolen property (§ 496(a)); and the voters “intended that all
theft related offenses be treated as misdemeanors where the value of the property is less than $950.”
(Id. at p. 687.) Alternatively, the defendant contended that the rule of lenity required any
ambiguity in section 1170.18 to be “liberally interpreted to effectuate Proposition 47’s purpose of
‘reducing prison spending on non-violent crimes,’ by treating all property related offenses as
misdemeanors where the property has a value of $950 or less. (Ibid.) Finally, the defendant argued
that failure to apply section 1170.18 to section 496d offenses would violate equal protection because
defendants guilty of violating section 496d are “similarly situated with respect to persons guilty of
stealing a vehicle of the same value (section 490.2) and persons guilty of receiving other stolen
property of the same value (section 496).” (Id. at p. 689.)
The Nichols court rejected the first argument by finding that where the Legislature expressly
includes certain criminal offenses in a statute, the legislative intent is to exclude offenses that were
not mentioned; and, thus, the absence of reference to section 496d in section 1170.18 meant section
84
496d was not impacted by section 1170.18. (Id. at p. 688 [and noting as well that a contrary
interpretation would run afoul of the rule that courts may not “add to the statute or rewrite it to
conform to some assumed intent not apparent from that language”].) The Nichols court rejected
the second argument because it did not find there was any “ambiguity in the language of section
1170.18, subdivisions (a) and (b) with respect to the theft related offenses that are eligible for
reclassification and resentencing” and therefore, the rule of lenity did not apply. (Ibid.) Lastly, the
Nichols court rejected the equal protection argument because it found there were three plausible
reasons (i.e., rational bases) for treating defendants convicted of section 496d differently than
persons convicted of theft or receiving stolen property under $950: (i) the offense of buying or
receiving a stolen motor vehicle may have greater consequences for the victims than other theft
related offenses because owners of motor vehicles are often dependent on their vehicles for
transportation to work and school, and for obtaining the necessities of life”; (ii) “unlike other forms
of stolen property, stolen vehicles are often dismantled and sold for parts in ‘chop shops’ which can
raise their worth above retail value”; and (iii) it does not violate equal protection to allow a
prosecutor to have the option of charging under one statute and not another so long as the
prosecutor is not deliberately singling out a defendant on the basis of some arbitrary and unjustified
reason that bears no rational relationship to legitimate law enforcement interests. (Id. at p. 691.)
In People v. Peacock (2015) 242 Cal.App.4th 708 [rev. gtd, docket # S230948], after Proposition
47 passed, the defendant sought re-designation of his felony conviction for receiving a stolen motor
vehicle in violation of section Penal Code section 496d as a misdemeanor petty theft. The petition
was denied. On appeal the defendant argued “that receipt of a stolen vehicle valued at less than
$950 is a theft-related offense that should be subsumed in the broad definition of section 490.2.”
(Id. at p. 712.) The appellate court rejected defendant’s argument, noting that section 1170.18(a)
separately listed section 496 as an offense eligible for reclassification rather than including it under
the new umbrella definition of theft in section 490.2. The court considered that “strong evidence
that the voters did not consider receiving stolen property as a form of theft.” (Ibid.) The Peacock
court also rejected defendant’s argument that failing to reduce the conviction for violating section
496d would violate equal protection. The court observed that “equal protection of the law is denied
only where there is no ‘rational relationship between the disparity of treatment and some legitimate
governmental purpose’” and there were several reasons that could conceivably support treating the
offense of receiving stolen vehicles differently from theft offenses and from the offense of receiving
other stolen property, including: (i) “unlike other forms of stolen property, stolen vehicles are often
dismantled and sold for parts in ‘chop shops’ which can raise their worth above retail value”; and (ii)
85
“owners of vehicles are typically dependent on those vehicles for necessities, which is not so
frequently the case with theft of other forms of property.” (Id. at p. 713.)
A similar result was reached in People v. Garness (2015) 241 Cal.App.4th 1370 [rev. gtd, docket #
S231031], which held that “Proposition 47 left intact the language in section 496d that makes a
violation of that statute punishable as either a felony or misdemeanor” and [b]ased on the statutory
language alone,” the defendant fell outside the purview of Proposition 47 since defendant “could not
be resentenced in accordance with any of the sections added or explicitly amended by Proposition
47.” (Id. at p. 1374, emphasis added by IPG.) The defendant argued his commitment offense is very
similar to section 496 and since he could have been punished for the offense of receiving stolen
property valued $950 or less under that section (i.e., because Penal Code section 496 applies to the
receipt of “any property” and a motor vehicle falls into the category) and because Proposition 47 s
explicitly reduced violations of section 496 to misdemeanors, Proposition 47 should be interpreted
to apply also to convictions under section 496d. (Id. at pp. 1373-1374.)
The Garness court
rejected this argument, refusing to presume that “the absence of any explicit grant of relief to those
convicted under section 496d was an omission or unintentional ambiguity in Proposition 47.” (Id.
at p. 1374 [and noting, as well, there is “nothing absurd or irrational about the legislative
determination that receiving stolen property of very low value should, as a general matter, be
punishable as a misdemeanor pursuant to section 496, while retaining the statutory option of
punishing the receipt of a stolen motor vehicle, even one of very low value, as a felony violation of
section 496d.”].)
Finally, in People v. Orozco (2016) 244 Cal.App.4th 65 [reh'g gtd], the court rejected defendant’s
argument that “because section 496, subdivision (a) makes the receipt of any stolen property worth
less than $950 a misdemeanor, and that a vehicle is a form of property, his conviction under section
496d for receipt of a stolen vehicle must be reduced to a misdemeanor.” (Id. at p. 73.) The Orozco
court held the value of the vehicle has no bearing on defendant’s eligibility for resentencing because:
(i) section 496d is not mentioned in Proposition 47 and the rules of statutory interpretation
counseling against applying the statute in circumstances that are not mentioned where similar
circumstances are expressly mentioned and against adding words to a statute to conform to the
intent of the statute and (ii) the defendant’s interpretation “would render other statutes that deal
with receiving certain kinds of stolen property superfluous” because “only the value of the property
received would matter, rather than the type of property received.” (Id. at pp. 71, 73-74.)
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The analysis used to deny resentencing to the defendant in the above four cases would equally allow
prosecutors to charge new Penal Code section 496d offenses based on the receipt of a vehicles worth
less than $950. That being said, none of the aforementioned cases are citeable. Nichols has been
taken up for review by the California Supreme Court pending consideration and disposition of a
related issue in People v. Romanowski, (2015) 242 Cal.App.4th 151 [rev. gtd, dkt # S231405].
(See Nichols, dkt # S233055.) Peacock has been taken up for review by the California Supreme
Court pending consideration and disposition of a related issue in People v. Cuen (2015) 241
Cal.App.4th 1227 [rev. gtd, dkt # S231107] and People v. Romanowski (2015) 242 Cal.App.4th
151 [rev. gtd, dkt # S231405]. (See Peacock, dkt # S230948.) Garness was taken up for review
by the California Supreme Court and further action was deferred pending consideration and
disposition of a related issue in People v. Romanowski, docket # S231405. (See Garness, dkt #
S231031) And People v. Orozco (2016) 244 Cal.App.4th 65 [rhg. gtd] is no longer citeable because
rehearing was granted.
*Editor’s note: Cuen and Romanowski actually present a slightly different issue than posed in
Nichols, Peacock, and Garness. The question in Cuen and Romanowski is: “Does Proposition 47
("the Safe Neighborhoods and Schools Act"), which reclassifies as a misdemeanor any grand theft involving
property valued at $950 or less (Pen. Code, § 490.2), apply to theft of access card information in violation of
Penal Code section 484e, subdivision (d)?
For similar reasons, crimes such as Penal Code section 496a (which makes it unlawful for junk or
metal dealers to buy various metals which the dealer should know are ordinarily used by public
utilities without using due diligence to ascertain whether the seller is authorized to sell the items) or
Penal Code section 496b (which makes it unlawful for second-hand book dealers to buy books or
other documents valued at more than $50 which belong to a library, college, or university and are so
marked without using due diligence to ascertain whether the seller is authorized to sell the items)
should also be viewed as outside the scope of Proposition 47. (See People v. Orozco (2016) 244
Cal.App.4th 65, 74 [reh'g gtd].)
C. Kathy Storton’s Penal Code section 496 chart
Value is $950 or Less & Defendant Has No Specified Prior:
A misdemeanor violation of PC § 496 is chargeable
Value is $950 or Less & Defendant Has a Specified Prior:
A felony violation of PC § 496 is chargeable.
Value is Over $950, Regardless of Priors:
A felony violation of PC § 496 is chargeable
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9.
The impact of Prop 47 on possession of cocaine, heroin and other
drugs subject to Health & Safety Code Sections 11350
Proposition 47 amended Health and Safety Code section 11350. Health and Safety Code section
11350(a) prohibited (and still does prohibit) possession of controlled substances such as cocaine,
cocaine base, heroin, codeine, and oxycodone. Section 11350(b) prohibited possession of controlled
substances such as mecloqualone, methaqualone, or GHB (aka “the date rape drug”). Before
Proposition 47, a violation of section 11350(a) was a straight felony and the defendant was eligible
to serve a section 1170(h) sentence. Subdivision (b) was a wobbler.
Proposition 47 amended subdivision (a) of section 11350 so that the crime is now a misdemeanor
unless the defendant has been convicted of a crime requiring sex offender registration or of a super
strike. If the defendant has been convicted of a crime requiring sex offender registration or of a
super strike, the crime remains a straight felony.
*Editor’s note: For a list of the offenses specified in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 (aka “super strikes”) and listed in Penal Code section 290(c), see this IPG
memo, III-5-B at pp. 119-121.
Proposition 47 deleted subdivision (b) of section 11350 but relisted those drugs so that they are now
prohibited by subdivision (a). Other subdivisions of section 11350 were re-lettered to account for
the deletion.
Proposition 47 did not make any changes to any other sections relating to the drugs subject to
section 11350, such as those prohibiting the sale or possession for sale of cocaine, heroin, etc.,.
A.
Statutory language of Health and Safety Code section 11350(a)
As amended by Proposition 47, section 11350(a) states:
(a) Except as otherwise provided in this division, every person who possesses (1) any controlled
substance specified in subdivision (b), (c), (e), or paragraph (1) of subdivision (f) of Section 11054,
specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in
subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any
controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the
written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this
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state, shall be punished by imprisonment in a county jail for not more than one year,
except that such person shall instead be punished pursuant to subdivision (h) of Section 1170 of the
Penal Code 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 of the Penal Code or for an
offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.
(Emphasis added by IPG.)
B.
If a defendant has been convicted of a crime requiring sex offender
registration or of a superstrike, why does a violation of section 11350(a)
remain a straight felony instead of a wobbler?
Section 11350(a) provides a defendant who possesses one of the designated controlled substances
“shall be punished by imprisonment in a county jail for not more than one year, except that such
person shall instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if
that person has one or more prior convictions” for an offense requiring sex offender
registration or for a superstrike.” (Emphasis added by IPG.)
In contrast, other provisions of Proposition 47 (e.g., Pen. Code §§ 459.5, 473, 476a(b), and 490.2;
Health & Saf. Code § 11357(a) and 11377(a)) use the phrase “may instead be punished” or “may be
punished” pursuant to Penal Code section 1170(h) if the defendant has a specified prior. If there
was any doubt regarding whether a defendant with a conviction requiring sex offender registration
or for a super strike who is subsequently convicted of section 11350(a) is eligible for misdemeanor
punishment, this contrast in phrasing should quell that doubt.
C. Kathy Storton’s Health and Safety Code section 11350 chart
Defendant Has No Specified Prior:
The H&S section 11350(a) violation is a misdemeanor.
Defendant Has a Specified Prior:
The H&S 11350 violation is a non-alternative felony.
10. The impact of Prop 47 on possession of marijuana and hashish
(Health & Safety Code Sections 11357)
Proposition 47 amended Health and Safety Code section 11357. Health and Safety Code section
11357(a) prohibits the possession of concentrated cannabis. Before Proposition 47, a violation of
Health and Safety Code section 11357(a) was a wobbler and the defendant was eligible to serve a
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section 1170(h) sentence in county jail. Proposition 47 amended subdivision (a) of section 11357 so
that the crime of possessing concentrated cannabis is now a misdemeanor unless the defendant has
been convicted of a crime requiring sex offender registration or of a super strike. If the defendant
has been convicted of a crime requiring sex offender registration or of a super strike, the crime
remains a wobbler.
The other subdivisions of section 11357 relating to possession of marijuana have not been changed.
Possession of less than 28.5 grams of marijuana other than concentrated cannabis remains an
infraction. (Health & Saf. Code, § 11357(b).) Possession of more than 28.5 grams of marijuana other
than concentrated cannabis remains a misdemeanor with a six-month county jail top. (Health & Saf.
Code, § 11357(c).) Possession of less than 28.5 grams of marijuana other than concentrated cannabis
by an adult on school grounds remains a misdemeanor with a ten-day top. (Health & Saf. Code, §
11357(d).) Possession of less than 28.5 grams of marijuana other than concentrated cannabis by a
juvenile on school grounds remains a $250 for a first offense and a fine and commitment to a
juvenile facility for no more than 10 days for subsequent offense. (Health & Saf. Code, § 11357(e).)
A defendant convicted of cultivation of marijuana in violation of Health and Safety Code section
11358 is not eligible for reduction of his conviction to a felony, even though the cultivation may have
been for personal use. (People v. Descano (2016) 245 Cal.App.4th 175, 183-185 [rev. filed].)
A.
Statutory language of Health and Safety Code section 11357(a)
As amended by Proposition 47, Health and Safety Code section 11357(a) states:
“(a) Except as authorized by law, every person who possesses any concentrated cannabis shall be
punished by imprisonment in the county jail for a period of not more than one year or by a fine of
not more than five hundred dollars ($500), or by both such fine and imprisonment, except that such
person may instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code 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 of the Penal Code or for an offense requiring
registration pursuant to subdivision (c) of Section 290 of the Penal Code.”
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B.
Kathy Storton’s Health and Safety Code section 11357 chart
Defendant Has No Specified Prior:
The section 11357(a) violation is a misdemeanor.
Defendant Has a Specified Prior:
The section 11357(a) violation is a wobbler, chargeable as a felony.
11.
The impact of Prop 47 on possession of methamphetamine, PCP,
and other drugs subject to Health & Safety Code Section 11377
Proposition 47 amended Health and Safety Code section 11377. Health and Safety Code section
11377(a) prohibits possession of controlled substances such as methamphetamine and phencyclidine
(PCP); and it now also prohibits controlled substances previously prohibited by subdivision (b).
Before the passage of Proposition 47, a violation of section 11377(a) was a wobbler. Proposition 47
amended subdivision (a) so that it is only a misdemeanor unless the defendant has been convicted of
a crime requiring sex offender registration or of a super strike – in which case a violation of
subdivision (a) remains a wobbler. (People v. Davis 2016 WL 1242634, *3; People v. Ruff
(2016) 244 Cal.App.4th 935, 941 [rev. filed].)
Before the passage of Proposition 47, a violation of subdivision (b) of section 11377 was a straight
misdemeanor. Section 11377(b), which had four subsections, prohibited possession of controlled
substances such as anabolic steroids and chorionic gonadotropin (§ 11377(b)(1)), ketamine (§ 11377
(b)(2)), khat and cathinone (§ 11377(b)(3)), and cathine (§ 11377(b)(4)). Proposition 47 deleted
subdivision (b) and transferred the prohibition against possession of those substances to subdivision
(a). Specifically, khat and cathinone are covered in section 11377(a) because there is an existing
cross-reference to section 11055(d); and cathine, ketamine, anabolic steroids, and chorionic
gonadotropin are covered in section 11377(a) because there is existing cross-reference to “. . . any
controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic
drug . . .”
*Editor’s note: For defendants convicted of a crime requiring sex offender registration or of a super
strike, Proposition 47 effectively increased the potential exposure for possession of the controlled
substances previously listed in subdivision (b). Before Proposition 47 passed, those defendants were only
subject to misdemeanor punishment; now they are subject to felony punishment.
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DDA Kathy Storton observation: If any of these drugs is a narcotic, possession without a prescription
would still be illegal pursuant to H&S 11350(a), which prohibits “ . . . any controlled substance classified in
Schedule III, IV, or V which is a narcotic drug . . . unless upon the written prescription of a physician,
dentist, podiatrist, or veterinarian licensed to practice in this state[.]”
A.
Statutory language of Health and Safety Code section 11377(a)
As amended by Proposition 47, section 11377(a) states:
(a) Except as authorized by law and as otherwise provided in subdivision (b) or Section 11375, or in
Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions
Code, every person who possesses any controlled substance which is (1) classified in Schedule III, IV,
or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except
paragraphs (13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision
(c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5)
specified in subdivision (d), (e), or (f) of Section 11055, unless upon the prescription of a physician,
dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by
imprisonment in a county jail for a period of not more than one year , except that such
person may instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code 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 of the Penal Code or for an offense requiring
registration pursuant to subdivision (c) of Section 290 of the Penal Code.” (Emphasis added.)
B.
Kathy Storton’s Health and Safety Code section 11377a chart
Defendant Has No Specified Prior:
The section 11377(a) violation is a misdemeanor.
Defendant Has a Specified Prior:
The section 11377(a) violation is a misdemeanor.
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12. Does Proposition 47 apply to the crime of conspiracy in violation of
Penal Code section 182 if the conspiracy is to commit one of the
offenses (e.g., petty theft) that is covered by Proposition 47?
Proposition 47 does not apply when the crime charged is conspiracy in violation of Penal Code
section 182 even though the crime that is the target of the conspiracy is one of the crimes subject to
reduction to a misdemeanor under Proposition 47. (See People v. Segura (2015) 239 Cal.App.4th
1282, 1284.)
In People v. Segura (2015) 239 Cal.App.4th 1282, the defendant, pursuant to Penal Code section
1170.18, sought resentencing of his convictions for second degree burglary in violation of Penal Code
section 459-2nd and for conspiring to commit petty theft in violation of Penal Code section 182. Both
the offenses were based on defendant entering a store with the intent to steal. The trial court
granted the requested reduction on the second degree burglary conviction, but denied it as to the
conspiracy conviction. (Id. at pp. 1283-1284.) On appeal of the denial, the defendant argued that he
was entitled to a reduction on the conspiracy charge because granting his request would comport
with the “spirit” of the Proposition 47. (Ibid.) The appellate court rejected this argument, finding
that the crime of conspiracy was not one of the crimes specified in section 1170.18 and thus a court
had no authority to reduce the felony conviction for conspiracy. Moreover, the appellate court
found that it was not absurd to draw a distinction between the crime of petty theft and the crime of
conspiracy since “[c]rimes committed pursuant to a conspiracy present a greater evil than crimes
committed by an individual.” (Id. at p. 1284.)
*Editor’s note: The holding in Segura should apply regardless of whether the crime at issue is a
conspiracy to commit petty theft or any of the other crimes specifically designated in section 1170.18.
Moreover, its language that section 1170.18 is unambiguous insofar as it makes it clear it only applies to
crimes specifically designated (Segura at p. 1184) should be useful when defendants seek to apply
Proposition 47 to any crime not specifically designated in section 1170.18
13. Does equal protection require application of Proposition 47 to
offenses not designated in Proposition 47?
There are many offense that were not included in Proposition 47 which are similar in nature or
egregiousness to the offenses subject to Proposition 47. This does not mean, however, equal
protection principles require application of Proposition 47 to these similar offenses. “Nothing in the
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Constitution[ ] require[s] a State to fix or impose any particular penalty for any crime it may define
or to impose the same “proportionate” sentences for separate and independent crimes.’” (People v.
Rhodes (2005) 126 Cal.App.4th 1374, 1384-1385, citing to Williams v. Oklahoma (1959) 358
U.S. 576, 586; People v. Descano (2016) 245 Cal.App.4th 175, 182 [rev. filed] [“Persons convicted
of different crimes are not similarly situated for equal protection purposes.”]; People v.
Wilkinson (2004) 33 Cal.4th 821, 838 [under rational basis scrutiny, “neither the existence of two
identical criminal statutes prescribing different levels of punishments, nor the exercise of a
prosecutor’s discretion in charging under one such statute and not the other, violates equal
protection principles.”].)
Thus, many courts have rejected equal protection challenges based on claims that defendants
committing offenses not expressly designated in Proposition 47 should be given similar treatment
because the offenses not expressly designated are “parallel” or very similar to the offenses mentioned
in Proposition 47. At least where the offense is not implicitly held to be covered by an offense that is
mentioned (see this IPG memo, section I-5 at pp 38-72), these requests have repeatedly been
rejected. (See e.g., People v. Descano (2016) 245 Cal.App.4th 175, 181-182 [rev. filed] [rejecting
equal protection argument that defendant convicted of cultivation of marijuana (Health & Saf. Code,
§ 11358) was similarly situated to defendant convicted of possessing marijuana (Health & Saf. Code,
§ 11358)]; People v. Nichols (2016) 244 Cal.App.4th 681 [rev. gtd, dkt #S233055] [rejecting equal
protection argument that defendants convicted of theft of vehicles (Pen. Code, § 490.2) or receiving
stolen property (Pen. Code, § 496) are similarly situated to defendant convicted of receiving a stolen
vehicle (Pen. Code, § 496d)]; People v. Peacock (2015) 242 Cal.App.4th 708, 712-713 [rev. gtd,
docket # S230948] [same]; People v. Acosta (2015) 242 Cal.App.4th 521 [rejecting equal
protection challenge made by a defendant claiming defendants convicted of attempted car burglary
involving property under $950 are similarly situated to defendants convicted of thefts of under
$950].)
Another type of equal protection challenge raised by defendants is based on claim that refusing to
apply the changes instituted by Proposition 47 retroactively in certain circumstances violates equal
protection because it treats two similarly situated groups of defendants differently based on whether
they committed their offense before or after Proposition 47. That type of equal protection challenge
is discussed in this IPG memo at section VI-6 at p. 200.
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14. Does the intent behind Proposition 47 justify its application to
offenses not mentioned in Proposition 47?
Defendants convicted of crimes not expressly mentioned in Proposition 47 not only claim failure to
apply Proposition 47 to their cases violates equal protection, they also claim it is required by the
intent or spirit behind Proposition 47. This argument has also repeatedly been rejected. (See e.g.,
People v. Ruff (2016) 244 Cal.App.4th 935, 948 [rev. filed] [noting, inter alia, that the absence of
reference to section 667.5 in Proposition 47 provided a basis for finding Proposition 47 was not
intended to prevent a new offense from being enhanced by a section 667.5(b) prior felony conviction
where the defendant obtained a reduction of the prior felony conviction to a misdemeanor after
defendant was convicted and sentenced on the new offense]; People v. Haywood (2015) 243
Cal.App.4th 515 [198 Cal.Rptr.3d 40, 44-45] [rev. gtd, dkt # S232250] [rejecting application of
Proposition 47 to violation of Vehicle Code section 10851 because “in the face of unambiguous
statutory language we cannot rely on an inchoate legislative purpose as a basis for departing from
the text”]; People v. Carrea (2016) 244 Cal.App.4th 966, 974, 977 [rev. filed] [declining to rely on
voters’ intent because “the language of section 1170.18 is plain, clear, and unambiguous that it does
not apply retroactively to allow the redesignation, dismissal, or striking of a sentence enhancement
imposed in a pre-Act final judgment based on an underlying felony conviction subsequently
redesignated a misdemeanor under section 1170.18”]; People v. Acosta (2015) 242 Cal.App.4th
521, 526 [the fact Proposition 47 is supposed to be given a liberal construction is not a basis to
include attempted vehicular burglary (§ 664/459), an offense section 1170.18 unambiguously omits];
People v. Gonzales (2015) 242 Cal.App.4th 35, 40 [rev. gtd, dkt # S231171] [rejecting argument
that section 1170.18 allows for resentencing for other theft offenses involving property under the
threshold of $950 such as burglary even though burglary is not specified in the statute]; People v.
Segura (2015) 239 Cal.App.4th 1282, 1284 [rejecting argument that court should consider the
“spirit evidenced by the voters in enacting Proposition 47” in finding conspiracy to commit petty
theft in violation of Penal Code section 182 was outside the scope of Proposition 47].) Though, as
indicated, several of these decisions have been taken up for review by the California Supreme Court.
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15. Must defendants with convictions for registerable sex offenses or
super strikes who are convicted of offenses reduced by Proposition
47 serve their time in county jail or can they serve their time in state
prison?
Throughout Proposition 47 it is often stated that a defendant with an offense listed in Proposition 47
may still be punished pursuant to Penal Code section 1170(h) as a felon if the defendant has a prior
conviction specified in Penal Code section 667(e)(2)(C)(iv) (i.e., a super strike) or a conviction for an
offense listed in Penal Code section 290(c) - even if the value of the property involved is $950 or less.
However, this does not mean that the defendant will be able to serve his time in county jail rather
than state prison. This is because Penal Code section 1170(h)(3) provides an exception to the general
rule that defendants convicted of offenses punishable pursuant to section 1170(h) are eligible to
serve their time in county jail instead of state prison. And those defendants falling under the
exception identified in section 1170(h)(3) sometimes overlap with the group of defendants who have
a super strike and completely overlap with the group of defendants who have a conviction for a crime
listed in section 290(c).
Specifically, section 1170(h)(3) states: “Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious felony described in subdivision (c) of
Section 1192.7 or a prior or current conviction for a violent felony described in subdivision (c) of
Section 667.5, (B) has a prior felony conviction in another jurisdiction for an offense that has all the
elements of a serious felony described in subdivision (c) of Section 1192.7 or a violent felony
described in subdivision (c) of Section 667.5, (C) is required to register as a sex offender pursuant to
Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime and as
part of the sentence an enhancement pursuant to Section 186.11 is imposed, an executed sentence for
a felony punishable pursuant to this subdivision shall be served in state prison.”
Therefore, a defendant charged with a felony who has a Proposition 47 disqualifying prior will not
qualify for “realignment” sentencing in most cases because all but two of the specified super strikes
for purposes of Proposition 47 are also the kinds of convictions that disqualify a defendant from
serving time in county jail pursuant to section 1170(h). The two super strikes that do not disqualify a
defendant from serving his sentence in county jail (instead of state prison) are: Penal Code sections
653f [solicitation to commit murder] and 11418(a)(1) possession of a weapon of mass destruction].
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16. What prior convictions will disqualify a defendant from being
prosecuted solely as a misdemeanant even when the defendant
commits new crimes listed in Proposition 47?
The types of convictions that will disqualify a defendant from being prosecuted solely as a
misdemeanant even when the defendant commits new crimes are described in this IPG memo,
section III-5-B at pp. 119-121.
17.
Must the prior convictions that disqualify a defendant from
receiving a misdemeanor sentence (i.e., convictions for crimes
listed in Penal Code section 290(c) or super strikes) be pled and
proved?
Because having a conviction a crime listed in Penal Code 667(e)(2)(C)(iv) (aka a “super strike”) or a
conviction for a crime listed in Penal Code section 290(c) elevates what would otherwise be a
misdemeanor crime to a felony, the existence of those convictions should be pled and proved – even
at the preliminary examination. (See Thompson v. Superior Court (2001) 91 Cal.App.4th 144,
158 [“Where a prior conviction elevates the charged offense to a felony, proof of that prior conviction
at the preliminary hearing is necessary to determine whether the charged offense is a misdemeanor
or a felony”]; see also People v. Casillas (2001) 92 Cal.App.4th 171, 174 [the three prior
convictions required to turn what would otherwise be a misdemeanor DUI conviction into a felony
pursuant to Vehicle Code 23550 must be proved at a preliminary hearing]; but see People v.
Robinson (2004) 122 Cal.App.4th 275, 281 [in prosecution for violation of Penal Code section
484/666, evidence supporting existence of prior conviction need not be adduced at preliminary
hearing and statute need not be specifically pleaded because section 666 simply establishes alternate
penalty, not enhancement].)
18. If a defendant commits two new offenses, one of which is
Proposition 47 eligible and the other is a disqualifying offense, and
then is convicted of both offenses simultaneously, is the court still
limited to sentencing defendant to a misdemeanor on the
Proposition 47 eligible offense?
No case has yet to decide whether a defendant who is charged with two new offenses, one of which is
Proposition 47 eligible and the other of which is a disqualifying offense, is disqualified from
obtaining the benefits of Proposition 47’s reduction of certain felonies to misdemeanors. The
language in the subdivisions changing certain offenses from felony wobblers to straight
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misdemeanors except for specified defendants is largely the same throughout Proposition 47. The
various offenses are held to be punished as misdemeanors except if the person “has one or more
prior convictions for [a superstrike or offense requiring sex offender registration].” (See e.g.,
Health & Saf. Code, §§ 11350(a), 11357(a), 11377(a); Pen. Code, §§ 473(b), 476a(b), 490.2(a).)
Arguably, if the defendant is convicted of the disqualifying offense at the same time as the new
Proposition 47 eligible offense, then by the time defendant is being “punished” for the Proposition 47
eligible offense, he has a disqualifying offense. However, this interpretation is inconsistent with the
normal rules that for a prior conviction to have an impact on the defendant, it must occur before the
defendant commits the offense being impacted. (See People v. Flood (2003) 108 Cal.App.4th
504, 506, 508; People v. Rojas (1988) 206 Cal.App.3d 795, 802; People v. Shivers (1986) 181
Cal.App.3d 847,850.)
19. If a defendant has a juvenile adjudication that qualifies as a
superstrike offense or a registerable sex offense, is the defendant
still disqualified from the benefits of Proposition 47?
Although defendants with prior convictions for a super strike offense or for a crime requiring sex
offender registration may still be prosecuted as felons for crimes that Proposition 47 has reduced to
misdemeanors (see e.g., Pen. Code, §§ 459.5(a), 473(b), 476a(b), 490.2(1), 496(a), and 666(a),
Health & Saf. Code, §§ 11350(a), 11357(a), and 11377(a)), Proposition 47 makes no mention of prior
juvenile adjudications allowing a defendant to be prosecuted as a felon for crimes reduced to
misdemeanors by Proposition 47. Under Welfare and Institutions Code section 203, “An order
adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for
any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding.”
Accordingly, there is a reasonable argument that defendant’s juvenile adjudication for an offense
(even one that qualifies as a “strike” under the Three Strikes law) will not necessarily disallow the
defendant from being prosecuted as a misdemeanant for a crime reduced under Proposition 47.
On the other hand, in the leading and often quoted treatise on Proposition 47 by Judges Couzens and
Bigelow, the authors make a fairly compelling argument that juvenile adjudications which qualify as
“superstrikes” will exclude a defendant from the benefits of Proposition 47. (See Couzens &
Bigelow, Proposition 47 “The Safe Neighborhoods and Schools Act” (Feb. 2016) at pp. 17-18
[http://www.courts.ca.gov/documents/Prop-47-Information.pdf].) The argument largely hinges
upon the fact that Penal Code section 1170.18(i) defines the disqualifying prior convictions (i.e.,
superstrikes) as “convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph
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(2) of subdivision (e) of Section 667.” That subdivision, in turn, defines the designated disqualifying
prior conviction as a “prior serious and/or violent felony conviction, as defined in subdivision (d) of
this section” (i.e., Penal Code section 667(d)) and subdivision (d) of 667 specifically includes
designated juvenile adjudications.
20. The impact of Proposition 47 on arrests and obtaining search
warrants
A.
How does Prop 47 impact the ability of officers to make arrests?
The scope of an officer’s authority to make warrantless arrests for crimes amounting to felonies is
broader than the scope of an officer’s authority to make warrantless arrests for crimes amounting to
misdemeanors. By changing the nature of certain crimes from felony wobblers (i.e. crimes
prosecutable as a misdemeanor or a felony)* to straight misdemeanors, Proposition 47 restricts the
scope of an officer’s authority to make a warrantless arrest for those crimes.
*Editor’s note: *For purposes of determining whether an officer may lawfully arrest a suspect, wobblers
(i.e. a crime prosecutable as a misdemeanor or a felony) are viewed as felonies. For example, an officer
may arrest a suspect when the officer has probable cause to believe the suspect committed an offense that
is a wobbler– regardless of whether the crime was committed in their presence. (See Levin v. United
Airlines (2008) 158 Cal.App.4th 1002, 1017, fn. 19; People v. Cannon (1957)148 Cal.App.2d 163, 167;
People v. Graff (1956) 144 Cal.App.2d 199, 206.)
Among the crimes that are no longer felony wobblers (unless the suspect has a prior conviction for a
super strike or a registerable sex offense): Grand thefts from the person of property worth $950 or
less; grand thefts of firearms or automobiles worth $950 or less; forgeries of documents such as
checks or money orders of $950 or less; passing bad checks if the amount of the checks totals $950
or less; receiving or possessing stolen property worth $950 or less; and straight possession of
controlled substances.*
*Editor’s note: For a list of the offenses designated as “super strikes” or requiring registration under
Health and Safety Code section 290(c), see this IPG memo, section III-5-B at pp. 119-121.) For a
discussion of the various offenses reduced to misdemeanors from wobblers by Proposition 47, see this IPG
memo, sections I-3-11 at pp. 16-92
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Penal Code section 836(a), in relevant part, authorizes warrantless arrests* when: “(1) The officer
has probable cause to believe that the person to be arrested has committed a public offense in the
officer’s presence. ¶ (2) The person arrested has committed a felony, although not in the officer's
presence. ¶ (3) The officer has probable cause to believe that the person to be arrested has
committed a felony, whether or not a felony, in fact, has been committed.” (Pen. Code, § 836(a).)
*Editor’s note: Section 836 also authorizes warrantless arrests for crimes not committed in the officer’s
presence in certain circumstances involving violations of domestic violence, protective or restraining
orders, or gun possession. (See Pen. Code, § 836(c),(d), &(e).) Penal Code section 836.1 authorizes
warrantless arrests for assaults and batteries on certain emergency personnel. Moreover, the “in the
presence” requirement does not apply to a juvenile who commits a misdemeanor. (In re Samuel V.
(1990) 225 Cal.App.3d 511.) We do not discuss these types of arrests as none were impacted by Proposition
47.
The most significant impact of reducing a crime from a felony to a misdemeanor is the loss of the
ability to make a warrantless arrest for a crime committed outside the presence of an officer (Pen.
Code, § 836(a)(2)&(3)). Now, if an officer wishes to take a suspect into custody for a misdemeanor
committed outside the presence of the officer for a crime reduced to misdemeanor by Proposition 47,
the arrest generally must be made pursuant to Penal Code section 837.*
*Editor’s note: Penal Code section 837 permits a private person to arrest another for “1. For a public
offense committed or attempted in his presence. ¶ 2. When the person arrested has committed a felony,
although not in his presence.¶ 3. When a felony has been in fact committed, and he has reasonable cause
for believing the person arrested to have committed it.” Penal Code section 847(a) states “[a] private
person who has arrested another for the commission of a public offense must, without unnecessary delay,
take the person arrested before a magistrate, or deliver him or her to a peace officer” and section 847(b)
provides immunity from suit for false arrest or false imprisonment arising out of an arrest for officers
acting within the scope of their authority under any of the following circumstances: ¶ (1) The arrest was
lawful, or the peace officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful. ¶
(2) The arrest was made pursuant to a charge made, upon reasonable cause, of the commission of a felony
by the person to be arrested.¶ (3) The arrest was made pursuant to the requirements of Section 142, 837,
838, or 839.” (Emphasis added by IPG.)
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B.
Can an officer make an arrest for a crime that is a felony if
committed by a defendant with a conviction for a super strike or
registerable sex offense (but is otherwise a misdemeanor) if the
officer is unaware of the suspect’s prior convictions for a super
strike or a registerable sex offense?
As noted above certain crimes (e.g., the crime of passing a bad check valued under $950, possession
of cocaine for personal use, etc.,) are only felonies if the crime is committed by a person with prior
conviction for a super strike or registerable sex offense.
Penal Code section 836(a)(3) allows an officer to arrest a suspect if the “officer has probable cause
to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has
been committed.” (Emphasis added by IPG.) However, if the officer is unaware that the person
suspected of passing the bad check, possessing cocaine, etc., has a prior conviction for a super strike
or registerable sex offense, it should be assumed section 836(a)(3) will not apply.
Penal Code section 836(a)(2) allows an officer to arrest a suspect if “[t]he person arrested has
committed a felony, although not in the officer’s presence.” (Emphasis added.) Arguably, an arrest
of a person for passing the bad check, possessing cocaine, etc., would later be deemed lawful under
this subdivision if it later was discovered the person had a prior conviction for a super strike or
registerable sex offense even if the officer was unaware of the prior conviction at the time of the
arrest. However, officers should not make an arrest for one of the crimes reduced to misdemeanors
by Proposition 47 on the off-chance the arrestee will later turn out to have a conviction converting
the misdemeanor arrest into a felony.
Bottom line: Absent statutory authorization for an arrest, an officer may incur civil liability: a
“[p]olice officer who makes an arrest without a warrant and without justification may be held civilly
liable for false arrest and imprisonment.” (Dragna v. White (1955) 45 Cal.2d 469, 471.) Thus,
officers should only arrest a suspect for one of the crimes reduced by Proposition 47 to a
misdemeanor if (i) the crime was committed in the officer’s presence; (ii) the officer is acting based
upon a citizen’s arrest; or (iii) the officer is aware of information that would render the defendant
prosecutable as a felon before the arrest is made. (But see Barry v. Fowler (9th Cir.1990) 902
F.2d 770, 772-773 [denying civil rights challenge to officer’s arrest based on probable cause even
though arrest was in violation of section 836 since the requirement that a misdemeanor must have
occurred in the officer’s presence was not grounded in the Fourth Amendment].)
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Note regarding admissibility of evidence seized from an arrest for a misdemeanor not
committed in the officer’s presence: Regardless of whether the officer incurs civil liability,
evidence seized as the result of an arrest for a misdemeanor not committed in the officer’s presence
will still be admissible in court if there was probable cause to believe a misdemeanor had been
committed. In Michigan v. DeFillippo (1979) 443 U.S. 31, the United States Supreme Court
stated that a warrantless arrest satisfies the Constitution so long as the officer has “probable cause to
believe that the suspect has committed or is committing a crime.” (Id. at 36; emphasis added by
IPG; see also Virginia v. Moore (2008) 128 S.Ct. 1598, 1605; Barry v. Fowler (9th Cir.1990)
902 F.2d 770, 772-773 [only federal constitutional requirement for a valid arrest is that it be based
on probable cause, regardless of whether it is a misdemeanor or felony].) Several California
decisions have affirmed that, pursuant to Proposition 8, so long as an officer has probable cause for
the arrest, evidence resulting from such an arrest may not be suppressed even if the offense for
which the defendant was arrested was not committed in the officer’s presence as required by Penal
Code section 836. (See People v. Donaldson (1995) 36 Cal.App.4th 532, 537; People v.
Trapane (1991) 1 Cal.App.4th Supp. 10, 14; Patterson v. Runnels (C.D.Cal. Oct 06, 2003) 288
F.Supp.2d 1092, 1103.)
C.
How does Prop 47 impact the ability of officers to obtain search
warrants?
The most significant impact that Prop 47 will have on the ability of law enforcement to obtain
warrants will be the elimination of the ability to make use of Penal Code section 1524, subdivisions
(2) and (4).
Penal Code section 1524 is the statute that describes when a search warrant may issue. Section
1524(a) provides “A search warrant may be issued upon any of the following grounds: . . .
(2) When the property or things were used as the means of committing a felony. ¶ . . .
(4) When the property or things to be seized consist of any item or constitute any evidence that tends
to show a felony has been committed, or tends to show that a particular person has committed a
felony.” (Emphasis added.)
However, subdivision (3) of section 1524 should allow for search warrants in many misdemeanor
cases without stretching the language of subdivision (3) too far. Subdivision (3) allows for warrants
to issue “[w]hen the property or things are in the possession of any person with the intent to use
them as a means of committing a public offense, or in the possession of another to whom he or she
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may have delivered them for the purpose of concealing them or preventing them from being
discovered. (Emphasis added by IPG.)
*Editor’s note: A “public offense” includes misdemeanors and even infractions. (See Pen. Code, § 16
[Crimes and public offenses include: 1. Felonies; 2. Misdemeanors; and 3. Infractions.”].)
For example, while seeking a warrant to search a home for evidence of simple drug possession is
relatively rare, should law enforcement seek to obtain a warrant for a home based on probable cause
to believe that a person has drugs in the home, subdivision (3) should allow such a search since it is
reasonable to believe that a person with unlawful contraband (e.g., drugs) in their house intends to
use the contraband as a means of committing a public offense. (See Dunn v. Municipal Court,
Eureka Judicial Dist. (1963) 220 Cal.App.2d 858, 874 [“where the possession is declared to be
unlawful by law, it is not necessary to show a specific intent to use it for the commission of a public
offense because the possession itself is the public offense”].) Alternatively, warrants could issue
based on probable cause to believe the home contains drug paraphernalia, i.e., the means to commit
the public offense of being under the influence of drugs.
Moreover, subdivision (1) of section 1524 allows warrants to issue “[w]hen the property was stolen
or embezzled.” (Pen. Code, § 1524(a)(1).) Thus, in theft and theft-related cases, there should not be
much of an impact because warrants issued in misdemeanor theft and theft-related cases will usually
be based on probable cause to believe the location to be searched contains the stolen or embezzled
property.
II. THE IMPACT OF PROPOSITION 47 ON CRIMES NOT
YET CHARGED OR FULLY ADJUDICATED
1.
How should pending cases that have been reduced by Proposition
47 to misdemeanors, but which are currently charged as felonies,
be handled?
Prosecutor’s offices will have to decide whether to allow pending charges subject to the changes
enacted by Proposition 47 to automatically become misdemeanors by operation of law or to require a
judicial determination that the charge is now a misdemeanor. There may be some savings in time in
following the former course but the latter course has numerous benefits. For example, asking for a
judicial determination provides an opportunity to assess whether the crime charged is truly eligible
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for the reduction. Moreover, the hearing may provide an opportunity to revise charges, augment the
record, or prove the existence of a super strike or conviction for a crime requiring sex offender
registration. In addition, there are different statutory time limits on misdemeanors versus felonies.
If there is no clear point at which the felony is reduced to a misdemeanor it will be impossible to
determine whether a prosecution runs afoul of Penal Code section 1382. (See this IPG memo,
section II-3 at p. 108-109.) Finally, there may be statute of limitations issued that can be addressed.
(See this IPG memo, section II-2 at pp. 104-108.)
(Much of the following information is taken from a general office memorandum issued by Los
Angeles County Chief Deputy District Attorney Sharon J. Matsumoto on Proposition 47.)
A.
Pending cases held to answer as felonies
If a defendant was held to answer on a crime that is only a felony if the property taken was over
$950, but that fact was never proved (because it did not need to be before Proposition 47 passed) at
preliminary hearing, will the defendant be entitled to a dismissal?
Charges currently filed as felony thefts, forgeries, or other crimes impacted by Proposition 47 may
involve property actually valued over $950. However, since a specific value was not previously
required, the preliminary hearing may not contain the necessary evidence of value. The defense may
therefore bring a 995 motion. In response to such a motion, consider the following:
If a dollar amount over $950 can be proved by putting on additional evidence, move to put on
additional evidence of value pursuant to Penal Code section 995a(b)(1), which allows a court to
remand the case to the magistrate for further proceedings to correct errors alleged by the defendant
if the court finds that such errors are minor errors of omission, ambiguity, or technical defect which
can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence.
(See Caple v. Superior Court (1987) 195 Cal.App.3d 594.)
Prosecutors may be able ask the court to proceed to trial notwithstanding the lack of certain
elements in the preliminary hearing in light of the change of law. (Cf., People v. Figueroa (1993)
20 Cal.App.4th 65 [remanding case to trial court on appeal to allow prosecution to prove an element
of an enhancement that was not originally proved at trial because enhancement was amended after
trial but before the appeal was final].) If the request is granted, prosecutors should make a record as
to the underlying reasons for proceeding notwithstanding the lack of proof at the preliminary
examination.
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If a court declines to permit a remand under section 995a or allow the prosecutor to prove the
necessary amount at trial, the court may be inclined to reduce the affected charge to a misdemeanor.
Deputies should then evaluate whether to accept the misdemeanor, or to dismiss and refile the case
to prove the dollar amount.
2.
If a case was charged within the statute of limitations when it was a
felony, but is outside the statute of limitations if the crime is
designated as a misdemeanor, is the defendant entitled to a
dismissal?
Because of the rule that legislative changes that ameliorate punishment apply to all cases not yet
final absent a legislative intent that it apply prospectively (see In re Estrada (1965) 63 Cal.2d
740), a defendant facing a felony charge for a crime that, as of November 5, 2014, is no longer a
felony, is likely entitled to have that crime reduced to a misdemeanor. (See People v. Nasalga
(1996) 12 Cal.4th 784, 787 [amendments increasing amount of loss necessary to make a
misdemeanor crime a felony are applied retroactively to defendants whose convictions are not final];
In re Kirk (1963) 63 Cal.2d 761, 763 [same].)
In light of the above rule, what is the impact of Proposition 47’s reduction on a pending charge from
a felony to a misdemeanor when (1) it comes to a statute of limitations defense in a case that was
charged more than one year after the crime was committed (i.e., beyond the statute of limitations for
misdemeanors) but within three years of the commission of the crime (i.e., within the statute of
limitations for felony wobblers) and (2) it comes to the prosecution’s ability to prosecute a crime
(that was formerly a wobbler but, as of November 5, 2014, is now only a misdemeanor) when the
crime was committed more than a year ago but has not yet been charged?
Since the statute of limitations in a criminal case may be raised as a time bar at any time (see
People v. Mincey (1992) 2 Cal.4th 408, 415), will the defendant will be entitled to raise a statute of
limitations defense in either of these circumstances to preclude a prosecution? Prosecutors should
expect to be litigating this issue since it has not specifically been addressed by a California court.
It is likely the defense will attempt to rely on cases holding that where a defendant charged with a
felony neither requests nor acquiesces in the giving of instructions on a lesser included offense, the
conviction on the lesser included offense must be vacated if it is time-barred by the one-year statute
of limitations. (See e.g., People v. Beasley (2003) 105 Cal.App.4th 1078, 1090-1091; Pen. Code,
§ 805(b).)
105
Below are some arguments that can be made in response to claims that the statute of limitations bars
the prosecution of wobblers cum misdemeanors (as of 11/5/14) when those wobblers were charged
more than one year after the commission of the offense and/or have not yet been charged.
Cases Already Charged (as of November 5, 2014)
First, it should be pointed out that while the general statute of limitations for a misdemeanor is a
year (see Pen. Code, § 802(a)), the general statute of limitations for an offense that can be filed as a
felony or a misdemeanor (i.e., a wobbler) is three years. (Pen. Code, § 805(a); People v. Soni
(2006) 134 Cal.App.4th 1510, 1514.) Thus, a wobbler filed as (and prosecuted throughout as) a
misdemeanor is not time-barred, even when filed more than a year after the commission of the
offense because wobblers, no matter how filed, enjoy the three-year statute of limitations applicable
to most felonies. (People v. Soni (2006) 134 Cal.App.4th 1510, 1514; People v. Sillas (2002) 100
Cal.App.4th Supp. 1, 4; People v. Ognibene (1993) 12 Cal.App.4th 1286, 1290, fn. 1.) And this
holds true when a crime is reduced under Penal Code section 17(b) even though section
17(b) provides that a felony charge reduced to a misdemeanor is a misdemeanor “for all purposes.”
(People v. Sillas (2002) 100 Cal.App.4th Supp. 1, 3; People v. Superior Court (Ongley)
(1987) 195 Cal.App.3d 165, 169.) In other words, the ultimate punishment that is imposed for the
crime does not prevent prosecution of the crime that was, at the time it was filed, properly within the
applicable statute limitations. Nothing more than that occurs when the crime is rendered a
misdemeanor by virtue of Proposition 47 instead of by section 17(b). (Cf., this IPG outline, section
VI-5-A at p. 194 [discussing numerous cases that have looked to Penal Code section 17(b) to
interpret the ramifications of a reduction pursuant to section 1170.18].)
Second, Government Code section 9608 states: “The termination or suspension (by whatsoever
means effected) of any law creating a criminal offense does not constitute a bar to the indictment or
information and punishment of an act already committed in violation of the law so terminated or
suspended, unless the intention to bar such indictment or information and punishment is expressly
declared by an applicable provision of law.” (Govt. Code, § 9608.) Since Proposition 47 neither
impliedly nor expressly declares an intention to entirely bar prosecution of a criminal offense already
committed (i.e., an offense that was a wobbler when it was committed but post-Proposition 47 is
solely a misdemeanor), allowing the defense to raise a successful statute of limitations defense would
violate section 9608 by barring prosecution of that criminal offense.
106
*Editor’s note: Expect the defense to argue that section 9608 is not applicable since it only applies to
prevent the barring of a crime prosecuted by “indictment or information” and a misdemeanor is prosecuted
by way of “complaint.” This argument is easily countered as it is long established that while section 9608
does not mention the term “complaint,” the term “information” in that section encompasses complaints.
(Sekt v. Justice's Court (1945) 26 Cal.2d 297, 302-303; People v. Lockheed Shipbuilding &
Constr. Co. (1975) 50 Cal.App.3d Supp. 15, 35.)
Third, it is long established in case law that where a newly enacted statute reduces the punishment
for a crime that has already occurred, “the offender may be punished under the new law, and that the
repeal by amendment of the old punishment does not operate to free the offender from all
punishment.” (Sekt v. Justice's Court (1945) 26 Cal.2d 297, 302-303; accord In re Estrada
(1965) 63 Cal.2d 740, 747.) Allowing a dismissal of the charges on grounds the prosecution is
retroactively barred by the statute of limitation would run afoul of this long-standing rule of law.
Fourth, Proposition 47 was intended to reduce the penalty for certain crimes; it was not intended to
result in the wholesale dismissal of crimes. Consider the case of State v. Sampson (N.H. 1980)
120 N.H. 251 [413 A.2d 590]. In Sampson, the court addressed whether the defendant should
receive the benefit of a post-offense amendment of the theft statute that raised the threshold value of
stolen goods necessary to make the offense a felony. (Id. at p. 253–254. The defendant urged that
because the amendment took effect before he was indicted and had the effect of reducing his crimes
to misdemeanors, the charges should be dismissed because the indictments were not brought within
the one-year statute of limitations applicable to misdemeanor-level offenses. (Id. at pp. 253–254.)
Although recognizing that the purpose of the amendment was to alter the seriousness of
punishments to account for the decreased value of the dollar over time, the Sampson court rejected
the defendant's argument on several grounds. One of the grounds was that there was no indication
that the legislature intended the statute to apply retroactively. (Id. at p. 254.) The other ground was
that if defendant’s position were adopted “he would receive not merely a reduction in potential
punishments, but rather a complete avoidance of prosecution, a result the legislature surely did not
intend.” (State v. Carpentino (2014) 85 A.3d 906, 913, citing to Sampson at pp. 254–255.)
This first ground relied upon by Sampson may or may not be applicable to Proposition 47.
However, the second ground cited by the Sampson court is applicable. If the statute of limitations
defense could be raised to defeat a prosecution of a defendant who had already been charged,
numerous crimes involving the loss of property valued between $400 and $950, or drug offenses in
which prosecution had not commenced within one year of their commission, would be fully and
unconditionally “pardoned.” This result is nowhere contemplated or discussed in Proposition 47.
107
Cases Not Yet Charged (as of November 5, 2014)
There may be circumstances where law enforcement, due to backlogs, insufficient resources, etc.,
does not bring over a case for charging that was formerly a wobbler (and governed by the three year
statute of limitations) but, as of November 5, 2014 is now only a misdemeanor. The arguments for
allowing a prosecution to proceed on crimes reduced from felonies to misdemeanors within the
felony statute of limitations rather than the misdemeanor statute of limitations when the case has
not yet been charged are perhaps not as compelling as when the case has already been charged.
However, all of the same arguments made above (with the exception of the first argument) for
allowing the case to proceed over a statute of limitations objection are still applicable.
If, however, law enforcement knows that a felony cum misdemeanor crime committed within the
past year is about to run – now that the crime has been designated a misdemeanor, the equities shift
toward the defense. If the case is not charged until after the one-year statute of limitations on
misdemeanors has passed, the defense can argue dismissal is warranted because prosecutors and law
enforcement were aware of the new law rendering a wobbler offense a misdemeanor and yet still
failed to take action in charging the offense before that statute of limitations had run.
3.
If a felony case is reduced to a misdemeanor pursuant to
Proposition 47, what statutory speedy trial limits apply? And if
misdemeanor statutory speedy trial limits apply, at what point does
the misdemeanor statutory speedy trial clock start ticking?
In felony cases proceeding by way of complaint, the prosecution generally has 1o days from the date
of arraignment or plea (whichever occurs later) to bring a defendant to preliminary examination or
60 days if the defendant is not kept in custody (Pen. Code, § 859b), followed by another 15 days to
file an information (Pen. Code, § 1382(a)(1)), and another 60 days from the date of arraignment on
that information (Pen. Code, § 1382(a)(2)).
In misdemeanor cases, the prosecution generally has 45 days from the date of arraignment or plea
(whichever occurs later) if the defendant is out of custody, or 30 days if the defendant is in custody.
(Pen. Code, § 1382(a)(A)(3).)
If a pending case is reduced from a felony to a misdemeanor pursuant to Proposition 47, there may
be circumstances in which questions arise regarding what statutory time period applies and, if a
misdemeanor statutory time period applies, what is the starting date for that time period.
108
It is likely (but not certain) that if a court grants a defendant’s request for a reduction of a pending
felony to a misdemeanor, the statutory speedy trial clock on a misdemeanor will apply but it will
only start ticking from the date of reduction. This would be consistent with how things work when
the defendant secures a reduction from a felony to a misdemeanor at or before preliminary
examination pursuant to section 17(b) (see Pen. Code, § 17(b)(5) [“When, at or before the
preliminary examination or prior to filing an order pursuant to Section 872, the magistrate
determines that the offense is a misdemeanor, in which event the case shall proceed as if the
defendant had been arraigned on a misdemeanor complaint”]) or when a court dismisses the felony
counts that had been joined with a misdemeanor count at the end of a preliminary examination (see
People v. Hardin (1969) 256 Cal.App.2d Supp. 954, 961 [if a felony count joined with
misdemeanor is dismissed at the end of the preliminary hearing but the misdemeanor offense is
found to have been committed, the court “should order the defendant arraigned in the Municipal
Court and a trial date fixed on the misdemeanor count”]).
In other words, the misdemeanor statutory speedy trial clock begins ticking from the date of
reduction. Whether it is the 30-day or 45 day time clock should turn on whether the defendant is in
or out of custody on that date. (See People v. Baca (1989) 211 Cal.App.3d 675, 680-681 [under
Section 1382(a)(3), the relevant date for determining whether a defendant is subject to the 30-day or
45-day time limitation is the date of arraignment or plea].)
Defendants may claim that this is unfair because it would allow the defendant to be kept in custody
without trial for a longer period of time than if the case had just proceeded as a felony. Indeed,
defendants may even argue that the statutory time period for a charge reduced from a felony to a
misdemeanor is not only the misdemeanor time period, but that the time period is calculated from
the date of arraignment on the original felony charge; and dismissal is required if the case has not
been brought to trial within the applicable misdemeanor statutory speedy trial limit as calculated
from the original date of arraignment.
As to the first argument, it can be pointed out that the defendant seeking to reap the benefit of the
reduction must accept the disadvantages of doing so. (See Civ. Code, § 3521 [“He who takes the
benefit must bear the burden”]; cf., People v. Espinoza (2014) 226 Cal.App.4th 635, 640
[rejecting argument that excess credits resulting from resentencing under Proposition 36 may be
used to exempt defendant from PRCS because a defendant “is not permitted to pick and choose
which portion of realignment he agrees to and which portion he does not”].) Moreover, if the
109
defendant wants his trial within the felony speedy trial limits, he arguably can choose not to seek the
reduction, proceed to trial on the case as a felony, and then make a post-trial motion (which would
have to be granted) to reduce the felony conviction to a misdemeanor.
As to the second argument, prosecutors can point out that nothing in Proposition 47 authorizes a
dismissal of any case; and that would be the result of retroactively imposing misdemeanor statutory
speedy trial limits on certain felony cases reduced to misdemeanors pursuant to Proposition 47 if the
time period is deemed the misdemeanor statutory time period, the clock on that time period is
calculated from the date of the original filing, and the misdemeanor time period would have already
run by the date of reduction. (See Govt. Code, § 9608 [discussed in this IPG memo, section II-2, at
p. 106.)
4.
The impact of Proposition 47 on outstanding arrest warrants
Can a suspect be arrested on an outstanding felony warrant when the crime for which he is
sought has been reduced to a misdemeanor pursuant to Proposition 47? IPG was unable to find
any cases on whether an arrest warrant originally issued for a crime that was previously
prosecutable as a felony, but is now a misdemeanor, should be recalled or whether an arrest
based on such an arrest warrant is invalid.
However, it is probably unnecessary to recall the warrant. If the warrant supported by probable
cause authorizes an arrest for a violation of the specified crime, there should be no constitutional
infirmity with the warrant regardless of whether the crime is designated a felony or a misdemeanor.
(See U.S. Const. IV Amendment [“no Warrants shall issue, but upon probable cause, supported by
Oath or Affirmation ....”].) California Constitution, article I, section 13, and Penal Code section 813
contain similar provisions. Moreover, an arrest warrant for a misdemeanor is statutorily authorized.
(See Pen. Code, §§ 817, 1427.) Thus, it is unlikely the warrant will be ruled invalid or that any
evidence obtained from the arrest will be suppressed. Once a suspect is brought into custody, bail
can be reduced to reflect the offense is just a misdemeanor instead of a felony.
The only possible hiccup is the fact that service of a misdemeanor arrest warrant cannot be made
between the hours of 10 o'clock p.m. of any day and 6 o'clock a.m. of the succeeding day, unless the
arrest is made without a warrant pursuant to Section 836 or 837, is made in a public place, is made
when the person is in custody pursuant to another lawful arrest, or is made pursuant to a warrant
which, for good cause shown, directs that it may be served at any time of the day or night. (See Pen.
110
Code, §§ 817(a)(2)[stating the “warrant of probable cause for arrest shall have the same authority for
service as set forth in Section 840”] and 840 [imposing restriction on nighttime misdemeanor
arrests].) Even if an off-hours arrest based on a felony cum misdemeanor warrant somehow is
viewed as a statutory violation, it should not result in suppression of any evidence as the limitation
on night-time arrests under misdemeanor warrants has a statutory not a constitutional basis. (See
People v. Whitted (1976) 60 Cal.App.3d 569, 572; see also People v. McKay (2002) 27 Cal.4
th 601, 605 [“compliance with state arrest procedures is not a component of the federal
constitutional inquiry].) And “[e]vidence obtained in violation of a statute is not inadmissible per se
unless the statutory violation also has a constitutional dimension.” (People v. Pifer (1989) 216
Cal.App.3d 956, 963; accord People v. Wade (1989) 208 Cal.App.3d 301, 308.)
III. THE IMPACT OF PROPOSITION 47 ON CRIMES FOR
WHICH A DEFENDANT HAS ALREADY BEEN
CONVICTED IN GENERAL
1.
The resentencing and re-designation provisions of Proposition 47:
Penal Code section 1170.18
Proposition 47 enacted a statute that allows defendants who have previously been convicted of
one of the crimes that was reduced from a felony to a misdemeanor by Proposition 47 to petition or
apply for a reduction of their sentence from a felony to a misdemeanor if they would have been guilty
of a misdemeanor under Proposition 47 if the act been in effect at the time of the offense. (See
People v. Lynall (2015) 233 Cal.App.4th 1102, 1109.)
This new statute is Penal Code section 1170.18. Section 1170.18 establishes two different schemes;
one of which applies to defendants who are currently serving a felony sentence (covered by
subdivisions (a) through (e) and (o)) and one of which applies to defendants who have completed
their felony sentence (covered by subdivisions (f) through (h)). Subdivisions (i) through (n) of
section 1170.18 generally apply to both schemes.
A.
The specific statutory language of Penal Code section 1170.18
Penal Code section 1170.18 provides:
111
“(a) 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 the act that added this section (“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 in his or her case to request resentencing in
accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5,
473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by
this act.
(b) Upon receiving a petition under subdivision (a), the court shall determine whether the
petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in
subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner resentenced to a
misdemeanor pursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section
459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, those sections have been amended or added
by this act, unless the court, in its discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety. In exercising its discretion, the court may
consider all of the following:
(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.
(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.
(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.
(d) A person who is resentenced pursuant to subdivision (b) shall be given credit for time served
and shall be subject to parole for one year following completion of his or her sentence, unless the
court, in its discretion, as part of its resentencing order, releases the person from parole. Such
person is subject to Section 3000.08 parole supervision by the Department of Corrections and
Rehabilitation and the jurisdiction of the court in the county in which the parolee is released or
112
resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing
petitions to revoke parole and impose a term of custody.
(e) Under no circumstances may resentencing under this section result in the imposition of a term
longer than the original sentence.
(f) A person who has completed his or her 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 file an application before the trial court that entered the
judgment of conviction in his or her case to have the felony conviction or convictions designated as
misdemeanors.
(g) If the application satisfies the criteria in subdivision (f), the court shall designate the felony
offense or offenses as a misdemeanor.
(h) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed
under subsection (f).
(i) The provisions of this section shall not apply to persons who have 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.
(j) Any petition or application under this section shall be filed within three years after the effective
date of the act that added this section or at a later date upon a showing of good cause.
(k) Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a
misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except
that such resentencing shall not permit that person to own, possess, or have in his or her custody
or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section
29800) of Division 9 of Title 4 of Part 6.
(l) If the court that originally sentenced the petitioner is not available, the presiding judge shall
designate another judge to rule on the petition or application.
(m) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise
available to the petitioner or applicant.
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(n) Nothing in this and related sections is intended to diminish or abrogate the finality of
judgments in any case not falling within the purview of this act.
(o) A resentencing hearing ordered under this act shall constitute a “post-conviction release
proceeding” under paragraph (7) of subdivision (b) of Section 28 of Article I of the California
Constitution (Marsy's Law).
2.
Does Proposition 47 operate retroactively to automatically reduce
prior felony convictions of defendants?
An argument that defendants will sometimes make is that the passage of Proposition 47
automatically reduced their past felony convictions if the conviction was for a crime that no longer
constitutes a felony with the passage of Proposition 47. This argument is based on the premise that
Proposition 47 can be applied retroactively to all prior convictions that are not yet final. The general
rule relating to retroactive application of new statutes is that “legislative enactments are generally
presumed to operate prospectively and not retroactively unless the Legislature expresses a different
intention.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208; accord People v.
Brown (2012) 54 Cal.4th 314, 319.) However, absent a contrary intent, “[i]f the amendatory statute
lessening punishment becomes effective prior to the date the judgment of conviction becomes final
then, . . . it, and not the old statute in effect when the prohibited act was committed, applies.” (In re
Estrada (1965) 63 Cal.2d 740, 747, emphasis added by IPG.) Cases in which judgment is not yet
final include those in which a conviction has been entered and sentence imposed but an appeal is
pending when the amendment becomes effective. (People v. Babylon (1985) 39 Cal.3d 719, 722.)
Cases are also not “final” for retroactivity purposes until the time in which to petition for certiorari
in the United States Supreme Court has passed. (People v. Vieira (2005) 35 Cal.4th 264, 306.)
Because it lessens punishment, Proposition 47 applies to all pre-conviction pending cases regardless
of when the crime was committed. “There is no retroactivity issue for an accused convicted after the
effective date of Proposition 47 of violating [a crime formerly prosecutable as a felony but only
prosecutable as a misdemeanor absent disqualifying circumstances]. Unless the accused has a
disqualifying prior conviction . . . he or she may only be convicted of a misdemeanor. (See People
v. Shabazz (2015) 237 Cal.App.4th 303, 309.
This rule of reduction might also apply to a conviction for a crime subject to Proposition 47 where
the case is not yet final but for the fact Proposition 47 specifically provided a mechanism (i.e., Penal
114
Code section 1170.18) for such reduction when a defendant has been convicted of a reducible felony.
(See this IPG memo, section III-1-A at pp. 111-113.) Thus, if the defendant has already been
convicted, the defendant must petition or apply for a reduction of punishment – even if the
conviction is not yet final. (See People v. Shabazz (2015) 237 Cal.App.4th 303, 309; People v.
Davis 2016 WL 1242634, *4-*5; People v. Valenzuela (2016) 244 Cal.App.4th 692, 707 [rev. gtd,
dkt # S232900]; People v. Noyan (2014) 232 Cal.App.4th 657, 672; see also People v.
Scarbrough (2015) 240 Cal.App.4th 916, 924 [appellate court has no jurisdiction to make initial
ruling on petition for reduction of conviction even though conviction is before court of appeal on
another issue – section 1170.18 is the mechanism that must be used]; People v. Diaz (2015) 238
Cal.App.4th 1323, 1331-1332 [“voters did not intend to permit an appellate court to declare in the
first instance that a felony conviction for a crime reduced by Proposition 47 is a misdemeanor”
rather “the remedy lies in the first instance by filing a petition to recall (if currently serving the
sentence) or an application to re-designate (if the sentence is completed) in the superior court of
conviction”]; People v. Yearwood (2013) 213 Cal.App.4th 161, 170 [applying rule in context of
Proposition 36].)
The reasoning behind the opinion in People v. Shabazz (2015) 237 Cal.App.4th 303 is that the
Estrada exception does not “apply when the Legislature or the electorate has clearly indicated they
did not so intend” to make the reduction of the crime apply retroactively and that by including
specific procedures* for obtaining reduction of specified felony convictions, the voters clearly
indicated they “never intended that Proposition 47 would automatically apply to allow” a reduction
of a felony to a misdemeanor absent compliance with those specific procedures.” (People v.
Shabazz (2015) 237 Cal.App.4th 303, 311, 313-314; accord People v. Davis 2016 WL 1242634,
*4-*5; People v. Valenzuela (2016) 244 Cal.App.4th 692, 707 [rev. gtd, dkt #S232900]; People
v. Delapena (2015) 238 Cal.App.4th 1414, 1429 [rev. gtd, dkt # S229010]; People v. Noyan
(2014) 232 Cal.App.4th 657, 672; see also People v. Carrea (2016) 244 Cal.App.4th 966, 979
[rev. filed] [finding Estrada rule did not dictate that the court permit striking of section 667.5
enhancement where defendant obtained reduction of conviction underlying enhancement after
conviction on substantive offense enhanced by section 667.5 became final and there was nothing in
Proposition 47’s intent indicating its provisions would apply retroactively to allow, or require the
retroactive dismissal or striking of the prior prison enhancement]; People v. Awad (2015) 238
Cal.App.4th 215, 221-222 [declining to reduce defendant’s felony conviction to misdemeanor
pursuant to Proposition 47 during the pendency of an appeal because “that is a task that Proposition
47 (specifically, section 1170.18) vests with the trial court.”].)
115
Although the holding in Shabazz, Davis, and Noyan remain on the books, the California
Supreme Court has taken up for review the case of People v. DeHoyos (2015) 238 Cal.App.4th
363 [rev. gtd, dkt # S228230] and other cases addressing the retroactivity issue (see People v.
Valenzuela (2016) 244 Cal.App.4th 692, 707 [rev. gtd, dkt # S232900]; People v. Delapena
(2015) 238 Cal.App.4th 1414 [rev. gtd, dkt # S229010] [deferring resolution pending consideration
and disposition of a related issue in People v. DeHoyos, S228230]; People v. Lopez (2015) 238
Cal.App.4th 177 [rev. gtd, dkt # S228372] [same]).
In DeHoyos, a defendant convicted and sentenced for a felony violation of Health and Safety Code
section 11377 argued that “Proposition 47 applies retroactively to her because her case was not final
when Proposition 47 became effective” and “[c]onsequently, she contends she is automatically
entitled to resentencing under amended Health and Safety Code section 11377 and is not required to
utilize the resentencing procedure established in section 1170.18.” (Id. at pp. 366-367.) Using
similar reasoning to that used by the court in People v. Shabazz (2015) 237 Cal.App.4th 303, the
Court of Appeal in DeHoyos had rejected the defense argument and stated defendant’s remedy is
limited to the procedure established in section 1170.18. (Id. at pp. 367-368.)
*Editor’s note: The California Supreme Court is currently reviewing an analogous issue arising from the
passage of Proposition 36: “Does the Three Strikes Reform Act of 2012 (§§ 667, subd. (e)(2)(C), 1170.12,
subd. (c)(2)(C)), which reduces punishment for certain non-violent third-strike offenders, apply
retroactively to a defendant who was sentenced before the Act’s effective date but whose judgment was not
final until after that date? (People v. Conley, review granted Aug. 14, 2013, S211275.)
3.
Can cases interpreting the resentencing provision (section
1170.126) of Proposition 36 (The Three Strikes Reform Act) be
used in interpreting the resentencing provision of Proposition
47 (section 1170.18)?
“In 2012, the voters enacted section 1170.126 as part of the Three Strikes Reform Act of 2012. (Prop.
36, § 6, as approved by voters, Gen. Elec. (Nov. 7, 2012).) That section provides in pertinent part:
‘Any person serving an indeterminate term of life imprisonment ... upon conviction ... of a felony or
felonies that are not defined as serious and/or violent felonies ..., 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
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her case, to request resentencing ....’ (§ 1170.126, subd. (b).)” (People v. Scarbrough (2015) 240
Cal.App.4th 916, 924.)
“Sections 1170.18 and 1170.126 use substantially the same language, structure, and procedure to
provide for recall and resentencing of persons currently serving sentences where those persons
would be subject to lighter sentences pursuant to the newly enacted voter initiatives.” (People v.
Scarbrough (2015) 240 Cal.App.4th 916, 924; see also People v. Rouse (2016) 245 Cal.App.4th
292, 298 [“Both Proposition 47 and Proposition 36 are similar in structure and contain similar
remedial resentencing provisions.” And “[s]ome of the statutory language [of section 1170.18] is
taken directly from section 1170.126.”]; People v. Lewis [unpublished and unciteable] 2015 WL
7013662, *4 [noting much of the appellate interpretation of Proposition 36 is likely relevant in the
interpretation of Proposition 47 because both have a strikingly similar basic structure, both provide
a mechanism for resentencing, and some of the statutory language in Proposition 47 is taken directly
from section 1170.126, the resentencing provision of Proposition 36].)
Accordingly, many decisions have relied upon cases interpreting the recall and resentencing
provisions of section 1170.126 in interpreting analogous provisions in section 1170.18. (See e.g.,
People v. Davis 2016 WL 1242634, *4-*5 [relying on case interpreting section 1170.126 in deciding
whether Proposition 47 should be applied retroactively]; People v. Bush (2016) 245 Cal.App.4th
992 [200 Cal.Rptr.3d 190, 196] [relying on case interpreting section 1170.126 in deciding standard of
burden of proof at evidentiary hearing on petition for resentencing]; People v. Perkins (2016) 244
Cal.App.4th 129, 137 [relying on case interpreting section 1170.126 in deciding whether defendant
was entitled to evidentiary hearing on petition for resentencing];People v. Rivas-Colon (2015)
241 Cal.App.4th 444, 448, 451-452 [relying on cases interpreting section 1170.126 in deciding
whether defendant forfeited argument, has burden of proof, and is entitled to a jury trial at
resentencing hearing under section 1170.18]; People v. Scarbrough (2015) 240 Cal.App.4th 916,
924 [relying on case interpreting section 1170.126 in deciding whether appeal divests trial court of
authority to hear resentencing petition under 1170.18].)
4.
Are defendants convicted of crimes not mentioned in
Proposition 47 eligible for resentencing or re-designation?
for resentencing?
Defendants often will bring motions seeking to be resentenced or have convictions re-designated
pursuant to section 1170.18 even when the offenses are not designated in Proposition 47. Often
117
these requests are made on grounds that since these other offenses are so similar to the listed
offenses that it would thwart the intent to Proposition 47 and/or constitute a denial of equal
protection not to extend the benefits of Proposition 47 to defendants convicted of such offenses.
These requests have been uniformly rejected – at least where the offense is neither explicitly
mentioned nor identified as a “theft” covered by Penal Code section 490.2.* (See e.g., People v.
Descano (2016) 245 Cal.App.4th 175, 179-185 [rev. filed] [no resentencing on conviction for
cultivation of marijuana (Health & Saf. Code, § 11358)]; People v. Nichols (2016) 244 Cal.App.4th
681, 687-691 [rev. gtd, dkt #S233055] [rejecting equal protection argument that defendants
convicted of theft of vehicles (Pen. Code, § 490.2) or receiving stolen property (Pen. Code, § 496) are
similarly situated to defendant convicted of receiving a stolen vehicle (Pen. Code, § 496)]; People v.
Peacock (2015) 242 Cal.App.4th 708, 711-713 [rev. gtd, docket # S230948] [same]; People v.
Acosta (2015) 242 Cal.App.4th 521, 525-528 [rejecting equal protection challenge made by a
defendant claiming defendants convicted of attempted car burglary involving property under $950
ae similarly situated to defendants convicted of thefts of under $950].)
*Editor’s note: For a discussion of what crimes are or are not within the scope of Penal Code section
490.2, see this IPG memo, section I-5 at pp. 39-73)
Because the question of whether a defendant is entitled to have their new unmentioned offense
treated as a misdemeanor instead of a felony is the same questions as whether a defendant is entitled
to have their old unmentioned felony conviction reduced to a misdemeanor, we discuss both types of
cases in this outline under the section discussing crimes committed after the passage of Proposition
47 (see this IPG memo, sections I-3 to 11 at pp. 16-92). Thus, for example, whether a defendant’s
new offense or conviction for “shoplifting” falls within the scope of Proposition 47 is discussed in the
section on the new offense of shoplifting. (See this IPG memo, section I-3 at pp. 16-35)
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5.
A.
Which defendants are barred from receiving Proposition 47
relief even if one or more of the counts for which relief is sought
is facially-eligible for relief under section 1170.18?
Defendants who have prior convictions for crimes requiring sex
offender registration or super strikes are not eligible to petition for
recall of a sentence
Subdivision (i) of section 1170.18 specifically states: “The provisions of this section shall not apply to
persons who have 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.” (Emphasis added.)
*Editor’s note: For a list of the offenses specified in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 (aka “super strikes”) and listed in Penal Code section 290(c), see this IPG
memo, section III-5-B at pp. 119-121.
*Editor’s note: Defendants who are obligated to register as sex offenders pursuant to Penal Code section
290.006 (court-imposed registration on offenses not listed in subdivision (c) of section 290) presumably
may still apply for resentencing. (See this IPG memo, section I-3-I at p. 26 [discussing issue in context of
whether such defendants are entitled to be prosecuted as misdemeanants instead of felons when they
commit new offenses covered by Proposition 47].)
B.
Prior convictions that are super strikes or require sex offender
registration
P.C. 37
P.C. 128
P.C. 136.1
P.C. 182
P.C. 187
P.C. 191.5(a)
P.C. 191.5(b)
P.C. 205
P.C. 206
P.C. 207
P.C. 209(a)
P.C. 209(b)
P.C. 209.5
Treason
Perjury Causing the Execution of an Innocent Person
Dissuading a Witness (if enhanced under PC 186.22(4))
Conspiracy to Commit a Crime Punishable by Life or Death, or Conspiracy to Commit Any Offense
Specified in P.C. 290(c)
Murder (and attempts)
Gross Vehicular Manslaughter While Intoxicated (and attempts)
Vehicular Manslaughter While Intoxicated (formerly P.C. 192(c)(3))
Aggravated Mayhem
Torture
Kidnapping (if the intent is to commit P.C. 261, 262, 264.1, 286, 288, 288a, or 289)
Kidnapping for Ransom or Extortion
Kidnapping to Commit Robbery or a Sex Crime
Kidnapping in the Commission of Carjacking
119
P.C. 215
Carjacking (if enhanced under PC 186.22(4))
P.C. 217.1(b) Attempted Murder of a Government Official
P.C. 218
Train Wrecking
P.C. 219
Train Derailing
P.C. 220
Assault With Intent to Commit a Sex Crime (but not mayhem)
P.C. 236.1(b) Human Trafficking
P.C. 236.1(c) Human Trafficking Involving Minor
P.C. 243.4 ) Sexual Battery (felony or misdemeanor)
P.C. 245(d)(3) Assault on a Peace Officer or Firefighter
P.C. 246
Shooting at Inhabited Dwelling/Occupied Car (if enhanced under PC 186.22(4)
P.C. 261(a)
(1)(2)(3)(4)(6) Rape (and attempts)
P.C. 262(a)
Spousal Rape (if by force, violence, duress, menace, or threat to retaliate)
P.C. 264.1
Rape or Sexual Penetration in Concert (and attempts)
P.C. 266
Enticing or Procuring a Female for Prostitution (and attempts)
P.C. 266c
Inducing a Sex Act by a False Representation Creating Fear (felony or misdemeanor and attempts)
P.C. 266h(b) Pimping Involving a Minor(felony or misdemeanor and attempts)
P.C. 266i(b) Pandering Involving a Victim/Prostitute Who is a Minor (and attempts)
P.C. 266j
Providing or Transporting a Child Under Age 16 for a Lewd Act(and attempts)
P.C. 267
Abducting a Minor for Purposes of Prostitution(and attempts)
P.C. 269
Aggravated Sexual Assault of a Child
P.C. 272
Contributing to the Delinquency of a Minor if Lewd or Lascivious Conduct is Involved (and
attempts)
P.C. 273ab
Assault on a Child Under Age 8 That Results in Death
P.C. 285
Incest (and attempts)
P.C. 286
Sodomy (and attempts)
P.C. 288
Lewd or Lascivious Act on a Minor or Dependent Person (and attempts)
P.C. 288a
Oral Copulation (and attempts
P.C. 288.2
Providing Harmful Matter to a Minor for the Purpose of Seduction (only felony and attempts)
P.C. 288.3
Communicating With a Minor with Sexual Intent (and attempts)
P.C. 288.4
Arranging a Meeting with a Minor with Sexual Intent (felony or misdemeanor and attempts)
P.C. 288.5
Continuous Sexual Abuse of a Child (and attempts)
P.C. 288.7
Sex Act With a Child Age 10 or Younger (and attempts)
P.C. 289
Sexual Penetration(felony or misdemeanor and attempts)
P.C. 311.1
Pornography Involving Minor with Intent to Distribute (felony or misdemeanor and attempts)
P.C. 311.2
(b)(c)(d)
Pornography Involving Minor for Commercial Purposes (felony or misdemeanor and attempts)
P.C. 311.3
Sexual Exploitation of a Child (felony or misdemeanor and attempts)
P.C. 311.4
Using or Permitting a Minor to Pose for Pornography (felony or misdemeanor and attempts)
P.C. 311.10
Advertising Pornography Involving a Minor (felony or misdemeanor and attempts)
P.C. 311.11
Possession of Child Pornography (felony or misdemeanor and attempts)
P.C. 314.1
Indecent Exposure (and attempts)
P.C. 314.2
Indecent Exposure
P.C. 451.5
Aggravated Arson
P.C. 519
Extortion (if enhanced under PC 186.22(4))
P.C. 647.6
Annoying or Molesting a Child (formerly PC 647a) (and attempts)
P.C. 653f(b) Solicitation to Commit Murder
P.C. 653f(c) Solicitation to Commit a Specified Sex Crime
P.C. 664
Attempts to Commit Any Offense Specified in P.C 290(c)
P.C. 664–187 Attempted Murder, With or Without Premeditation
P.C. 667.61
Any Sex Crime Punishable Pursuant to P.C. 667.61
P.C. 667.7
Any Crime Punishable Pursuant to P.C. 667.7
P.C. 667.71
Any Crime Punishable Pursuant to P.C. 667.71
P.C. 4500
Assault By a Life Prisoner on a Non-inmate
P.C. 11418
Possession of a Weapon of Mass Destruction (as defined in Section 11418(a)(1))
120
P.C. 11418(b)(1)Using a Weapon of Mass Destruction
P.C. 11418(b)(2)Using or Employing a Weapon of Mass Destruction and Causing Death
P.C. 12022.53(d) Any Felony to Which a P.C. 12022.53(d) Firearm Use Enhancement Attaches
P.C. 12022.55 Shooting from a Car Causing GBI (if enhanced under PC 186.22(4))
P.C. 18745
Exploding a Destructive Device with the Intent to Commit Murder [Formerly P.C. 12308]
P.C. 18755(a) Exploding a Destructive Device or Explosive Causing Death [Formerly P.C. 12310(a)]
P.C. 18755(b) Exploding a Destructive Device or Explosive Causing GBI or Mayhem [Formerly P.C. 12310(b)]
Military & Vets
1670/1672(a) Military Sabotage
1671/1672(a) Military Sabotage
C.
If a defendant is convicted of a disqualifying offense (i.e., a superstrike
or conviction requiring sex-offender registration) at the same time or
after the defendant was convicted of a Proposition 47 eligible offense, is
the defendant still eligible for resentencing pursuant to section 1170.18?
Section 1170.18(a) provides, in pertinent part, that “[a] person currently serving a sentence for a
conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under the act
that added this section (“this act”) had this act been in effect at the time of the offense may
petition for a recall of sentence[.]” (Pen. Code, § 1170.18(a), emphasis added by IPG.)
Section 1170.18(i) simply states: “The provisions of this section shall not apply to persons who
have 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.” (Pen. Code, § 1170.18(i), emphasis added by IPG.)
The question has arisen whether the disqualifying prior conviction must have occurred before the
offense for which resentencing is requested or whether it simply must have occurred before the
petition for resentencing is heard.
For a number of very good reasons, if a defendant who is seeking resentencing or re-designation for
a Proposition 47 eligible offense was convicted of a disqualifying offense after or at the same time he
was convicted of the otherwise eligible offense, he should be barred from section 1170.18 relief – so
long as the disqualifying conviction preceded the hearing date on whether relief should be granted.
First, on its face, section 1170.18(i) does not provide that the prior convictions must have occurred
before the offense for which the defendant is seeking resentencing or re-designation. Second, given
the posture of a defendant seeking post-conviction relief under the statute, it follows that the focus
121
of Penal Code section 1170.18 is to evaluate the status of the person at the time of filing their petition
or application to determine if they fall within this excluded category of defendants. (Cf., People v.
Hinton (2006) 37 Cal.4th 839, 887 [a prior felony conviction, for purposes of impeachment under
Evidence Code section 788 means any conviction suffered before trial, regardless of the fact the prior
convictions occurred after the offense for which defendant is on trial].) Third, it make no sense to
allow a defendant with a more recent superstrike to be resentenced but disallow a defendant with a
less recent superstrike from resentencing. Finally, ignoring disqualifying convictions that arose
before the resentencing hearing would be inconsistent with the intent of Proposition 47. Section 3,
subdivision (1) of Proposition 47 provides that one of its purposes and intents is to “[e]nsure that
people convicted of murder, rape, and child molestation will not benefit from this act.” If a
defendant convicted of murder, rape, or child molestation could get a reduction of an offense that
occurred before the murder, rape, or child molestation (as would be the case if the prior conviction
had to have occurred before the offense for which resentencing is sought), then the intent and
purpose of Proposition 47 would be defeated.
Defendants may seek to argue that the fact a defendant was simultaneously or subsequently
convicted of a disqualifying offense does not preclude section 1170.18 relief by asking a court to
consider the recent California Supreme Court decision in People v. Johnson (2015) 61 Cal.4th
674.
In Johnson, the court was asked to decide whether an inmate who was convicted of both a serious
or violent felony and a felony that is neither serious nor violent was eligible for resentencing under
Penal Code section 1170.126 – the resentencing provision of the Three Strikes Reform Act of 2012
(Proposition 36). (Id. at p. 679.) Subdivision (e) of section 1170.126 allows a defendant serving a
Three Strikes sentence to be resentenced if, among other things, “[t]he inmate’s current sentence
was not imposed for any of the offenses appearing in [specified subdivisions of Penal Code section
667 and 1170.12]” and “[t]he inmate has no prior convictions for any of the offenses appearing in
[specified subdivisions of Penal Code section 667 and 1170.12].” (Pen. Code, § 1170.126(e)(2)&(3).)
After reviewing the language of Penal Code section 1170.126, the court determined that the statute
was ambiguous as to whether a current offense that was serious or violent would disqualify a
defendant from resentencing on another non-serious or violent count. (Id. at p. 694-695.) Because
of this, the court considered the statute in the context of the history of the Three Strikes law and the
legislative history. (Id. at p. 682, 694-695.) The Johnson court determined that the history within
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the Three Strikes law was to focus, “on the sentence to be imposed with respect to each count
individually…” (Id. at p. 688.) In light of this history, the Johnson court held that resentencing
was on a count-by-count basis and the presence of a serious or violent felony did not disqualify a
defendant from resentencing on the count that was neither serious nor violent. (Id. at p. 695.)
Further, the court noted that there was nothing within the ballot material that indicated a contrary
process. (Id. at p. 694.) The court was not swayed by the anomaly that arises when one of an
inmate’s current offenses is an offense that would disqualify the inmate from resentencing; namely,
that if the offense resulted in a disqualifying conviction before the defendant committed the offense
for which the defendant is seeking resentencing, the defendant would be ineligible for relief but not
if the inmate was convicted of the disqualifying offense at the same time as the offense for which
defendant is seeking resentencing. (Id. at p. 694.)
Section 1170.126 is a statute that is sometimes viewed as analogous to section 1170.18 (see this IPG
memo, section III-3 at pp. 116-117). However, viewed in context, subdivision (i) of section 1170.126
is not at all comparable to subdivision (e) of section 1170.18 and Johnson does not control the
question of whether a disqualifying prior conviction under section 1170.18 must have occurred
before the offense for which defendant is seeking resentencing.
To begin with, the relevant provision disqualifying defendants from resentencing under section
1170.126 is worded somewhat differently than subdivision (i) of section 1170.18. More importantly,
Johnson’s holding—that eligibility under Penal Code section 1170.126 is on a count-by-count
basis— was reached by analyzing the history and intent of the Three Strikes law and Proposition 36.
(Id. at pp. 694-695.) The Johnson opinion makes clear the import of the history of the Three
Strikes law in its interpretation of Penal Code section 1170.126: “Historically, sentencing under the
Three Strikes law has focused on the sentence to be imposed with respect to each count
individually.” (Id. at p. 688.) “Proposition 36’s focus on individual counts in its sentencing revisions
is consistent with the historical approach to sentencing under the Three Strikes law.” (Id. at p.690.);
Thus, the Court’s interpretation in Johnson was based upon the legislative history specific to the
Three Strikes law. That history is not present under Proposition 47.
To the contrary, the clear intent and ballot material for Proposition 47 reflects that those with a
conviction for a serious or violent felony should be excluded from Proposition 47. In discussing the
reduction of penalties for certain offenses under Proposition 47, the voter guide explained that “[t]he
measure limited these reduced penalties to offenders who have not committed certain severe crimes
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listed in the measure—including murder and certain sex and gun crimes.” (Voter Information Guide,
Gen. Elec. (Nov. 2014) Proposal, p. 35, emphasis added.) Similarly, in discussing how previouslyconvicted offenders will be resentenced under the Act, voters were told that, “no offender who has
committed a specified severe crime could be resentenced or have their conviction changed.” (Voter
Information Guide, Gen. Elec. (Nov. 2014) Proposal, p. 35, emphasis added.) In addition, as noted
above, the purpose and intent of Proposition 47 is to, “[e]nsure that people convicted of murder,
rape, and child molestation will not benefit from this act.” (Text of Proposition 47, Section 3,
Purpose and Intent.)
*Editor’s note: The above discussion has been cribbed from an excellent brief on the issue written by
Santa Clara County Deputy District Attorney Dana Veazey. The brief is available upon request.
D. Are defendants with juvenile adjudications entitled to a resentencing
on felonies that Proposition 47 now treats as misdemeanors?
Because the actual language of section 1170.18 is worded in terms of a defendant who is currently
serving a sentence for a conviction of a felony, a minor currently serving a sentence following a
juvenile adjudication for a crime that has been reduced to a misdemeanor under Proposition 47
should not technically be eligible for resentencing. This is because, pursuant to Welfare and
Institutions Code section 203, a juvenile adjudication is not a conviction. (See this IPG memo,
section I-19 at p. 98.)
However, in Alejandro N. v. Superior Court of San Diego County (2015) 238 Cal.App.4th
1209, the court concluded that “section 1170.18 was intended to apply to juvenile offenders.” (Id. at
p. 1224.) The Alejandro N. court observed that Welfare and Institutions Code section 602
expressly provides that jurisdiction over juveniles who are made wards of the court is premised on
the juvenile's violation of criminal laws. (Id. at p. 1224.) The court concluded that “it is clear from
the plain language of Welfare and Institutions Code section 602 that changes effectuated in the
substantive offenses defined by the Penal Code apply to juvenile wardships, and because section
1170.18 directly involves changes to these substantive offenses, it likewise applies to juvenile
offenders.” (Id. at p. 1226 [and also relying on Welf. & Inst. §726(d) [“If the minor is removed from
the physical custody of his or her parent or guardian as the result of an order of wardship made
pursuant to Section 602, the order shall specify that the minor may not be held in physical
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confinement for a period in excess of the maximum term of imprisonment which could be imposed
upon an adult convicted of the offense or offenses which brought or continued the minor under the
jurisdiction of the juvenile court.”]; see also T.W. v. Superior Court (2015) 236 Cal.App.4th
646 [applying Proposition 47 to juvenile sentence – albeit not directly addressing the issue]; In re
J.L. (2015) 242 Cal.App.4th 1108, 1113, fn. 4 [assuming “that juvenile offenders may properly invoke
Proposition 47's recall of sentence provision, section 1170.18, to seek reclassification of a prior
adjudication.”].)
E.
Is a defendant who is currently serving a sentence for misdemeanor
conviction of Penal Code section 484/666 based on having three
prior convictions entitled to a resentencing under Proposition 47?
Penal Code section 1170.18 does not provide for resentencing on a misdemeanor conviction.
Therefore, as it is actually worded, section 1170.18 does not provide an avenue for resentencing of a
defendant who is currently serving a sentence for a misdemeanor “petty with a prior” (Pen. Code, §
484/666) based on the defendant having had three theft priors – even though this crime no longer
exists post-Prop 47 unless one of the theft priors is for Penal Code section 368(d) or (e) [elder
fraud].) This may present an equal protection issue.
IV. WHAT ARE THE RULES GOVERNING RESENTENCING
OF DEFENDANTS WHO ARE CURRENTLY SERVING A
SENTENCE FOR A FELONY CONVICTION THAT
WOULD BE A MISDEMEANOR UNDER PROPOSITION
47?
Penal Code section 1170.18(a) defines who may petition for recall and sentencing: “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 the act that added this section (“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 in his or her case to request resentencing in accordance with
Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2,
496, or 666 of the Penal Code, as those sections have been amended or added by this act.”
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1.
What happens if the trial court that originally entered the
sentence is no longer available?
Subdivision (l) of section 1170.18 states: “If the court that originally sentenced the petitioner is not
available, the presiding judge shall designate another judge to rule on the petition or application.”
A.
What does it mean for a trial court not to be “available?”
Section 1170.18 does not define what it means for a court to be unavailable. In the recent case of
In the recent decision of People v. Rodriguez (2016) 231 Cal.App.4th 288 [rev. gtd, dkt #
S223129]), the court addressed what it meant for a judge to be unavailable for purposes of Penal
Code section 1538.5(p). Section 1538.5(p) provides that if a motion to suppress is going to be
relitigated, “the motion shall be heard by the same judge who granted the motion at the first
hearing if the judge is available.” The Rodriguez appellate court upheld a determination that a
judge was not “available” to hear a renewed motion to suppress, after the complaint was refiled,
due to judge’s assignment to a different courthouse and held that in determining unavailability it
was proper to consider the complex administrative processes of the court system. (Id. at pp.
395-301.) However, Rodriguez has been taken up for review by the California Supreme Court.
In the unpublished (and hence unciteable) decision of People v. Lewis 2014 WL 5870165, the
court interpreted what it meant for court to be “available” for purposes Penal Code section
1170.126(b) (enacted by Proposition 36) which provides: “If the court that originally sentenced
the defendant is not available to resentence the defendant, the presiding judge shall designate
another judge to rule on the defendant's petition.” The Lewis court interpreted the term
“available” in that context “to mean a current member of the bench who is actively presiding over
matters that come before the court, regardless of that judge’s internal administrative assignment
(e.g., civil law and motion, civil trials, family law, juvenile dependency, criminal trials).” (Id. at
p. *2.)
B.
Can the right to resentencing by the same trial court be waived?
It is likely that the right to resentencing by the same trial court can be waived if the waiver is
knowing and intelligent. Proposition 47 is similar in a lot of respects to Proposition 36 (“The Three
Strikes Reform Act of 2012”) which permits the recall and resentencing of certain defendants who
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were sentenced under the Three Strikes law for nonviolent and nonserious felonies.
Both
Proposition 36 and Proposition 47 use the same language and it is likely that cases interpreting
Proposition 36 may be considered in interpreting Proposition 47 – especially when interpreting
identical or similar language. (See this IPG memo, section III-3 at p. 116.) In People v. Superior
Court (Kaulick) (2013) 215 Cal.App.4th 1279, the court held that a defendant may waive the right
for the petition to be considered by a particular judge under Proposition 36 so long as the waiver was
done with “an actual and demonstrable knowledge of the right being waived so that the waiver is
deemed knowing and intelligent.” (Id. at p. 1301 [and noting a court “should not find a waiver by
mere silence or acquiescence even when the defendant is represented by counsel”].)
2.
What does it mean to be “currently serving a sentence?”
There is some question what it means to be “currently serving a sentence” for purposes of section
1170.18(a). The term is not defined in section 1170.18. “The word ‘sentence’—as used in subdivision
(a) (“currently serving a sentence”) and subdivision (f) (“completed his or her sentence”)—is
ambiguous. The “term ‘sentence’ might include only a defendant’s prison term. On the other hand,
‘sentence’ might encompass both the prison term and the corresponding period of parole or PRCS.”
(People v. Armogeda (2015) 240 Cal.App.4th 1039, 1044 [rev. gtd, dkt # S23037].)
A.
Are persons currently serving time in jail or prison “serving a
sentence?”
If a person has been sentenced and is currently in jail or prison for one of the designated crimes, it
cannot reasonably be argued the defendant is not “currently serving a sentence.” (See People v.
Garcia (2016) 245 Cal.App.4th 555, 559 [implicitly assuming so]; People v. Davis 2016 WL
1242634, *8 [same].)
B.
Are persons currently on probation “serving a sentence?”
An argument can be made that a defendant who is on probation is not “serving a sentence” on the
basis that when a defendant is placed on probation, imposition of or execution of sentence has been
suspended (see Pen. Code, § 1203(a) [“As used in this code, ‘probation’ means the suspension of the
imposition or execution of a sentence and the order of conditional and revocable release in the
community under the supervision of a probation officer”]. Where the sentence itself is suspended,
the sentence has not been, and may never be, pronounced. (See People v. Davis 2016 WL
127
1242634, at *5; People v. Jones (1950) 36 C.2d 373, 375; People v. McShane (1954) 126 C.A.2d
Supp. 845, 846). Moreover, “the phrase ‘serving a sentence,’ when used within the law, generally
refers to serving a term of confinement, and it is contrasted with a defendant's being placed on
probation.” (People v. Davis 2016 WL 1242634, at *5.) Finally, section 1170.18(a) requires the
defendant to “petition for a recall of sentence before the trial court that entered the judgment of
conviction” but “it has been held that when a trial court suspends imposition of sentence and places
the defendant on probation, ‘no judgment is then pending against the probationer.’” (People v.
Davis 2016 WL 1242634, at *6.) If this argument is accepted, a defendant on probation would not
be eligible to receive the benefit of section 1170.18 resentencing hearing.
However, a contrary argument has been made that the term “sentence” was used in a more generic
fashion: that a defendant has been sentenced when probation is granted and terms are imposed.
“[T]he term ‘sentence’ can also be understood to refer more generally to criminal sanction, whether
by probation, prison term, or otherwise, and the relevant phrase from section 1170.18 can be
interpreted to mean, in effect, ‘currently subject to judicially imposed sanction’ as a result of a felony
conviction. This is likely the plain meaning of the term ‘sentence’.” (People v. Davis 2016 WL
1242634, at *6.) “Further, California Rules of Court, rule 4.405 defines ‘“Sentence choice”’ as ‘the
selection of any disposition of the case that does not amount to a dismissal, acquittal, or grant of a
new trial,’ thereby including probation as a sentence choice.” (See People v. Davis 2016 WL
1242634, at *6.) And “[j]udicial decisions have also used the term ‘sentence’ in this manner.” (Ibid
[listing decisions].)
This interpretation is consistent the ordinary legal meaning of “judgment of conviction” which is “a
verdict of guilty or the confession of the defendant in open court, and not the sentence or judgment.”
(People v. Castello (1998) 65 Cal.App.4th 1242, 1253.) There is also some support in the analysis
of the Legislative Analyst for treating probationers as “serving a sentence.” “In a background
discussion of ‘Felony Sentencing,’ the analyst discussed commitment to state prison, commitment to
county jail, and placement on probation. All of these options were presented as ways in which
‘[o]ffenders convicted of felonies can be sentenced.’ (Ballot Pamphlet, supra, analysis of the Legis.
Analyst, p. 34.) Similarly, in discussing ‘Misdemeanor Sentencing,’ the analyst stated, ‘Under
current law, offenders convicted of misdemeanors may be sentenced to county jail, county
community supervision, a fine, or some combination of the three.’ (Id. at pp. 34–35.) A voter who
reviewed the official ballot pamphlet therefore had reason to believe that ‘serving a sentence’ for a
felony included placement on probation, as well as a term of confinement.” (People v. Davis 2016
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WL 1242634, at p. *7 [and noting “several reported decisions (People v. Amaya (2015) 242
Cal.App.4th 972, 974–975; People v. Hoffman (2015) 241 Cal.App.4th 1304, 1308–1309; and
People v. Rivas–Colon (2015) 241 Cal.App.4th 444, 447) have considered appeals from
probationers who filed petitions under section 1170.18 without questioning the right of those
petitioners to file a petition.”].) In addition, “there is nothing in either the ballot materials or the
statutory language that appears to limit the phrase ‘currently serving a sentence for a conviction’ to
those serving a term of imprisonment” and that to interpret it otherwise would lead to absurd
consequences. (People v. Garcia (2016) 245 Cal.App.4th 555, 559.)
Finally, allowing a defendant who is in custody serving a prison sentence to obtain the benefit of a
reduction but not a defendant placed on probation would raise potential equal protection issues as
there appears to be no rational basis for drawing such a distinction. (See People v. Davis 2016
WL 1242634, at p. *8 [“If the electorate was willing to extend the remedy of recall to felons
sentenced to prison, they presumably would be even more willing to extend that remedy to
probationers. We are unaware of any plausible explanation for making a distinction between
probationers and persons sentenced to confinement in this respect.”].)
In any event, for now, the issue has been resolved in favor of finding defendants on probation are
currently serving a sentence as that term is used in section 1170.18. (See People v. Garcia (2016)
245 Cal.App.4th 555, 559; People v. Davis 2016 WL 1242634, *2; see also People v. Shabazz
(2015) 237 Cal.App.4th 303, 310 [stating that section 1170.18, subdivision (a), applies to defendants
“sentenced or placed on probation prior to Proposition 47’s effective date”]; People v. Scott (2014)
58 Cal.4th 1415, 1423 [concluding in the context of similar language in Proposition 36 that “a
defendant is ‘sentenced’ when a judgment imposing punishment is pronounced even if execution of
the sentence is then suspended”].)
C.
Are persons currently on mandatory supervision pursuant to Penal
Code section 1170(h) “serving a sentence?”
It is highly likely that persons on mandatory supervision will be deemed to be serving a sentence for
purposes of Proposition 47 resentencing, considering that mandatory supervision is only imposed
after probation is denied and that Penal Code section 1170(h)(5)(B) provides “[t]he portion of a
defendant’s sentenced term that is suspended pursuant to this paragraph shall be known as
mandatory supervision.” (Emphasis added by IPG; cf., People v. Garcia (2016) 245 Cal.App.4th
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555, 558-559 [finding defendants on probation and indicating defendants in prison are both
“currently serving a sentence”].)
D. Are persons currently on parole “serving a sentence?”
Whether persons on parole are “currently serving a sentence” for purposes of section 1170.18(a) is
open to some dispute.
The argument in favor of finding a defendant on parole is “currently serving a sentence”:
Penal Code section 3000, which describes what constitutes “parole,” provides “[a] sentence
resulting in imprisonment in the state prison pursuant to Section 1168 or 1170 shall include a
period of parole supervision or postrelease community supervision, unless waived, or as
otherwise provided in this article.”
(Pen. Code, § 3000(a)(1).) Similarly, Penal Code section
1202.45, which describes when a parole restitution fine must be imposed, provides “[i]n every case
where a person is convicted of a crime and whose sentence includes a period of parole, the
court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,
assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b)
of Section 1202.4.” (Pen. Code, § 1202.45.) This language strongly suggests a “sentence” includes a
period of parole. (See also In re Jantz (1984) 162 Cal.App.3d 412, 417 [holding a “sentence,” as
used in then section 1170, subdivision (a)(2) included any applicable period of parole].)
In addition, if a defendant on parole is not viewed as currently serving a sentence then the defendant
might be removed from any further supervision and there will be no provision for assessing the
defendant’s level of dangerousness. (See this IPG memo, section IV-2-E at p. 132 [discussing
whether defendants whose sentences are re-designated as misdemeanors are still subject to PRCS].)
This would be inconsistent with one of the purposes behind Proposition 47, which states: “In
enacting this act, it is the purpose and intent of the people of the State of California to . . . (5) Require
a thorough review of criminal history and risk assessment of any individuals before resentencing to
ensure that they do not pose a risk to public safety.”
The argument against finding a defendant on parole as “currently serving a sentence” is as follows:
Proposition 47 draws a distinction between a person who is “currently serving a sentence” (§
1170.18(a)) and “a person who has completed his or her sentence for a conviction” (§ 1170.18(f)).
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Subdivision (d) (which relates to persons currently serving a sentence), in pertinent part, states: “A
person who is resentenced pursuant to subdivision (b) shall be given credit for time served and
shall be subject to parole for one year following completion of his or her sentence,
unless the court, in its discretion, as part of its resentencing order, releases the person from parole.”
(Pen. Code, § 1170.18(d).) The highlighted language seems to indicate that section 1170.18 views
parole as separate from a completed sentence. If a completed sentence were viewed as including
parole, the language in section 1170.18(d) would say “shall be subject to an additional period of
parole for one year following completion of his or her sentence. (See also In re Carabes (1983)
144 Cal.App.3d 927, 931 [noting that a “trial judge is mandated to impose a period of parole after
service of the sentence, the parole automatically follows service of the sentence, but is not inexorable
in the strictest sense because the parole board may waive parole”].)
In addition, if a defendant is already released to the community (albeit under parole supervision) is
there really any further need to assess whether the defendant poses an unreasonable risk of danger
to public safety. What is the likelihood that a defendant who already is out of custody will suddenly
be viewed as posing an unreasonable risk of danger just because parole supervision is withdrawn.
Why the question is a tricky one:
Language in Penal Code section 1170(a) cuts both ways. In relevant part, it provides: “In any case in
which the amount of preimprisonment credit under Section 2900.5 or any other provision of law is
equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence shall be
deemed to have been served and the defendant shall not be actually delivered to the custody of
the secretary. The court shall advise the defendant that he or she shall serve a period of
parole and order the defendant to report to the parole office closest to the defendant's last legal
residence, unless the in-custody credits equal the total sentence, including both
confinement time and the period of parole.”
The first sentence seems to indicate that a defendant may be placed on parole after an “entire
sentence” has been served. The second sentence seems to indicate that the “total sentence” includes
the period of parole. The eventual answer may turn on whether the word “sentence” is equated with
the phrase “term of imprisonment.” If it is, then defendants on parole have completed their
sentence. If it is not, then defendants on parole are likely to be viewed as currently serving a
sentence.
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In People v. Armogeda (2015) 240 Cal.App.4th 1039 [rev. gtd, dkt #S230374], the court
concluded the word “sentence,” as used in subdivisions (a) and (f), includes a prison term and a
corresponding period of parole or PRCS and thus, a defendant placed on parole or PRCS is
“currently serving” a sentence for purposes of section 1170.18. (Id. at pp. 1046-1047.) However,
Armogeda was subsequently taken up by the California Supreme Court, and decision was deferred
pending consideration and disposition of a related issue in People v. Morales (2015) 238
Cal.App.4th 42 [rev. gtd, dkt # S228030] or pending further order of the court. (Armogeda, dkt #
#S230374.
E.
Are persons currently on post-release community supervision
(PRCS) “serving a sentence?”
Whether persons on Post-release Community Supervision or PRCS are “currently serving a
sentence” for purposes of section 1170.18(a) is open to some dispute.
The argument in favor of finding a defendant on PRCS is “currently serving a sentence”:
Penal Code section 3000 provides “[a] sentence resulting in imprisonment in the state prison
pursuant to Section 1168 or 1170 shall include a period of parole supervision or postrelease
community supervision, unless waived, or as otherwise provided in this article.” (Pen. Code, §
3000(a)(1).) This language strongly suggests a “sentence” includes a period of PRCS.
As pointed out by Judge Couzens’ Memorandum on Proposition 47 (which is posted on the CDAA
website: https://www.cdaa.org/wp-content/uploads/Couzens-Prop-47-Memo-Nov-5.pdf), “[a]
recent case from the California Supreme Court seems to address this issue in a different context.
People v. Nuckles (2013) 56 Cal.4th 601, 609 (Nuckles) observes that the prison term is the
actual time served in prison before release on parole and the day of release marks the end of the
prison term. (Nuckles at p. 608.) It goes on to say, however, that “[a]lthough parole constitutes a
distinct phrase from the underlying prison sentence, a period of parole following a prison term has
generally been acknowledged as a form of punishment accruing directly from the underlying
conviction. ‘[P]arolees are on the “continuum” of state-imposed punishments.’ (Samson v.
California (2006) 547 U.S. 843, 850 (Samson).) Further, parole is a form of punishment
accruing directly from the underlying conviction. As the Attorney General observes, parole is a
mandatory component of any prison sentence. ‘A sentence resulting in imprisonment in the state
prison . . . shall include a period of parole supervision or postrelease community supervision, unless
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waived . . . .’ (§ 3000, subd. (a)(1).) Thus, a prison sentence contemplates a period of parole, which
in that respect is related to the sentence.’ [citation omitted]” (Nuckles at p. 609.) Nuckles thus
suggests that persons on PRCS are still serving their sentence and would be required to petition for
relief under sections 1170.18(a)-(e), which will include a determination of dangerousness.
In addition, if PRCS is not viewed as currently serving a sentence then the defendant might be
removed from any further supervision and there may be no procedure for assessing the defendant’s
level of dangerousness. (But see this IPG memo, section IV-2-E at pp. 133-134 [discussing whether
defendants whose sentences are re-designated as misdemeanors are still subject to PRCS].) This
would be inconsistent with one of the purposes behind Proposition 47, which states: “In enacting
this act, it is the purpose and intent of the people of the State of California to . . . (5) Require a
thorough review of criminal history and risk assessment of any individuals before resentencing to
ensure that they do not pose a risk to public safety.”
The argument against finding a defendant on PRCS is “currently serving a sentence”:
Penal Code section 3451(a) states: “Notwithstanding any other law and except for persons serving a
prison term for any crime described in subdivision (b), all persons released from prison on and after
October 1, 2011, or, whose sentence has been deemed served pursuant to Section 2900.5
after serving a prison term for a felony shall, upon release from prison and for a
period not exceeding three years immediately following release, be subject to
community supervision provided by a county agency designated by each county's board of
supervisors which is consistent with evidence-based practices, including, but not limited to,
supervision policies, procedures, programs, and practices demonstrated by scientific research to
reduce recidivism among individuals under postrelease supervision. (Emphasis added by IPG.)
If PRCS is imposed on a defendant “whose sentence has [already] been deemed serve” it seems that
the Penal Code does not treat PRCS as part of a sentence.
In addition, if a defendant is already released to the community (albeit under PRCS) is there really
any further need to assess whether the defendant poses an unreasonable risk of danger to public
safety. What is the likelihood that a defendant who already is out of custody will suddenly be viewed
as posing an unreasonable risk of danger just because PRCS is withdrawn?
Several cases have taken a stab at the issue – but all have been taken up for review by the California
Supreme Court.
133
In People v. Morales (2015) 238 Cal.App.4th 42 [rev. gtd, dkt # S228030], the Court of Appeal
held that a defendant who was released on PRCS at the time he petitioned to have his sentence
recalled was “serving a sentence” for purposes of Proposition 47. (Id. at pp. 45-49 [albeit also
indicating that if the defendant’s one-year period of parole was greater than the amount of time left
on defendant’s felony parole, the one-year period of parole would be barred or limited by section
1170.18(e), which states, “Under no circumstances may resentencing under this section result in the
imposition of a term longer than the original sentence.”].) However, the case of Morales was taken
up by the California Supreme Court on another (but possibly also this) issue.
Similarly, in People v. Pinon (2015) 238 Cal.App.4th 1232 [rev. gtd, dkt # S229632], the same
court that decided Morales reiterated that “a defendant serving a term of PRCS is still serving his
sentence under Penal Code section 1170.18, subdivision (a), and it is thus appropriate for the court to
recall that sentence, resentence defendant to a misdemeanor, and impose one year of parole.”
(Pinon at p. 1235 [albeit making it clear that Penal Code section 1170.18(e) barred imposing a
period of 1170.18 “misdemeanor” parole on resentencing that was greater than the amount of time
left on defendant’s felony parole]. The court in People v. Armogeda (2015) 240 Cal.App.4th 1039
[rev. gtd, dkt #S230374] reached the identical conclusion to the court in Pinon. (Armogeda at pp.
1046-1047; see also People v. Jasso (unpublished and unciteable) 2016 WL 826344, at *2 [rev.
filed].)
However, both the cases of Pinon and Armogeda were taken up by the California Supreme Court
and deferred “pending consideration and disposition of a related issue in” People v. Morales
(2015) 238 Cal.App.4th 42 [rev. gtd, dkt # S228030]. (See People v. Pinon, dkt # S229632;
People v. Armogeda, dkt #S230374.)
In any event, the question of whether a person placed on PRCS is currently serving a sentence will
likely be resolved in the same manner as the question of whether a person placed on parole is
currently serving a sentence since both parole and PRCS follow release from confinement in prison.
3.
What starts the process of resentencing?
The defendant must file a petition pursuant to subdivision (a) of section 1170.18. Subdivision (b) of
section 1170.18 states: “Upon receiving a petition under subdivision (a), the court shall determine
whether the petitioner satisfies the criteria in subdivision (a).” (Emphasis added by IPG.)
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4.
Does the petition have to be a written petition?
The petition does not have to be a written petition. An oral motion is sufficient to satisfy statutory
requirement of a “petition.” (People v. Amaya (2015) 242 Cal.App.4th 972, 974; accord People
v. Franco (2016) 245 Cal.App.4th 679, 683 [albeit recognizing “some language in the statute
suggests that its drafters anticipated that petitions would be in written form”].)
5.
Where must the petition be filed?
The petition should be filed “before the trial court that entered the judgment of conviction in his or
her case[.]” (Pen. Code, § 1170.18(a).) Thus, a defendant who has filed a petition for resentencing in
a court where the defendant suffered a recent conviction may not ask that same court to reduce the
priors used to enhance that conviction if the priors used to enhance the recent conviction arose in
another jurisdiction. (People v. Marks (2015) 243 Cal.App.4th 331, 335.)
6.
When must the petition be filed?
Subdivision (j) of section 1170.18 states: “Any petition or application under this section shall be filed
within three years after the effective date of the act that added this section or at a later date
upon a showing of good cause.” (Emphasis added by IPG.) Thus, the petition must be filed before
November 5, 2017 absent good cause for not doing so. However, section 1170.18 does not define
what constitutes “good cause.”
*Editor’s note: There currently is an assembly bill that would, if passed, eliminate the three-year
limitation on when the petitions could be brought. (See AB 2765 [2015-2016 Legislative session].)
7.
What must be included in the petition?
Section 1170.18 does not describe specifically what must be included in the petition, but subdivision
(b) of section 1170.18 provides that upon receiving a petition, “the court shall determine whether the
petitioner satisfies the criteria in subdivision (a)” and the criteria in subdivision (a) is whether a
defendant is “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 the act that added this section (‘this
act’) had this act been in effect at the time of the offense....” (People v. Triplett (2016) 244
Cal.App.4th 824, 831 [rev. filed].)
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“In a successful petition, the offender must set out a case for eligibility, stating and in some cases
showing the offense of conviction has been reclassified as a misdemeanor and, where the offense of
conviction is a theft crime reclassified based on the value of stolen property, showing the value of the
property did not exceed $950.” (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137.) “The
defendant must attach information or evidence necessary to enable the court to determine eligibility.
(Id. at p. 137.)
In the case of People v. Amaya (2015) 242 Cal.App.4th 972, the appellate court held an oral
motion made when defendant admitted a probation revocation was sufficient where the defendant
on probation for 6 counts of commercial burglary and simply stated he wanted to reduce “this” to a
misdemeanor. (Id. at p. 975.)
*Editor’s note: See also this IPG memo, section IV-10 at pp. 138-140 for a more in-depth discussion of
what will or will not satisfy the defendant’s burden of proof
8.
Can a petition be denied without a hearing?
Section 1170.18(b) specifically provides that “[u]pon receiving a petition under subdivision (a), the
court shall determine whether the petitioner satisfies the criteria in subdivision (a).” (Pen. Code, §
1170.18(b).) “The statute does not expressly require the trial court to hold a hearing before
considering the eligibility criteria, nor is there a reference to the taking of ‘evidence’ or other
proceeding that would compel involvement by the parties.” (People v. Perkins (2016) 244
Cal.App.4th 129, 137 citing to People v. Bradford (2014) 227 Cal.App.4th 1322, which interpreted
nearly identical statutory language in Penal Code section 1170.126(e) – the resentencing provision of
the Three Strikes resentencing statute enacted by Proposition 36].)
It appears that if the petition on its face does not establish the defendant meets the eligibility
criteria, it may be denied without a hearing. In People v. Perkins (2016) 244 Cal.App.4th 129, the
court “read the statute to fairly imply that in the normal case the superior court will rule on the basis
of the petition and any supporting documentation.” (Id. at p. 137.) Thus, when “[f]aced with such a
petition, a superior court often will be able to grant or deny relief without a hearing.” (Id. at p. 138.)
This is because the initial decision on eligibility (i.e., whether the crime qualifies for reduction to a
misdemeanor and whether the defendant previously has suffered any disqualifying convictions)
“typically can be made without a hearing because eligibility is often obvious on the incontrovertible
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written record.” (People v. Fedalizo 2016 WL 1242636, *6 [citing to People v. Perkins (2016)
244 Cal.App.4th 129, 137]; see also People v. Sherow (2015) 239 Cal.App.4th 875, 880
[affirming trial court denial of petition where there was “virtually no information regarding (the
petitioner’s) eligibility for resentencing” but without prejudice to defendant to file proper petition];
People v. Gomez (2015) 243 Cal.App.4th 319, 325 [rhg. gtd] [“Under Penal Code section 1170.18,
subdivision (b), the trial court first determines whether the petition has presented a prima facie case
for relief under Penal Code section 1170.18, subdivision (a)”].)
The superior court may summarily deny relief based on a facially deficient petition. For example,
“[r]esentencing may be denied based solely on the fact of a prior conviction of a designated ‘super
strike’ or any offense requiring registration as a sex offender under section 290(c).” (People v.
Perkins (2016) 244 Cal.App.4th 129, 138.) Similarly, the petition may be summarily denied if the
offender is seeking resentencing for a crime that has not been reclassified as a misdemeanor. (Ibid.)
“In other cases, the superior court may be able to determine whether a petitioner is eligible for
resentencing simply by consulting the record of conviction or evidence submitted by the parties.”
(Id. at p. 138.)
9.
Who has the burden of proof to establish the facts upon which
eligibility is based?
Although the statute is silent as to who has the burden of proof, courts have held the defendant
requesting resentencing under Proposition 47 has the burden of establishing his or her eligibility for
such resentencing. (People v. Sherow (2015) 239 Cal.App.4th 875, 878; accord People v. Bush
(2016) 245 Cal.App.4th 992 [200 Cal.Rptr.3d 190, 202]; People v. Bias (2016) 245 Cal.App.4th
302, 306 [rev. filed]; People v. Brown (2016) 244 Cal.App.4th 1170, 1180 [rev. filed]; People v.
Triplett (2016) 244 Cal.App.4th 824, 830 [rev. filed]; People v. Perkins (2016) 244 Cal.App.4th
129, 136; People v. Ortiz (2016) 243 Cal.App.4th 854, 861 [rev. gtd, dkt # S232344]; People v.
Gonzalez (2016) 244 Cal.App.4th 1058, 1070 [rev. filed]; People v. Rivas-Colon (2015) 241
Cal.App.4th 444, 449; see also Evid. Code, § 500 [“[e]xcept as otherwise provided by law, a party
has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim
for relief or defense that he is asserting.”].)
This initial burden requires to the petitioner to show “the petitioner is currently serving a felony
sentence for a crime that would have been a misdemeanor had Proposition 47 been in effect at the
time the crime was committed. If the crime under consideration is a theft offense under sections
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459.5, 473, 476a, 490.2 or 496, the petitioner will have the burden of proving the value of the
property did not exceed $950.” (People v. Sherow (2015) 239 Cal.App.4th 875, 879 [quoting
Couzens & Bigelow, Proposition 47 “The Safe Neighborhoods and Schools Act” (Feb. 2015)
www.courts.ca.gov/documents/Prop-47-Information.pdf [as of August 10, 2015] p. 40; accord
People v. Brown (2016) 244 Cal.App.4th 1170, 1180 [rev. filed]; ; People v. Perkins (2016) 244
Cal.App.4th 129, 136-137; People v. Gomez (2015) 243 Cal.App.4th 319, 326 [rhg. gtd]; People v.
Rivas-Colon (2015) 241 Cal.App.4th 444, 449.)
10. What is the burden of proof the defendant must meet in
establishing the facts upon which eligibility is based?
Only one case has identified the level of the burden of proof that must be met in establishing initial
eligibility. In People v. Bush (2016) 245 Cal.App.4th 992 [200 Cal.Rptr.3d 190], the court stated
that “trial court must determine if the petitioner is eligible for resentencing under section 1170.18
based on a preponderance of the evidence.” (Id. at p. 196.) In support of this conclusion, the
Bush court cited to People v. Osuna (2014) 225 Cal.App.4th 1020, 1040. However, Osuna was
a case involving a Proposition 36 “Three Strikes” resentencing hearing. The Osuna court stated a
trial court need only find the existence of a disqualifying factor by a preponderance of the evidence.
In Bush, the question was whether the defendant established he was qualified for resentencing.
(Id. at p. 1040.)
In any event, in coming to its conclusion, the Osuna court relied on Evidence Code section 115
which establishes the default burden of proof on the moving party when no burden is actually stated
in the statute. (See Osuna at p. 1040; Evid. Code, § 115 [“Except as otherwise provided by law, the
burden of proof requires proof by a preponderance of the evidence.”].) Section 115 provides support
for the Bush court’s conclusion. (But see People v. Arevalo (2016) 244 Cal.App.4th 836, 853
[finding trial court must find existence of facts disqualifying Three Strikes defendant from
resentencing using a reasonable doubt standard – at least where the facts relied upon were not
expressly proven to the jury or admitted by way of plea].)
Below are some cases in which the court held the initial burden was not met because
there was insufficient evidence to show eligibility:
In People v. Perkins (2016) 244 Cal.App.4th 129, the court held a defendant did not provide
sufficient information to allow the court to determine whether the criteria in subdivision (a) was met
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where the defendant filed a form stating he was convicted for receipt of stolen property and that the
value of the property did not exceed $950 but provided no information “whatsoever on the nature
and value of the stolen property.” (Id. at p. 137.) The court found the form lacking because the
defendant (i) did not indicate the “factual basis of his claim regarding the value of the stolen
property”; (ii) did not “describe the stolen credit card that provided the basis for the receiving stolen
property count or even indicate that the credit card was the sole basis for the conviction”; (iii) “did
not address the trial evidence indicating he also possessed other items along with the credit card, all
stolen from the same victim” and (iv) did not “provide citations to the record of conviction that
would have directed the superior court to such evidence.” (Id. at p. 137.)
In People v. Gomez (2015) 243 Cal.App.4th 319 [rhg. gtd], the court held defendant did not meet
his initial burden of showing the value of the vehicle he took was less than $950 where the record of
conviction did not establish this fact as he entered a guilty plea and waived his right to a probation
referral; and defendant never stated in the petition the vehicle taken was valued at less than $950.
(Id. at pp. 326-327.)
And in People v. Ortiz (2016) 243 Cal.App.4th 854 [rev. gtd, dkt # S232344], the court held the
defendant did not meet the burden of showing the vehicle taken was under $950 where the record
simply showed the victims bought the vehicle for $1,000 and that they sold it for $300 after
recovering it, but the victims claimed the vehicle was damaged while in defendant's possession and
the record did not show how long ago the victims bought the car or how far they drove it before it
was stolen. (Id. at p. 861.)
In People v. Sherow (2015) 239 Cal.App.4th 875, the court held defendant failed to meet his
burden of showing that his burglary convictions were eligible for reduction where the defendant had
been convicted of five different burglaries and he sought resentencing of all five counts without any
separate discussion of the counts, no reference to facts or evidence, and no argument. (Id. at pp.
877.) The Sherow court held that a proper petition would “certainly contain at least [the
petitioner’s] testimony about the nature of the items taken. (Id. at p. 880.)
Case indicating initial burden showing eligibility was met
In People v. Bush (2016) 245 Cal.App.4th 992 [200 Cal.Rptr.3d 190], the court held that a
defendant met his initial burden of showing eligibility for reduction of his felony convictions for
receiving stolen property where the record (though sparse because the trial court lost defendant’s
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petition) were each based on single stolen identification card, and in such cases “generally the
monetary loss to the victim is difficult to quantify as exceeding $950. (Id. at pp. 201-202.)
11.
What can be considered by the court in assessing whether
defendant has met his or her burden - either at the point of the
initial showing of eligibility or at the hearing on whether the
petition should be granted?
It is unclear exactly what type of documentation may be considered either in a court’s initial review
of the petition or at the resentencing hearing itself. (See People v. Romanowski (2015) 242
Cal.App.4th 151, 159, fn. 2 [rev. gtd, dkt # S231405] [leaving open the question of whether a trial
court’s determination of the value of the property involved must be based on the record of
conviction]; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 450, fn. 3 [declining to consider
whether trial court properly relied on a police report and receipt attached to the prosecution’s
response to defendant’s petition was the kind of evidence a trial court could consider in ruling on
the petition].)
At a minimum, the “record of conviction” may be considered in deciding whether a defendant has
meet his initial burden of showing he is eligible for reduction. (See People v. Gomez (2015) 243
Cal.App.4th 319 at pp. 326-327 [rhg. gtd]; People v. Ortiz (2016) 243 Cal.App.4th 854, 861 [rev.
gtd, dkt # S232344]; see also People v. Bias (2016) 245 Cal.App.4th 302, 308 [rev. filed]
[considering the record of defendant's conviction, including the preliminary hearing transcript, to
determine the intent with which defendant entered a bank excluded defendant from resentencing].)
But whether the resentencing court may go beyond the record of conviction is a matter of dispute.
In People v. Perkins (2016) 244 Cal.App.4th 129, the court indicated that the resentencing court
should be able to consider not only the record of conviction but “evidence submitted by the parties”
– at least where the “matter of eligibility concerns facts that were not actually adjudicated at the time
of the petitioner's original conviction[.]” (Id. at pp. 138, 139.) The Perkins court recognized that in
People v. Bradford (2014) 227 Cal.App.4th 1322, the court held that evidence submitted at a
resentencing hearing under the Three Strike Reform Act must be from the record of conviction.
However, the Perkins court drew a distinction between resentencing hearings under Proposition 47
and resentencing hearings under Proposition 36 (see Pen. Code, § 1170.126(e)) on this point, noting
that eligibility for resentencing under Proposition 36 “turns on the nature of the petitioner’s
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convictions—whether an offender is serving a sentence on a conviction for nonserious, nonviolent
offenses and whether he or she has prior disqualifying convictions for certain other defined offenses”
whereas “under Proposition 47, eligibility often turns on the simple factual question of the value of
the stolen property.” (Id. at p. 140, fn. 5.) The Perkins court stated: “In most such cases, the value
of the property was not important at the time of conviction, so the record may not contain sufficient
evidence to determine its value. For that reason, and because petitioner bears the burden on the
issue (Evid.Code, § 500), we do not believe the Bradford court’s reasons for limiting evidence to
the record of conviction are applicable in Proposition 47 cases.” (Perkins at p. 140, fn. 5.) The
Perkins court cautioned that its statement in this regard “does not mean there will be a mini-trial
on the value of stolen property in every case, only that offenders may submit extra-record evidence
probative of the value when they file their petitions for resentencing.” (Ibid.) And in People v.
Sherow (2015) 239 Cal.App.4th 875, the court suggested a defendant’s petition could be
supplemented by a declaration or testimony from the defendant about the nature of the items taken.
(Id. at p. 880.)
On the other hand, in People v. Triplett (2016) 244 Cal.App.4th 824 [rev. filed], the court held
that in adjudicating eligibility for resentencing, “the trial court must determine the facts needed to
adjudicate eligibility based on evidence obtained solely from the record of conviction.” (Id. at p. 831
[citing to People v. Bradford (2014) 227 Cal.App.4th 1322, which construed almost identical
language in the Three Strikes Reform Act of 2012 (Proposition 36)].)
The rationale the Triplett court gave for adopting this principle in the context of Proposition 47 was
the same used in the context of Proposition 36: “Had the drafters . . . intended the trial court to
consider newly offered ‘evidence’ at the eligibility stage, they would have included express language
of the type they did to describe the nature of the court's later, discretionary sentencing
determination. [Citation.] Further, ..., consideration that is limited to the record of conviction
promotes the efficient administration of justice while preventing relitigation of the circumstances of
a crime committed years ago, which could potentially implicate other constitutional concerns.”
(Triplett at p. 832 citing to Bradford at p. 39.)
That being said, the Triplett court went on to state “that in determining eligibility for sentence
modification under the Act, a trial court is not limited to the record of conviction, but may also
consider any factual stipulations or clear agreements by the parties that add to, but do not
contradict, the record of conviction.” (Id. at p. 832.) Nevertheless, the agreement must be clear. In
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Triplett, there were factual representations by the People, accepted by defendant, that indicated the
amounts at issue in one conviction was less than $950 but there was no agreement solicited or
offered as to the amount at issue as to the other conviction. Although defendant’s counsel did later
state that “[a]ll three of the acts are under $950” and the prosecutor did not dispute that statement,
the Triplett court held “an uncontested comment is not the same as a clear agreement and declined
to “expand the facts outside the record that a court may consider in this context to include mere
representations to which no protest was lodged.” (Id. at p. 833.)
In People v. Hoffman (2015) 241 Cal.App.4th 1304, the court stated that where the original plea
involved a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), the trial court would be
allowed “to rely on facts underlying the dismissed counts to make whatever sentencing
determinations were authorized under section 1170.18.” (Hoffman at p. 1311.)
12. If the allegations in the petition are disputed by the People,
should an evidentiary hearing take place?
A court has authority to consider additional evidence or hold a hearing. Section 1170.18 itself
suggests a hearing may be held. Subdivision (h) of section 1170.18 provides: “Unless requested by
the applicant, no hearing is necessary to grant or deny an application filed under subsection (f).” No
comparable provision exists when it comes to petitions for recall and resentencing under subdivision
(a). Thus, under the ordinary rules of statutory construction, it follows that a hearing is (or at least
may be) required. (See People v. Herman (2002) 97 Cal.App.4th 1369, 1384 [“When the
Legislature uses a term or phrase in one part of a statute but excludes it from another part, the
courts should not imply the missing phrase into the sections from which it was excluded.”].)
In People v. Perkins (2016) 244 Cal.App.4th 129, the court stated that where the evidence or
information provided in the initial petition was sufficient to create a dispute, “it would be
appropriate for the superior court to allow parties to address the disputed issue at a later
qualification hearing.” (Id. at p. 139 [and noting, at p. 138, that in Riverside County, the
standardized form for Proposition 47 petitions indicates the court will hold an eligibility hearing in
any case where the district attorney contests eligibility and that nothing in its opinion should be read
to disapprove the superior court's stated procedure]; see also People v. Sherow (2015) 239
Cal.App.4th 875, 880 [citing to People v. Bradford (2014) 227 Cal.App.4th 1322, 1341 for the
proposition that once the initial showing is met, “the court can take such action as appropriate to
grant the petition or permit further factual determination.”].)
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13. Is the defendant entitled to assistance of counsel in filing the
petition for recall and resentencing or at any subsequent
hearing on the petition?
Although public defenders routinely assist and participate in hearings on recall and resentencing
petitions filed pursuant to section 1170.18, it is an open question whether a defendant is entitled
to such assistance. In People v. Perkins (2016) 244 Cal.App.4th 129, the defendant contended
he was entitled to be represented by appointed counsel in proceedings related to his petition.
The appellate court stated that it did not “agree every offender is entitled to assistance of counsel
in preparing a petition for resentencing.” (Id. at p. 139, fn. 4.) However, the court took “no
position on whether the superior court must appoint counsel to represent a petitioner at an
eligibility hearing.” (Ibid.)
In People v. Rouse (2016) 245 Cal.App.4th 292, the court did take a position on that question,
stating that “when a defendant currently serving a felony sentence presents a petition pursuant
to section 1170.18, subdivision (a) and is found eligible for resentencing, that defendant is
entitled to the assistance of counsel at resentencing in every case involving a judgment of
conviction of more than one felony such that the court has discretion to restructure the sentence
on all counts.” (Id. at p. 301.) The Rouse court concluded that, in that circumstance, the
resentencing is a critical stage of the proceeding and the defendant’s Sixth Amendment right to
counsel kicks in. (Id. at p. 300; see also People v. Fedalizo 2016 WL 1242636, *7.)
Moreover, even if it did not, the defendant had a Due Process right to counsel. (Rouse at p.
300.) The Rouse court held that a defendant’s waiver of his right to be present at the hearing
“did not constitute a waiver of his separate right to counsel.” (Id.) The Rouse court cautioned,
however, that it was only holding the right attaches at the resentencing stage and not “[w]hether
the right to counsel attaches at an earlier stage of the petition, including the eligibility phase,” or
whether the right to counsel attaches “for an individual who has completed his or her felony
sentence and files a petition for reclassification under subdivision (f) of section 1170.18[.]” (Id.
at p. 301.)
If a trial court does appoint counsel to represent a defendant, it is “not required to determine
directly from the defendant whether he or she has consented to legal representation. As the
leading treatise on Proposition 47 aptly states: ‘It would be wasteful of court time and resources
to schedule court hearings for the purpose of determining whether a petitioner or applicant
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desires an attorney. Courts may find it most productive to refer all pro se petitions to the public
defender, which, in turn, would make personal contact with the individual.’” (People v.
Fedalizo 2016 WL 1242636, *5 [citing to Couzens, Bigelow & Prickett, Sentencing California
Crimes (The Rutter Group 2015) § 25:8.)].)
14. Is the defendant entitled to be present at the evidentiary
hearing? If so, can defendant waive his presence?
Where a trial court is conducting an unopposed eligibility review in open court only as a prelude
to resentencing and no facts are in dispute, the defendant is not entitled to be present for the
hearing. (See People v. Fedalizo 2016 WL 1242636, *7; cf. People v. Oehmigen (2014)
232 Cal.App.4th 1, 7 [no due process right to a hearing under Proposition 36 to determine
eligibility when no facts are in dispute].)
In People v. Rouse (2016) 245 Cal.App.4th 292 a case addressing the right to counsel at a
Proposition 47 resentencing hearing, the court strongly indicated that a defendant would have a
right to be present – at least where a defendant currently serving a felony sentence presents a
petition pursuant to section 1170.18(a), is found eligible for resentencing, and the case involves a
judgment of conviction of more than one felony such that the court has discretion to restructure
the sentence on all counts. (Id. at pp. 297, 300.)
A defendant must be present at any felony sentencing, but once a felony has been reduced to a
misdemeanor, resentencing can take place without the defendant being present so long as there
is a valid waiver by the defendant. (People v. Fedalizo 2016 WL 1242636, *7.)
*Editor’s note (part I of II): The following analysis is provided courtesy of Orange County DDA Keith
Bogardus: In a felony case, a defendant has both a constitutional and a statutory right to be present at any
proceeding. Article I, section 15 of the California Constitution provides, in relevant part, that “[t]he
defendant in a criminal cause has the right…to be personally present with counsel…” (Cal. Const. art. I, §
15; see also People v. Kriss (1979) 96 Cal.App.3d 913, 916 [right of the accused to be present at all
stages of the proceeding is grounded on article I, section 15 of the California Constitution]). This right has
also been guaranteed by statute. California Penal Code section 977, subdivision (b), mandates: “In all cases
in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the
preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at
the time of imposition of sentence. The accused shall be personally present at all other proceedings unless
he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be
personally present.... (Penal Code, § 977, subd. (b)(1) [emphasis added]).
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*Editor’s note (part II of II): The defendant’s right to personal presence applies with equal force to
post-conviction hearings and resentencing proceedings that result from changes in the law with retroactive
application. The Court of Appeal’s decision in People v. Vong (1997) 58 Cal.App.4th 1063, illustrates this
point well. Following a jury trial in Vong, the defendant was convicted of possession of cocaine. (Id. at p.
1064). At sentencing, the court found that the defendant had suffered two prior felony “strike” convictions
but concluded that it did not have the discretionary power to strike any of those prior convictions. (Ibid.)
The appellate court held the trial court did have such discretionary power based on the then recently
enacted decision People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The Vong court
remanded the case to the trial court for a new sentencing hearing so the trial court could decide whether to
exercise its discretion to dismiss the prior convictions. (Id. at 1068.) Significantly, the Court in Vong held
that, absent a valid waiver, the defendant’s personal presence at the resentencing hearing was required.
The Vong court noted that section 977(b)(1), specifically requires that defendants in felony cases to be
personally present at arraignment, preliminary hearing, evidence-taking sessions of trial, and imposition of
sentence and to be present “at all other proceedings,” unless this right is waived by a written waiver
executed in open court and that defendant’s motion to dismiss a “strike” under Penal Code section 1385
was an “other proceeding” at which defendant's personal presence is required. (Id. at 1066-1068
[emphasis added, italics original].) The Supreme Court's decision in In re Cortez (1971) 6 Cal. 3d 78
similarly supports the necessity of the defendant’s presence at a post-conviction hearing or resentencing
proceeding prompted by a change in the law with retroactive application. The defendant in Cortez had
been convicted of a felony narcotics offense and his subsequent felony sentence was based, in part, upon an
enhancement for a prior narcotics conviction. At the time of the defendant’s sentencing, Health & Safety
Code section 11718 prohibited the court from dismissing the prior narcotics convictions without previous
approval of the prosecutor. (Id. at p. 82.) After the defendant was sentenced, the Supreme Court decided
People v. Tenorio (1970) 3 Cal.3d 89, holding section 11718 unconstitutional, and making its decision
fully retroactive. The defendant then filed a habeas corpus petition seeking relief from his sentence
enhancement under Tenorio. The trial court denied this relief without conducting a hearing in the
defendant’s presence. A unanimous Supreme Court reversed and held that Cortez “was entitled to a
hearing on his petition at which he is present in person and represented by counsel.” (Cortez, supra, 6
Cal.3d at p. 88 [emphasis added].) Significantly, the right to personal presence at a resentencing hearing
under the Three Strikes Reform Act has already been recognized by the Court of Appeal in People v.
Tubbs (2014), 230 Cal. App. 4th 578 (Tubbs). As previously stated, the petition and resentencing
provisions of section 1170.18 are modeled after the language in section 1170.126. In fact, the language of
each statute identically provides that a person may “petition for a recall of sentence” “before the trial court
that entered the judgment of conviction in his or her case to request resentencing…” (Compare, Penal Code
§1170.18, subd. (a), with §1170.126, subd. (b).) Reviewing this resentencing provision in section 1170.126,
subd. (b), the Court in Tubbs stated that “[t]he defendant … [has] the right to notice of any resentencing
and the right to be present at any resentencing hearing.” (People v. Tubbs (2014), 230 Cal. App. 4th 578
[emphasis added]).
145
15. Is the defendant entitled to represent himself at the evidentiary
hearing?
In People v. Fedalizo 2016 WL 1242636, the defendant was convicted of, among other
offenses, four counts of felony second degree burglary and one count of receiving stolen
property; he was placed on probation. Later, he was charged and convicted of counterfeiting a
seal. That offense also served to revoke his probation on his earlier burglaries. The defendant
represented himself at the sentencing hearing on his new offense and the probation revocation.
After Proposition 47 passed, the defendant filed a petition in propria persona to reduce his five
felony convictions for burglary and receiving stolen property as well as a similar petition to
reduce his felony conviction for counterfeiting a seal in case. The trial court held a hearing on
the petitions in the absence of the defendant. The record reflected defendant was “represented”
by appointed counsel but not when counsel was appointed to represent defendant. The trial
court reduced all but the seal counterfeiting convictions to misdemeanors and resentenced him
to three years in county jail. (Id. at pp. *2-*3.) The defendant claimed that he was deprived of
his right to represent himself at the hearing, but the appellate court held that defendant had
implicitly waived the right to represent himself. However, the appellate court indicated that the
defendant would have the right to represent himself at the hearing in the absence of a waiver.
(Id. at p. 5, fn. 7.)
16. Is the defendant entitled to a jury trial on his eligibility for
resentencing?
“The Sixth Amendment provides that those ‘accused’ of a ‘crime’ have the right to a trial ‘by an
impartial jury.’” (Alleyne v. United States (2013) 133 S.Ct. 2151, 2156.) “This right, in
conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury
beyond a reasonable doubt.” (Ibid.) In Apprendi v. New Jersey (2000) 530 U.S. 466, the High
Court held that for purposes of the Sixth Amendment, any fact that increases the statutory
maximum sentence attached to a crime is considered an “element” of the crime that must be found
true by the jury. (Id. at p. 490.) The Apprendi decision gave birth to a line of cases both
expanding and explaining this aspect of the Sixth Amendment. For example, relying on Apprendi,
the High Court in Alleyne v. United States (2013) 133 S.Ct. 2151 held if a fact requires the
imposition of a mandatory minimum sentence, it too is considered an element of the crime that must
be proved at jury trial beyond a reasonable doubt. (Alleyne at p. 2155.)
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In People v. Rivas-Colon (2015) 241 Cal.App.4th 444, the defendant argued he was entitled to a
jury trial on the value of the stolen property at a section 1170.18 resentencing hearing because the
“value of the property ... goes to the very heart of the crime” of shoplifting (§ 459.5) and thus is
“subject to a requirement of a jury trial” under Apprendi v. New Jersey (2000) 530 U.S. 466,
490 and Blakely v. Washington (2004) 542 U.S. 296, 303. (Rivas-Colon at p. 451.) However,
the Rivas-Colon court rejected this argument. (Id. at pp. 451-452.)
The Rivas-Colon court distinguished the Apprendi line of cases on the grounds that a defendant
seeking resentencing has already been convicted beyond a reasonable doubt and the question
presented at a resentencing petition is “not whether to increase the punishment for his offense, but
whether [the defendant is] eligible for a potential reduction of his sentence.” (Rivas-Colon at p.
451 citing Couzens & Bigelow, Sentencing California Crimes (The Rutter Group 2013) § 25:6, p. 25–
59.) More recently, the court in People v. Ortiz (2016) 243 Cal.App.4th 854 [rev. gtd, dkt #
S232344], held a defendant is not entitled to a jury trial on the factual findings underlying eligibility
for resentencing because “[a] defendant’s Sixth Amendment right to have essential facts found by a
jury beyond a reasonable doubt does not apply to limits on downward sentence modifications.” (ld.
at p. 862; see also People v. Rouse (2016) 245 Cal.App.4th 292, 298-299.)
Both Rivas-Colon and Ortiz relied on the decision in People v. Superior Court (Kaulick)
(2013) 215 Cal.App.4th 1279, which held that a defendant was not entitled to jury trial on
question of whether he posed an unreasonable risk of danger to the public in the context of a
Proposition 36 Three Strikes resentencing hearing because, inter alia, “dangerousness is not a
factor which enhances the sentence imposed when a defendant is resentenced” but “is a hurdle
which must be crossed in order for a defendant to be resentenced at all.” (Kaulick at pp. 13011305; accord People v. Myers (2016) 245 Cal.App.4th 794 [200 Cal.Rptr.3d 19, 28]; People
v. Osuna (2014) 225 Cal.App.4th 1020, 1040; see also People v. Bradford (2014) 227
Cal.App.4th 1322, 1334 [holding a trial court may consider facts not previously adjudicated at a
Proposition 36 resentencing hearing without violating defendant’s right to a jury trial under the
Apprendi cases]; People v. Flores (2014) 227 Cal.App.4th 1070, 1076 [similar].)
17.
Is the prosecutor entitled to notice of the hearing or to
participate in the hearing?
Proposition 47 does not specifically provide for notice to, or participation by, the prosecution in a
section 1170.18 resentencing hearing. However, in People v. Superior Court (Kaulick)
147
(2013) 215 Cal.App.4th 1279, a case addressing issues arising in Proposition 36 Three Strikes
resentencing hearings (see this IPG memo, section III-3 at pp. 116-117), the court held the
prosecutor had a right to notice and to be present at the resentencing hearings wherein a
defendant’s future dangerousness must be determined - despite the fact no mention was made in
Proposition 36 of such a right. The Kaulick court relied on the statutory language of Penal
Code section 1170.126(f) as well as the prosecution’s right to due process. (Id. at pp. 1297-1298.)
In both Proposition 36 and Proposition 47, a court may decline to resentence a defendant
otherwise eligible for resentencing if resentencing the defendant would result in “unreasonable
risk of danger to public safety.” (Compare Pen. Code, § 1170.126(f) with Pen. Code, §
1170.18(b)(3).) In both propositions, the factors a court should consider in assessing whether a
resentenced defendant would pose an unreasonable risk of danger to public safety are the same.
(Compare Pen Code, § 1170.126(g) with Pen. Code, § 1170.18(b).) Thus, the following language
from Kaulick regarding the People’s right to notice and presence at a section 1170.126(f)
resentencing hearing is likely to apply equally to resentencing hearings under section 1170.18(b):
“In any event, the statutory language, as well as principles of due process,
demand that the prosecution be given notice and an opportunity to be
heard in response to a petition for resentencing. First, it is clear that the
statutory language contemplates a hearing on the issue of dangerousness. Penal
Code section 1170.126, subdivision (g) provides that a trial court, in exercising its
discretion on the issue of dangerousness, may consider the following factors: (1)
the petitioner's criminal conviction history; (2) the petitioner's disciplinary record
and record of rehabilitation; and (3) “[a]ny other evidence the court, within its
discretion, determines to be relevant” to the issue of dangerousness. While a
portion of the petitioner's criminal conviction history will be before the court by
means of the petition itself, no evidence of the remaining factors will be before the
court unless the prosecution is given notice and an opportunity to present such
evidence. Even if the statutory language did not expressly contemplate a hearing,
one is implied by the listing of factors which the court is to take into account in its
determination of the dangerousness issue.” (Id. at p. 1296, emphasis added.)
The Kaulick court characterized the resentencing hearing as a criminal action to which the
People are an adverse party and observed due process requires notice “must be given of any
application where the rights of an adverse party are affected, even though no statute, as here,
specifically requires it.” (Id. at p. 1297.) Moreover, the court held “the prosecution’s due process
rights include the right to a full adversarial proceeding, in which it may present evidence, as well
as argument.” (Id. at p. 1298; see also People v. Bradford (2014) 227 Cal.App.4th 1322,
1341 [citing to Kaulick for the proposition that a resentencing hearing on the defendant’s
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dangerousness under section 1170.126 “necessarily involves input from the parties and will likely
result in a contested hearing”].)
18. Are victims entitled to notice of the hearing or to participate in
the hearing before a court may reduce a felony conviction to a
misdemeanor?
Penal Code section 1170.18(o) provides: “A resentencing hearing ordered under this act shall
constitute a “post-conviction release proceeding” under paragraph (7) of subdivision (b) of
Section 28 of Article I of the California Constitution (Marsy's Law).”
Section 28(b)(7) of Article 1 provides that a victim is entitled “to reasonable notice of all public
proceedings, including delinquency proceedings, upon request, at which defendant and the
prosecutor are entitled to be present and of all parole or other post-conviction release
proceedings, and to be present at all such proceedings.”
Section 28(b)(8) of Article 1 states victims have a right “[t]o be heard, upon request, at any
proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea,
sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at
issue.”
In People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, case discussing a
victim’s right to be heard at a Proposition 36 Three Strikes resentencing hearings (see this IPG
memo, section III-3 at pp. 116-117 [discussing use of Proposition 36 cases to interpret
Proposition 47 cases), the court addressed the question of whether the victim has a right to
notice of, and to be heard at, the hearings regarding dangerousness and resentencing. (Id. at p.
1300.) Relying on language from subdivision (m) of Penal Code section 1170.126, which states
“[a] resentencing hearing ordered under this act shall constitute a ‘post-conviction release
proceeding’ under paragraph (7) of subdivision (b) of Section 28 of Article I of the California
Constitution (Marsy's Law),” the Kaulick court held the victim was entitled to notice and to be
heard at such hearings. (Id. at p. 1300.)
Since section 1170.18(o) contains identical language to that found in subdivision 1170.126(m), it
is very likely that courts will find that a section 1170.18(b) resentencing hearing similarly
requires notice to, and an opportunity to be heard, to the victim.
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19. In deciding whether a defendant would have been guilty of a
misdemeanor had Proposition 47 been in effect at the time of
the conviction, does a court consider whether other charges
were dismissed or reduced at the time of the plea?
In People v. Gonzalez (2016) 244 Cal.App.4th 1058 [rev. filed], the People contended that
eligibility for relief under section 1170.18(a) necessarily requires the court to consider the facts of all
the offenses that defendant had been charged with at the time he pled guilty to the offense for which
relief under section 1170.18 was sought. In other words, the People argued a court must take into
account whether there were other crimes charged that might not have been dismissed or reduced if
the only conviction resulting from the plea would have been a misdemeanor - and not simply the
what crime defendant actually pled to guilty to – in determining whether a defendant would have
been guilty of a misdemeanor if Proposition 47 had been in effect at the time of the plea. (Id. at p.
1069.)
However, the Gonzalez appellate court disagreed. It held the statutory language of
Proposition 47 “is entirely focused on resentencing offenders for existing, but reclassified
convictions. It says nothing at all about reopening dismissed felony charges or requiring a petitioner
to prove she would have avoided conviction of such charges to qualify for resentencing.” (Ibid.)
Accordingly, the court held the defendant in the case before it was entitled to resentencing “because
she would have been guilty of a misdemeanor under her actual conviction for grand theft from a
person, and it is irrelevant whether, under the totality of the facts underlying her offense, she would
have avoided a guilty verdict for the original robbery and burglary charges.” (Ibid; accord People
v. Brown (2016) 244 Cal.App.4th 1170, 1179 [rev. filed].)
In People v. Triplett (2016) 244 Cal.App.4th 824 [rev. filed], the prosecution argued that a
defendant convicted of a Proposition 47-eligible offense by way of plea bargain must show that he
would have secured the same plea bargain had Proposition 47 been in effect at the time of his plea.
The prosecution claimed the defendant, who had eight prior prison terms and who had been facing
two counts of second degree burglary (§ 459), two counts of passing a fictitious check (§ 476), and
two counts of forgery (§ 470, subd. (d)), all with an on-bail enhancement (§ 12022.1) would not have
been allowed to plead to only two misdemeanor counts of Penal Code section 459.5. (Id. at p. 826,
830, fn. 4.) However, the Triplett court rejected this argument, noting that Proposition 47 “does
not speak to whether defendant ‘would not have been convicted of a misdemeanor,’ but whether he
‘would have been guilty of a misdemeanor’ under the Act.” (Id. at p. 830, fn. 4 citing to Pen. Code, §
1170.18, subd. (a), italics in original.)
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20. If the defendant is serving a single sentence for multiple
convictions, some of which are eligible for Proposition 47 relief
and some of which are not, can the defendant still obtain relief
pursuant to section 1170.18?
Although the courts have not directly addressed the question, it appears to be assumed that there is
no problem with a defendant petitioning for reduction of a felony conviction that is eligible for
section 1170.18 relief even though the remaining counts of a multiple count sentence are not
similarly eligible. (See this IPG memo, section IV-27 at pp. 158-159 [discussing cases holding
defendant who obtains reduction on Proposition 47-eligible count of multi-count sentence should be
re-sentenced on the remaining counts]; cf., People v. Johnson (2015) 61 Cal.4th 674, 694
[finding a defendant was entitled to petition for recall and resentencing under the Three Strikes
Reform Act (Proposition 36) notwithstanding the fact he had been simultaneously convicted of
multiple offenses, some of which were eligible for resentencing and some of which were not, because,
inter alia, the resentencing provisions “address the eligibility for a more lenient sentence on a countby-count basis”].)
21. What does a court take into account in deciding whether the
defendant would pose an unreasonable risk of danger to public
safety?
As pointed out by the court in People v. Shabazz (2015) 237 Cal.App.4th 303, “the electorate
expressed its anticipation that a thorough review of criminal history and risk assessment of all
convicted felons be conducted before potential resentencing.” (Id. at p. 314, emphasis added by IPG;
accord People v. Diaz (2015) 238 Cal.App.4th 1323, 1332.)
Subdivision (b) of section 1170.18 identified specifically what must be taken into consideration. In
relevant part, it provides:
“In exercising its discretion, the court may consider all of the following:
(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.
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(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.”
*Editor’s note: This is the exact same criteria a court considers in assessing whether a defendant should
be granted resentencing under Proposition 36 (“The Three Strikes Reform Act of 2012”) which permits the
recall and resentencing of certain defendants who were sentenced under the Three Strikes law for
nonviolent and nonserious felonies. Thus, the same type of evidence that is admissible in the context of
resentencing hearings under section 1170.126(f) (the statute enacted by Proposition 36), should be
admissible at resentencing hearings under section 1170.18(b). (See Alameda County’s 12-10-12 Points and
Authorities on Proposition 36 at pp. 15-17 [available upon request]. Similarly, cases interpreting the type
of evidence admissible at Proposition 36 hearings may be relied upon in interpreting what type of evidence
will be admissible at Proposition 47 resentencing hearings to show a defendant poses an unreasonable risk
of danger to public safety. (See e.g., People v. Garcia (2014) 230 Cal.App.4th 763; People v. Flores
(2014) 227 Cal.App.4th 1070, 1076.)
22. Is the term “an unreasonable risk of danger to public safety”
defined?
Subdivision (c) of section 1170.18 states: “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.” (Emphasis added.) In other words, unless there is a specific risk that the defendants
(all of whom will have never committed a “super strike” in the past) will re-offend by committing a
super strike, the defendant is entitled to be released.
Indeed, in People v. Hoffman (2015) 241 Cal.App.4th 1304, the appellate court quoted from the
Voter Information Guide, rebuttal to argument against Prop. 47, at p. 39: “Prop. 47 prevents judges
from blocking the early release of prisoners except in very rare cases. For example, even if the judge
finds that the inmate poses a risk of committing crimes like kidnapping, robbery, assault spousal
abuse, torture of small animals, carjacking or felonies committed on behalf of a criminal street gang,
Proposition 47 requires their release.” (Hoffman at p. 1311.)
Applying that standard, the court in People v. Hoffman (2015) 241 Cal.App.4th 1304 held that a
defendant convicted of numerous counts of forgery, but who had no prior criminal history would not
pose an “unreasonable risk of danger to public safety” within the meaning of section 1170.18 because
the defendant was not likely to commit a “super-strike” offense. (Id. at p. 1311.)
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Former San Diego DDA (now Superior Court Judge) Lisa Rodriguez observes that even if the
defendant poses a threat to commit a super strike, this will not be sufficient if the super strike is one of the
two crimes listed in section 667(E)(2)(c)(iv) that are not “violent felonies” as defined under Penal Code
section 667.5(c), which controls the definition of “violent felony” for purposes of section 667(E)(2)(c)(iv).
(See Pen. Code, § 667(d)(1).) These two crimes are: solicitation to commit murder in violation of Penal
Code section 653f and possession of a weapon of mass destruction as defined in Penal Code section
11418(a)(1).
*Editor’s note: As mentioned above, the term “unreasonable risk of danger to public safety” is used in
both section 1170.18 and section 1170.126. Section 1170.126, unlike section 1170.18, does not define what
that term means. However, because subdivision (c) of 1170.18 states its definition of the term is the
definition “As used throughout this Code”; and, in context, the term “Code” refers to the Penal Code, the
definition of that term may also govern the definition of the term for purposes of Three Strikes
resentencing under Penal Code section 1170.126. (But see People v. Myers (2016) 245 Cal.App.4th 794
[200 Cal.Rptr.3d 19, 26-27 [“Proposition 47 contains a drafter’s error, and the phrase ‘throughout this
Code’ must be read to mean “throughout this act.”].) The question of whether the definition of the phrase
“unreasonable risk of danger to public safety” in 1170.18(c) governs the definition of that term as used in
1170.126 in general is pending before the California Supreme Court in People v. Valencia (2014) 232
Cal.App.4th 514 [rev. gtd, dkt # S223825]. The question of whether the definition of “unreasonable risk of
danger to public safety” as used in section 1170.18(c)) applies retroactively to resentencing pursuant to
Penal Code section 1170.126 where the petition for resentencing pursuant to section 1170.126 was decided
before the effective date of Proposition 47 is currently pending before the California Supreme Court in
People v. Chaney (2014) 231 Cal.App.4th 1391 [dkt # S223676]. (See also People v. Lopez (2015)
236 Cal.App.4th 518 [rev. gtd, dkt S227028, but briefing deferred pending consideration and disposition in
Valencia and Chaney]; People v. Sledge (2015) 235 Cal.App.4th 1191 [rev. gtd, dkt # S226449]
[same]; People v. Guzman (2015) 235 Cal.App.4th 847 [same]; People v. Davis (2015) 234
Cal.App.4th 1001 [same]; People v. Rodriguez (2015) 233 Cal.App.4th 1403 [same]; People v.
Superior Court (2015) 232 Cal.App.4th 1149 [same]; People v. Superior Court (Burton) (2015) 232
Cal.App.4th 1140, fn. 3 [same]; People v. Aparicio (2015) 232 Cal.App.4th 1065 [same].)
23. Who has the burden of proving the defendant poses an
unreasonable risk of danger to public safety and what is that
burden?
It is likely that the “burden” of proving the defendant poses an unreasonable risk of danger to public
safety will fall upon the prosecution and that burden will be proof by a preponderance of the
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evidence. As mentioned above, the provisions governing sentencing hearings under Proposition 36
(which deals with resentencing of defendants serving Three Strikes sentences for crimes that do not
qualify as serious or violent felonies) are very similar to the provisions governing resentencing
hearings under Proposition 47. (See this IPG memo, section IV-20 to 22, at pp. 150-152) Under
Proposition 36, if the defendant petitioning for resentencing is otherwise eligible, Proposition 36
provides that he or she shall be resentenced under current law “unless the court, in its discretion,
determines that resentencing the petitioner would pose an unreasonable risk of danger to public
safety.” (Pen. Code, § 1170.126(f).)
Cases interpreting who has the burden of proof at a resentencing hearing under section 1170.126(f)
have held the burden is on the prosecution to prove the defendant poses an unreasonable risk of
danger to the public and that this burden was met by proving this risk was posed by a preponderance
of the evidence. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1305 [and
noting that this conclusion is consistent with Evidence Code section 115, which provides that,
“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the
evidence”]; accord People v. Garcia (2016) 244 Cal.App.4th 224, 230-232 [rev. gtd, dkt#
S232679]; People v. Flores (2014) 227 Cal.App.4th 1070, 1076; see also People v. Garcia
(2014) 230 Cal.App.4th 763, 767 [noting parties agreed that the burden of proof was with the People
to prove by a preponderance of evidence that defendant posed an unreasonable risk of danger to
public safety if released].)
The Kaulick court rejected the idea that Apprendi v. New Jersey (2000) 530 U.S. 466, a case
holding that “any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt”’ or any of the cases
interpreting Apprendi required a higher burden of proof because, inter alia, “dangerousness is not
a factor which enhances the sentence imposed when a defendant is resentenced under [section
1170.126]; instead, dangerousness is a hurdle which must be crossed in order for a defendant to be
resentenced at all.” (Id. at pp. 1301-1303; accord People v. Johnson (2016) 244 Cal.App.4th
384, 390, fn. 6 [rev. filed]; People v. Garcia (2016) 244 Cal.App.4th 224, 235 [rev. gtd, dkt#
S232679]; see also People v. Rouse (2016) 245 Cal.App.4th 292, 298-299; People v. Flores
(2014) 227 Cal.App.4th 1070, 1076; People v. Osuna (2014) 225 Cal.App.4th 1020, 1038-1040;
cf., People v. Arevalo (2016) 244 Cal.App.4th 836, 842, fn. 3, 853 [standard of proof regarding
the legal determination of a defendant’s eligibility to be considered for resentencing, in light of the
trial court's findings at the bench trial, is beyond a reasonable doubt].)
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In light of this case law, it should be assumed that the People will have the burden at a resentencing
hearing under section 1170.18 of proving by a preponderance of the evidence that a defendant will
“commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2)
of subdivision (e) of Section 667.”
24. Is hearsay admissible at the portion of the resentencing hearing
addressing whether defendant poses an unreasonable risk of
danger to public safety?
It appears that hearsay may be admissible in determining whether defendant meets the eligibility
criteria for resentencing. (See this IPG memo, IV-11 at pp. 140-142.; see also People v.
Blakely (2014) 225 Cal.App.4th 1042, 1063 [court tasked with determining whether to
resentence defendant pursuant to Proposition 36’s Three Strikes Reform Act “may examine
relevant, reliable, admissible portions of the record of conviction to determine the existence or
nonexistence of disqualifying factors”]; cf., People v. Burnes (2015) 242 Cal.App.4th 1452,
1460 [finding court resentencing defendant pursuant to Proposition 36’s Three Strikes Reform
Act should not have considered unreliable probation report containing multiple hearsay when
determining that defendant was armed and thus ineligible for resentencing].)
The question of whether hearsay may be considered in assessing defendant’s eligibility for
resentencing is a somewhat different question than whether hearsay may be relied upon in
assessing the risk of danger posed by public safety assuming defendant is otherwise eligible.
In People v. Garcia (2016) 244 Cal.App.4th 224 [rev. gtd, dkt# S232679], a case involving a
Three Strikes resentencing hearing pursuant to Penal Code section 1170.126, the defendant
argued it was error to admit hearsay evidence at the risk assessment hearing because such a
hearing was not a sentencing hearing and therefore the rules of evidence must apply. The
defendant’s sole citation in support of his position was Evidence Code section 300 which states:
“Except as otherwise provided by statute, this code applies in every action before the Supreme
Court or a court of appeal or superior court....” (Id. at p. 234, fn. 5.) The Garcia court declined
to address the argument but noted “that risk assessment hearings are plainly part of potential
resentencing hearings, and courts have long been permitted to consider hearsay evidence at
sentencing hearings. (Id. at p. 234, fn. 5, citing to People v. Peterson (1973) 9 Cal.3d 717,
725–726.)
155
Prosecutors seeking to show a defendant presents an unreasonable risk of danger to the public
should look first to the actual language of section 1170.18(b) which, on its face, authorizes the
resentencing court to 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. ¶ (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.”
This language certainly seems to authorize use of hearsay evidence – albeit due process concerns
may dictate only reliable hearsay evidence is admissible. (Emphasis added by IPG.)
25. If a court denies the defendant’s petition either initially or after
a hearing, does the court have to state reasons for the denial on
the record?
In People v. Bush (2016) 245 Cal.App.4th 992 [200 Cal.Rptr.3d 190], the trial court summarily
denied a defendant petition for resentencing on several prior convictions for elder abuse (based on a
theft) in violation of Penal Code section 368 and receiving stolen property in violation of Penal Code
section 496 without providing any reasons on the record for doing so. The defendant claimed the
“trial court committed reversible error by not adequately stating its reasons for denying his
resentencing petition or specifying the materials reviewed in making the court's decision.” (Id. at p.
196.)
As to the elder abuse convictions, the appellate court held that the sentencing court’s statement that
defendant was not eligible for resentencing was sufficient because the determination was not a
factual one. Rather, “[i]t was based on statutory law limiting application of Proposition 47 to
specified crimes.” And “[a] section 368 conviction, as a matter of law, is not one of the specified
offenses eligible under section 1170.18 for resentencing.” (Id. at p. 196.)
On the other hand, as to the receipt of stolen property convictions, the appellate court held the
sentencing court should have stated reasons. The court observed whether the amount of stolen
property was under $950 was disputed and could not be determined from the record. Thus, the
sentencing court’s lack of specificity in stating why it denied defendant’s petition, coupled with the
trial court's loss of defendant's resentencing petition, prevented the appellate court from
156
“determining whether the petition provided information establishing noneligibility, which the trial
court may have relied upon when it denied defendant's petition, or whether the petition alleged facts
requiring an evidentiary hearing on the value of the property at issue[.]” (Id. at p. 201.)
Accordingly, the appellate court “reversed and remanded to the trial court for reconsideration of
defendant's resentencing petition as to the receiving stolen property convictions.” (Id. at p. 202.)
*Editor’s note: The Bush court recognized “that the burden is on the petitioner to establish
eligibility for resentencing under section 1170.18, subdivision (a)” which would suggest that the lack
of record would prevent relief to the defendant, but the court indicated the defendant had “met his
initial burden because the stolen property consisted of identification cards, in which generally the
monetary loss to the victim is difficult to quantify as exceeding $950.” (Id. at p. 201.)
26. In deciding whether a defendant is eligible for resentencing, does
it make a difference whether defendant’s conviction was obtained
by way of trial or plea?
Section 1170.18(a), in pertinent part, states: “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 the act that added this section (‘this act’) had this act been in effect at the time of the offense
may petition for a recall of sentence . . .” (Emphasis added by IPG.)
“The plain language of section 1170.18 states that it governs not only convictions by trial, but also
those obtained by plea[.]” (People v. Perry (2016) 244 Cal.App.4th 1251, 1256-1257 [rev. filed]
accord People v. Brown (2016) 244 Cal.App.4th 1170, 1177 [rev. filed]; People v. Gonzalez
(2016) 244 Cal.App.4th 1058, 1066 [rev. filed]; People v. Triplett (2016) 244 Cal.App.4th 824,
830, fn. 4 [rev. filed]; Harris v. Superior Court (2015) 242 Cal.App.4th 244, 248 [rev. gtd, dkt
#S231489]; T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652 [juvenile entitled to
Proposition 47 relief even though conviction obtained by plea agreement]; but see this IPG memo,
section IV-29 at pp. 160-172 [discussing ramifications of reduction of conviction obtained by way of
plea bargain].)
157
27. If a defendant is “resentenced” on one count that has been
reduced to a misdemeanor but defendant is serving a multicount sentence, can the resentencing court restructure the
entire sentence in light of the reduction?
If a defendant, who is serving a sentence based on multiple convictions, succeeds in obtaining
reduction of one of the felony conviction to a misdemeanor pursuant to Proposition 47, the trial
court not only is vested with jurisdiction to resentence defendant on the remaining counts, but is
required to do so. (See People v. Sellner (2015) 240 Cal.App.4th 699.)
As long as the length of the new recalculated sentence does not exceed the previous sentence
imposed (see this IPG memo, section IV-28 at p. 160), resentencing does not run afoul of Penal
Code section 1170.18(e) nor raise any jeopardy issues. (People v. Sellner (2015) 240 Cal.App.4th
699, 702.)
For example, in People v. Sellner (2015) 240 Cal.App.4th 699, the defendant was originally
sentenced on two counts, one of which was eligible for reduction pursuant to Proposition 47. On the
Proposition 47 eligible offense, defendant originally received a sentence of 3 years. The other offense
was originally the subordinate consecutive term and only an eight month sentence was imposed,
reflecting the one-third the mid-term rule. (Id. at p. 701.) When defendant successfully petitioned
to have the Proposition 47 offense reduced to a misdemeanor, the sentencing court resentenced the
defendant to two years on the remaining count (which necessarily was converted into the principle
term once the Proposition 47 count was reduced to a misdemeanor). (Id. at p. 701.) On appeal of
the resentencing, the defendant argued that she was entitled to a sentence of no more than 8
months. The appellate court, however, upheld the new sentence, reasoning that when a defendant is
sentenced consecutively for multiple convictions under Penal Code section 1170.1 (a), the judgment
or aggregate determinate term is to be viewed as interlocking pieces consisting of a principal term
and one or more subordinate terms. Thus, when there was a modification of the principal sentence
(pursuant to Proposition 47), “the trial court not only was vested with jurisdiction to resentence [on
the remaining count], it was required to do so.” (People v. Sellner (2015) 240 Cal.App.4th 699,
701-702 [albeit also noting that defendant was not strictly “resentenced” but, instead, was ordered to
serve the sentence originally imposed, two years county jail].) The Sellner court recognized that the
two year sentence was greater than the original sentence on the remaining count when considered in
a vacuum; but held that the resentencing must take into account the entire sentence which was
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longer than the two years. Since the recomputed term was less than the prior aggregate term, the
defendant was “not been punished more severely for the successful filing of a Proposition 47
petition” and no jeopardy issue arose. (Id. at pp. 701-702.)
In People v. Rouse (2016) 245 Cal.App.4th 292, the court stated that the statutory scheme of
section 1170.18 “envisions, at least where multiple counts are at issue . . ., that resentencing will
occur anew, with the court exercising its sentencing discretion and restructuring the entire
sentencing package.” (Id. at p. 300.) The Rouse court went on to state: “The purpose of section
1170.18 is to take the defendant back to the time of the original sentence and resentence him with the
Proposition 47 count now a misdemeanor.” (Id. at p. 300, citing to Couzens & Bigelow, Proposition
47 “The Safe Neighborhoods and Schools Act” (Aug. 2015) at p. 59.) “If the petitioner is resentenced
as a misdemeanor on an eligible count, but will remain sentenced as a felon on one or more other
counts, the court should resentence on all counts.” (Rouse at p. 300, citing to Couzens and Bigelow
at p. 61; see also People v. Buycks (2016) 241 Cal.App.4th 519 [rev. gtd, dkt # S231765] [citing
to Couzens & Bigelow, Proposition 47 “The Safe Neighborhoods and Schools Act” (Aug. 2015) at p.
57 for the proposition that where a “Proposition 47 count is part of a multiple-count sentencing
scheme, changing the sentence of one count fairly puts into play the sentence imposed on non–
Proposition 47 counts, at least to the extent necessary to preserve the original
concurrent/consecutive sentencing structure”]; People v. Villa [unpublished and unciteable] 2015
WL 6459930 [where pled guilty in three cases and was sentenced to an aggregate term of three years
four months in prison but petitioned, pursuant to Proposition 47, to be resentenced on two of the
cases, trial court properly granted the requested relief while simultaneously increasing his sentence
in the third case so that the overall duration of his confinement would remain the same].)
Similarly, if an enhancement was stayed or stricken as part of the original sentence, the trial court
should be able to re-impose the enhancement upon resentencing. This is what occurred in People
v. Garner (2016) 244 Cal.App.4th 1113 [rev. filed]. Garner was a case involving resentencing
pursuant to Proposition 36, allowing for recall and resentencing of defendants serving Three Strike
sentences based on committing nonviolent/nonserious felonies. The Garner court held the
resentencing court was allowed to re-impose a stricken one-year prior prison term sentence
enhancements upon granting recall of defendant’s original sentence. The Garner court reasoned
that a Proposition 36 recall of a sentence is similar to the “recall” of a sentence pursuant to Penal
Code section 1170(d); and under section 1170(d), the entire sentence may be reconsidered.” (Id. at
pp. 1118.) “This rule is justified because an aggregate prison term is not a series of separate
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independent terms, but one term made up of interdependent components. The invalidity of one
component infects the entire scheme.” (Ibid.) The Garner court supported its conclusion by
presuming that “the voters were aware of the meaning of the term ‘recall’ as used in criminal
sentencing, and of judicial decisions applying that term.” (Ibid.)*
*Editor’s note: As noted above, the case of Garner involved a resentencing pursuant to the Three Strikes
Reform Act enacted by Proposition 36. However, Penal Code section 1170.18 also uses the terms “recall”
and “resentencing” (see Pen. Code, § 1170.18(a) [A person . . . may petition for a recall of sentence before
the trial court that entered the judgment of conviction in his or her case to request resentencing . . .”]), and
cases interpreting Proposition 36 are often used to interpret comparable language in Proposition 47 (see
this IPG memo, section III-3 at pp. 116-117). Thus, it stands to reason those cases interpreting Proposition
36 to allow a court to reconsider the entire sentence upon resentencing a defendant who successfully has
petitioned to have his felony conviction reduced to a misdemeanor when the original sentence involved
multiple counts and/or enhancements may be relied upon in support of the notion that resentencing
pursuant to Proposition 47 also allows a court to reconsider a defendant’s entire sentence.
28. May a defendant who is resentenced pursuant to section 1170.18
receive a longer sentence than he initially received?
Subdivision (e) of section 1170.18 states: “Under no circumstances may resentencing under this
section result in the imposition of a term longer than the original sentence.”
29. If a plea-bargained felony charge becomes a misdemeanor as a
result of Proposition 47, are the People entitled to withdraw from
the plea agreement and reinstate the original charges?
In some cases, a defendant’s conviction for an offense that has been made eligible for reduction to a
misdemeanor under Proposition 47 was the result of a plea bargain. The defendant may have been
sentenced to substantial custody time in exchange for a reduction of the charges or in exchange for
the dismissal of charges that would not have been subject to resentencing under Proposition 47. For
example, a defendant charged with a robbery and a drug offense may have pleaded guilty to the drug
offense with the understanding the defendant would serve a substantial time in prison. Reducing
the drug offense conviction to a misdemeanor will significantly undermine the bargained-for
sentence. If the defendant successfully files a petition for reduction of his felony conviction to a
misdemeanor, are the People entitled to withdraw from the plea agreement and reinstate the original
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charges? The answer is currently up in the air as there is a split in the case law. (Compare Harris
v. Superior Court (2015) 242 Cal.App.4th 244 [rev. gtd, dkt #S231489] [yes] with People v.
Gonzalez (2016) 244 Cal.App.4th 1058 [rev. filed] [no]
Harris v. Superior Court (2015) 242 Cal.App.4th 244 [rev. gtd, dkt #S231489]
In Harris, the defendant was charged with robbery in violation of Penal Code section 211. The
defendant had six prior felony convictions, including a prior conviction for robbery (a serious felony
and thus a “strike” offense under the Three Strikes law). The People entered into a plea agreement
under which defendant pled guilty to one count of grand theft from the person in violation of Penal
Code section 487(c) and admitted having a prior strike offense. Pursuant to that agreement,
defendant was sentenced to six years in state prison (of which he had to serve 80% pursuant to Penal
Code section 1170.12(a)(5)). (Id. at pp. 247-248.)
A year later (after Proposition 47 passed), the defendant petitioned for a reduction of his felony
grand theft conviction to a misdemeanor pursuant to section 1170.18. “Taking into account his presentencing custody credits, he had served just over two years and two months in prison at that time.”
(Id. at p. 249.) “The People did not contest defendant's claim that he was entitled to relief under
Proposition 47. Instead, [they] filed a motion to withdraw from the plea agreement and reinstate the
previously-dismissed charges.” (Ibid.) “The trial court issued an order granting both defendant’s
petition for recall of sentence and the People's motion to withdraw from the plea and reinstate the
original charges. Defendant then filed a petition for writ of mandate. (Ibid.)
The Harris court ultimately held that “[u]nder the circumstances of this case . . . , reduction of the
plea-bargained felony charge to a misdemeanor under Proposition 47 deprives the People of the
benefit of the bargain of its plea agreement. Therefore, the People are entitled to withdraw from the
plea and reinstate the previously-dismissed charges, thus returning the parties to the status quo
ante. (Id. at p. 247.) The next few paragraphs explain how they came to that conclusion.
“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract
principles.” (Id. at p. 249.) “The fundamental goal of contractual interpretation is to give effect to
the mutual intention of the parties.” (Ibid.) “[O]nce the trial court accepts the agreement, then it,
like the parties, are bound by its terms.” (Id. at p. 250.)
The case of People v. Collins (1978) 21 Cal.3d 208 governs “what happens when a change in law
deprives either the People or the defendant of the benefit of the bargain of the plea agreement.” (Id.
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at p. 250.) In Collins, defendant pled to one count of non-forcible oral copulation in exchange for
dismissal of fourteen other charges. Before judgment was entered, the court ordered defendant
committed to a state institution as a mentally disordered sex offender. While defendant was
committed, the Legislature decriminalized non-forcible oral copulation. The Collins court held the
defendant could not be convicted and sentenced as contemplated by the plea agreement since the
pled-to offense was no longer a punishable crime. However, the Collins court also held, the People
were entitled to restore the dismissed counts “because the change in law had ‘destroy[ed] a
fundamental assumption underlying the plea bargain—that defendant would be vulnerable to a term
of imprisonment’—thus depriving the People of the benefit of its bargain.” (Harris at p. 250 citing
to Collins at pp. 211-216.)
As in Collins, the People in the Harris case were deprived of the benefit of their bargain. This is
because the parties had “agreed that defendant would serve a six-year prison term in exchange for
dismissal of the robbery charge and related allegations” whereas upon resentencing defendant would
be entitled to immediate release after having served a little over two years (i.e., since misdemeanors
are punishable by a maximum of six months in county jail, defendant would have already served the
maximum sentence for the reclassified crime). (Id. at pp. 250-251.)
As in Collins, the reduction of the felony conviction to a misdemeanor in Harris resulted in a
“windfall to defendant that neither party contemplated at the time they entered their plea
agreement.” (Harris at p. 251.) As the Collins, the “[d]efendant seeks to gain relief from the
sentence imposed but otherwise leave the plea bargain intact. This is bounty in excess of that to
which he is entitled.” (Ibid.) Thus, as in Collins, the People are entitled to the remedy, if they seek
it, to restoration of the dismissed charges and allegations. (Id. at pp. 251, 254-255)
The Harris majority rejected the argument (made by the dissenting justice) that the principle in
Collins only applies when the change in law entirely repeals the crime to which the defendant had
pled guilty because the “People are surely deprived of the benefit of its bargain whether the
bargain[ed]-for term of imprisonment is entirely eliminated (as in Collins) or drastically reduced
(as in this case). (Harris at p. 251, citing to In re Blessing (1982) 129 Cal.App.3d 1026, 1031
[prosecution permitted to withdraw from plea where change in law reduced the defendant's
negotiated sentence of 16 1/3 years to 12 1/3 years].)
The defendant in Harris (and the dissenting justice) argued that the decision in Collins is no
longer good law in light of the more recent California Supreme Court decision in Doe v. Harris
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(2013) 57 Cal.4th 64. In Doe, the defendant entered a plea agreement in which multiple count of
child molestation were dismissed in exchange for defendant pleading guilty to one count of child
molestation.
The plea form stated defendant would be placed on probation and included
registration as a sex offender – albeit the parties did not discuss section 290 during the plea
negotiations, other than to acknowledge that the defendant would have to register under its
provisions. At the time of the plea, section 290 provided that information gathered as part of sex
offender registration process was available only to law enforcement officers. However, thirteen
years later, the Legislature adopted “Megan's Law,” which revealed the information to the public as
well. The defendant sought to stop application of Megan’s law to him by way of a civil complaint in
federal court, alleging it violated the terms of his plea bargain. (Harris at pp. 252-253.) The issue
came before the Ninth Circuit, who, in order to decide the issue, certified the question to the
California Supreme Court, which rephrased the inquiry as follows: “Under California law of contract
interpretation as applicable to the interpretation of plea agreements, does the law in effect at the
time of a plea agreement bind the parties or can the terms of a plea agreement be affected by changes
in the law?” (Harris at p. 252, citing to Doe at p. 66.) The California Supreme Court stated: “the
general rule in California is that the plea agreement will be ‘deemed to incorporate and contemplate
not only the existing law but the reserve power of the state to amend the law or enact additional laws
for the public good and in pursuance of public policy....’” (Harris at p. 252, citing to Doe at p. 73.)
Thus, “requiring the parties’ compliance with changes in the law made retroactive to them does not
violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the
possibility the law might change translate into an implied promise the defendant will be unaffected
by a change in the statutory consequences attending his or her conviction.” (Harris at p. 252, citing
to Doe at pp. 73-74.)
The majority in Harris court rejected the argument that Doe impliedly overruled Collins because,
overruling by implication is disfavored, and the Doe court neither addressed nor repudiated
Collins “in a way that renders the two decisions irreconcilable.” (Harris at p. 251.) The majority
in Harris concluded that the holding in Doe that changes in the law do not retroactively affect
prior plea agreements was limited to circumstances where there has been a change to a “statutory
consequence” of conviction and not a “negotiated term of a plea agreement.” (Harris at p. 252.)
The Harris court pointed out that what the defendant in Doe was challenging was changes to the
registration requirement which could not have been a term of the plea agreement because it “is not a
permissible subject of plea agreement negotiation[.]” (Harris at pp. 252-253 [and also noting that
“[t]he notion that Doe referred to unbargained-for ‘statutory consequences’ of a conviction, rather
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than a negotiated term of the plea agreement, is reinforced by the cases examined and relied upon by
the Doe Court”].)
*Editor’s note: Another way of cabining Doe (suggested but not made explicit in Harris) is that in Doe
the change in the law was automatically imposed on one of the parties. The change in the law enacted by
Proposition 47 is not automatic – at least as to petitions or applications to reduce felony convictions. The
defendant must affirmatively request a change in sentence, i.e., there is an affirmative attempt to breach a
condition of the plea bargain. (See Harris v. Superior Court (2015) 242 Cal.App.4th 244, 256-257
[rev. gtd S231489] [“Proposition 47 does not void defendant's plea agreement, but only renders it voidable
at defendant’s option. He may elect to keep the benefit of his bargain and not petition for resentencing.
Once he decides to exercise his option to petition for a lesser conviction than what he agreed to, then he
effectively repudiates the plea agreement.”].)
In addition, the Harris majority rejected claims that its holding was inconsistent with the intent
behind Proposition 47, which it said was not only intended to “grant relief to nonserious and
nonviolent criminals” but to “withhold relief from serious or violent criminals.” (Id. at pp. 255,
256.) “Defendants who committed serious crimes but pled down to a less serious felony . . . may not
. . . claim the benefit of a law that was intended to assist nonserious and nonviolent criminals, when
their actual crimes were serious or violent or both.” (Id. at p. 256.)
*Editor’s note: Obviously, even assuming the reasoning of Harris is correct, this particular aspect of
the Harris majority opinion would have little force when it comes to Proposition 47 petitions requesting
reduction after a plea bargain that did not involve a serious or violent crime.
Finally, the Harris majority rejected the argument that its holding would “gut” Proposition 47
because the vast majority of all criminal cases are resolved through plea bargains. The Harris court
observed that the issue raised by defendant does not involve an interpretation of Proposition 47
because Proposition 47 never addressed whether the reclassification and resentencing deprives the
People of the benefit of its bargain. “That is a contract issue, and its resolution is not controlled by
the statutes enacted by Proposition 47, but rather by the laws governing contract interpretation”
which the “voters are presumed to have been aware of existing laws at the time the initiative was
enacted.” (Id. at p. 255.)
As to the question of whether a retrial or re-negotiated plea could exceed the original six year
sentence (assuming the defendant chose to exercise the option of obtaining a reduction of the
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conviction to a misdemeanor and the prosecution chose to start from scratch), the Harris majority
stated the sentence could exceed the six years. The court recognized that in People v. Collins
(1978) 21 Cal.3d 208, while the plea bargain was voided by a subsequent development in the law, the
defendant was permitted to keep the benefit of his bargain and his sentence was capped at his
maximum exposure under the plea agreement. (Harris at pp. 256-257.) However, the Harris
court distinguished the case before it from Collins on this point, because the plea agreement in
Collins was voided by external events, and not through the repudiation of the defendant; whereas,
in Harris, Proposition 47 did not void the defendant’s plea agreement, but only rendered it
voidable at defendant’s option. By exercising that option, the defendant himself would effectively
repudiate the plea agreement. Thus, the Harris court held if defendant decides not to keep the
benefit of his pre-Proposition 47 bargain and seeks resentencing on his conviction, the plea
agreement will be deemed to be rescinded, and the parties are returned to the status quo ante. (Id.
at pp. 256-257.)
*Editor’s note: The majority in Harris did not discuss Penal Code section 1170.18 (e) [“Under no
circumstances may resentencing under this section result in the imposition of a term longer than the
original sentence.”]. (See this IPG memo, section IV-27 at p. 158 and People v. Perry (2016) 244
Cal.App.4th 1251, 1260-1261 [rev. filed] [indicating that invalidating a plea agreement and reinstatement of
the previously dismissed charges following a reduction of a charge to a misdemeanor could run afoul of
intent behind section 1170.18(e), notwithstanding the People’s argument that because the reinstated
charges would not be covered by Proposition 47, the limits of subdivision (e) would not apply.
Dissenting Opinion in Harris
The dissenting opinion in Harris argued Proposition 47 only permits resentencing and placement
on parole for the reduced count; it does not authorize the trial court to reinstate dismissed counts
and courts do not have inherent authority to reinstate counts upon a recall of a sentence. (Harris,
dis. opn. at pp. 258-259.)
The dissent took a more expansive view of the holding in Doe v. Harris (2013) 57 Cal.4th 64. The
dissent believed Doe’s holding that a subsequent change in the law does not impact a prior plea
bargain (i.e., because a plea agreement is deemed to incorporate and contemplate not only the
existing law but the reserve power of the state to amend the law or enact additional laws for the
public good and in pursuance of public policy) applied regardless of whether that change in law
involved a change in law impacting the “statutory consequences” of a plea-agreed conviction as in
Doe, or a change in the law impacting a negotiated term of a plea agreement as in the case before it.
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“Both involve the consequences of the plea agreement and the conviction resulting from it.”
(Harris, dis. opn. at pp. 259-260.)
The dissent distinguished People v. Collins (1978) 21 Cal.3d 208 from the case before it on the
ground that in Collins the plea bargain was thwarted because the change in law fully repealed the
statute defining the crime for which defendant was convicted. The dissent believed it was only in
that situation (i.e., where “a defendant gains total relief from his vulnerability to sentence”) that “the
state is substantially deprived of the benefits for which it agreed to enter the bargain.” (Harris, dis.
opn. at p. 262.) In contrast, the dissent observed Proposition 47 did not fully eviscerate the
conviction, it simply reduced punishment. (Ibid.) Moreover, the dissent thought that even if
Collins could not be distinguished it was impliedly overruled by Doe v. Harris (2013) 57 Cal.4th
64. (Harris, dis. opn. at p. 262.)
People v. Gonzalez (2016) 244 Cal.App.4th 1058 [rev. filed]
In Gonzalez, a defendant who was charged with robbery (Pen. Code, § 211) and burglary (Pen.
Code, § 459) pled guilty, pursuant to a plea bargain, to a felony charge of grand theft in violation of
Penal Code section 487(c) and a misdemeanor battery in violation of Penal Code section 242. The
robbery and burglary charges were dismissed.
After Proposition 47 passed, the defendant
successfully petitioned for reduction of her felony grand theft conviction to a misdemeanor. The
People appealed, arguing that defendant was not entitled to the reduction because (i) Proposition 47
does not apply to defendant who were convicted of felonies pursuant to plea negotiations where
other felony convictions were dismissed; (ii) defendant did not meet her burden of showing she
would have only been convicted of a misdemeanor if Proposition 47 was in effect at the time of her
plea since the prosecution would not have accepted a plea to a simple misdemeanor; and (iii)
defendant breached her plea bargain by petitioning for resentencing and thus the People should be
allowed to withdraw from the plea agreement and restore the dismissed counts. (Id. at p. 1062.)
The Gonzalez appellate court disagreed with the People and upheld the trial court’s reduction. (Id.
at pp. 1064-1073.)
First, the Gonzalez court held Proposition 47 unambiguously allowed defendant to petition for
resentencing regardless of the fact that other counts were dismissed as part of the plea. (Id. at p.
1066.)
166
Second, the Gonzalez court rejected the People’s argument that the resentencing court must
consider the underlying facts of the defendant’s offenses (i.e., “that she would not have been guilty of
committing felony robbery or felony burglary as originally charged”) and not simply the statute of
conviction to determine whether petitioner would have been guilty of a misdemeanor under the act
that added this section. The court observed that it was conceded the property taken was under $950
and that defendant did not present an unreasonable risk of danger; and that, outside of that criteria,
Proposition 47 says nothing at all about reopening dismissed felony charges or requiring a petitioner
to prove she would have avoided conviction of such charges to qualify for resentencing. (Id. at pp.
1069-1070; see also this IPG memo, section IV-19, at p. 150.)
Third, the Gonzalez court held that defendant did not breach her plea bargain by requesting
resentencing. Relying on Doe v. Harris (2013) 57 Cal.4th 64, the court held plea bargains in
California are “deemed to incorporate and contemplate not only the existing law but the reserve
power of the state to amend the law or enact additional laws for the public good and in pursuance of
public policy” and as a result, and subject to certain constitutional limitations, “the Legislature or the
electorate may amend existing laws or enact new laws in a way that retroactively modifies or
invalidates the terms of a plea agreement” without allowing the parties to withdraw from the plea
agreement. (Gonzalez at pp. 1066-1067.) In other words, both the prosecution and defendant are
deemed to understand that such changes are part of the plea bargain. The Gonzalez court held
Proposition 47 changed the law for reasons of public policy and declined to draw a distinction
between the type of changes enacted by Proposition 47 and the type of change in the law at issue in
Doe. (Id. at p. 1067 [and noting as well, at p. 1072, that knowledge of the holding in Doe is
imputed to the drafters of Proposition 47 and the electorate].)
Fourth, the Gonzalez court held nothing in Proposition 47 allows a resentencing court to “vacate a
conviction or allow the prosecution to withdraw a plea agreement and reinstate dismissed counts.”
(Id. at p. 1070 [and also noting at p. 1072, fn. 3 that “it would be impractical, if not unconstitutional,
to allow prosecutors to withdraw from plea agreements, reinstate previously dismissed claims, and
proceed to trial years after convictions became final”].)
The Gonzalez court did not believe the holding in People v. Collins (1978) 21 Cal.3d 208 (see
this IPG memo, section IV-29 at pp. 161-162) was limited to circumstances where the defendant was
appealing or otherwise attacking a conviction on the guilty plea and the change in law “invalidates a
conviction and thereby eliminates any punishment obtained in a plea agreement” – circumstances
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that do not apply when a defendant is seeking resentencing under Proposition 47. (Id. at p. 1073.)
The Gonzalez court did not find the holding in Collins necessarily inconsistent with the holding in
Doe v. Harris (2013) 57 Cal.4th 64 (see this IPG memo, section IV-29 at pp. 162-163) but stated
that if Collins is interpreted to allow the People to withdraw from a plea agreement when the
change in law simply changes the punishment called for by a plea agreement, then Doe overruled it.
(Gonzalez at p. 1073 [and also, at pp. 1073-1074, distinguishing the holding in In re Blessing
(1982) 129 Cal.App.3d 1026, which allowed withdrawal of a plea bargain after a post-conviction
collateral attack based on a change in the law, because the change in the law was based on a
subsequent court ruling not a legislative determination of public policy].)
People v. Brown (2016) 244 Cal.App.4th 1170 [rev. filed]
In Brown, the defendant pleaded guilty to one count of receiving stolen property in violation of
Penal Code section 496(a) in exchange for the People dismissing two additional felony counts of
receiving stolen property and three felony counts of identity theft in violation of section 530.5(a).
The plea agreement anticipated defendant would serve two years in county jail. After Proposition 47
passed, the defendant successfully sought resentencing and was given a 364 days sentence in county
jail. The People appealed making almost identical arguments for why the defendant should not be
entitled to the reduction as those made in People v. Gonzalez (2016) 244 Cal.App.4th 1058 [rev.
filed] (see this IPG memo, section IV-29 at p. 166-168). (Brown at pp. 1177-1180.)
The Brown court, like the Gonzalez court, concluded the rule in Doe v. Harris (2013) 57 Cal.4th
64 (i.e., that plea bargains are not impacted by later changes in the law) applied to the type of
changes in the law enacted by Proposition 47 “unless the parties explicitly or implicitly agree[d]
otherwise[.]” (Id. at p. 1179.) And that the mere fact defendant agreed to serve a specified sentence
in exchange for the dismissal of more serious charges is insufficient evidence that the defendant
expressly or implicitly agreed her term of incarceration would be insulated from later legislative
amendment. (Brown at p.1179; see also this IPG memo, section IV-29 at p. 167.)
Similarly, the Brown court, like the Gonzalez court, concluded “[n]othing in the text, legislative
history, or spirit of Proposition 47 suggests a defendant convicted by guilty plea must also
demonstrate she would have received the same plea offer had she committed her crime after passage
of Proposition 47[.]” (Brown at p. 1180; see also this IPG memo, section IV-29 at pp. 166-167.)
168
Finally, the Brown court, like the Gonzalez court, believed the holding in People v. Collins
(1978) 21 Cal.3d 208 allows for withdrawal of plea after a change in the law only when “a subsequent
legislative change has the effect of eliminating entirely the defendant's conviction and vulnerability
to incarceration, and, consequently, has the effect of entirely depriving the People of the benefit of
their bargain.” (Brown at p. 1183 [and distinguishing, at fn. 5, the holding in Blessing on same
ground as Gonzalez did]; see this IPG memo, section IV-29 at pp. 167-168)
People v. Perry (2016) 244 Cal.App.4th 1251 [rev. filed]
In Perry, the defendant entered into a plea agreement pursuant to which he pleaded no contest to a
charge of grand theft and admitted a prior robbery conviction, in exchange for a sentence of six years
in prison and the dismissal of a charged robbery count. After Proposition 47 passed, the defendant
successfully sought resentencing, which resulted in a reduction in the length of defendant’s sentence.
The People appealed, claiming the superior court erred by resentencing the defendant pursuant to
Proposition 47 and should have instead vacated the plea bargain and reinstated the original charges.
(Id. at pp. 1254-1256.) Like the Gonzalez court, the Perry court believed (i) the holding in
People v. Collins (1978) 21 Cal.3d 208 was limited to when the entire conviction was vacated by
the change in law(see this IPG memo, section IV-29 at pp. 167) and (ii) the general rule articulated
in Doe v. Harris (2013) 57 Cal.4th 64 (see this IPG memo section IV-29 at pp. 162-163) governs
whether plea bargains are not impacted by later changes in the law and Doe applies to a petition for
resentencing pursuant to section 1170.18. (Perry at pp. 1258-1259.) The Perry court added that
allowing the withdrawal of plea bargains as requested by the People would risk running afoul of
section 1170.18(e)’s bar against resentencing resulting in the imposition of a term longer than the
original sentence and agreement and would undermine the intent of Proposition 47 in obtaining the
financial and social benefits promised by the initiative. (Id. at p. 1260.)
T.W. v. Superior Court (2015) 236 Cal.App.4th 646
In T.W., a juvenile ward was the subject of a supplemental petition alleging the minor committed
felony violations of Penal Code section 211 (robbery) and Penal Code section 496 (receiving stolen
property) based on the minor stealing a victim’s purse and its contents, and later being found in
possession of a stolen ATM card and cell phone. It appeared that the minor admitted the violation
of receiving stolen property with the understanding that the robbery count would be dismissed. The
minor’s maximum term of confinement was set at three years and four months. (Id. at pp. 649,
651.)
After Proposition 47 passed, the minor filed a petition requesting a reduction to a
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misdemeanor violation of Penal Code section 496 (carrying a maximum term of 12 months) because
the possessed stolen property was valued at less than $950. Because the minor has already served
his maximum term of confinement, he asked to be released from custody immediately. (Id. at pp.
649-650.) The prosecution opposed the reduction, arguing, inter alia, that the “retroactive
resentencing provision” of Proposition 47 did not apply to negotiated dispositions. (Id. at pp. 650651.) The T.W. court agreed with the minor that he was entitled to have his petition for reduction
considered - notwithstanding the fact he obtained his sentence as a result of a plea bargain. The
court observed that “section 1170.18 clearly and unambiguously states, ‘A person currently serving a
sentence for a conviction, whether by trial or plea” of eligible felonies may petition for resentencing
to a misdemeanor” and that its interpretation of the initiative would further the objective of
Proposition 47 to reduce penalties for nonserious property crimes and stop wasting prison space
housing space on petty crimes. (Id. at p. 652.) The T.W. court also held its conclusion was
consistent with the general rule announced in Doe v. Harris (2013) 57 Cal.4th 64: “[T]he general
rule in California is that the plea agreement will be ‘“deemed to incorporate and contemplate not
only the existing law but the reserve power of the state to amend the law or enact additional laws for
the public good and in pursuance of public policy....” ’ [Citation.] That the parties enter into a plea
agreement thus does not have the effect of insulating them from changes in the law that the
Legislature has intended to apply to them.” (T.W. at p. 653.)
*Editor’s note: When the California Supreme Court gets ahold of the issue, they could potentially uphold
the continuing validity of Collins but limit it to circumstances in which the terms of the plea bargain
cannot be carried out when the defendant has not yet been sentenced or the case is still pending. (See
People v. Gonzalez (2016) 244 Cal.App.4th 1058, 1071-1072 [in permitting the People to withdraw from
the invalidated plea agreement in Collins, “the Supreme Court simply followed the rule that the People
may exit a plea agreement in an ongoing case where an appellate court ‘in effect permit[s] [the offender] to
withdraw his guilty pleas.’”].) In which case, the People would only be able to withdraw a plea offer that
pre-dated Proposition 47 if the defendant had not yet been sentenced at the time Proposition 47 passed or
there was an ongoing appeal.
A. What should prosecutors do until the issue of whether a successful
resentencing allows the People to vacate the original plea bargain is
decided?
At this juncture, prosecutors should, at a minimum, seek to assess whether the sentencing court
is inclined to agree with the decision in Harris v. Superior Court (2015) 242 Cal.App.4th 244
170
[rev. gtd S231489] or with the contrary appellate decisions of People v. Gonzalez (2016) 244
Cal.App.4th 1058 [rev. filed], People v. Perry (2016) 244 Cal.App.4th 1251 [rev. filed], and
People v. Brown (2016) 244 Cal.App.4th 1170 [rev. filed] before the sentencing court takes
action on the defendant’s petition for resentencing.
If the sentencing court is inclined to follow Harris, then the defendant may moot the issue by
withdrawing his or her petition. If the defendant still wants to go forward, then consideration
should be given to the ramifications of the plea bargain being vacated. For example, would it be
worthwhile to put in efforts to try the case when the California Supreme Court may find the plea
bargain should never have been vacated – in which case those efforts would be for naught.
On the other hand, if the sentencing court indicates is inclined to follow Gonzalez, Perry, and
Brown, then prosecutors should simply seek to preserve the argument that the People are
entitled to the benefits of their plea bargain. The People can choose to file an appeal if
circumstances make it practical to do so.
*Editor’s note: An excellent brief, written by Kate Jewett of the Contra Costa County District Attorney’s
Office under the guidance of DDA Ryan Wagner, arguing that when a conviction for a crime reduced to a
misdemeanor pursuant to Proposition 47 is reached pursuant to a plea bargain, the plea bargain must be
vacated and the parties must be restored to their original bargaining position is available upon request.
B. Should prosecutors be entering pleas with express terms limiting the
ability of defendants to take advantage of future changes in the law?
As pointed out People v. Brown (2016) 244 Cal.App.4th 1170 [rev. filed], “it is not impossible
the parties to a particular plea bargain might affirmatively agree or implicitly understand the
consequences of a plea will remain fixed despite amendments to the relevant law. ” (Id. at p. 1178
citing to Doe v. Harris (2013) 57 Cal.4th 64, 71) “Whether such an understanding exists presents
factual issues that generally require an analysis of the representations made and other circumstances
specific to the individual case.” (Ibid.)
Thus, prosecutors might want to consider including in plea negotiations a clause that expressly
establishes that the terms of the plea bargain will remain in place regardless of any future changes in
the law. For example, there is marijuana initiative that will likely be on the ballot this coming fall
that might potentially decriminalize many marijuana laws. Prosecutors should be wary when
171
negotiating plea bargains where defendants are charged with multiple offenses, one or more of
which involve unlawful possession of marijuana, not to resolve the case for a plea to a marijuana
offense that could potentially be impacted by the initiative. Alternatively, if defendant is pleading to
one of the potentially impacted marijuana charges, prosecutors might want to consider making it an
express condition of the plea bargain that the sentence imposed cannot be impacted by future
changes in the law.
30. Can a prosecutor object to the post-sentence reduction of a
felony to a misdemeanor pursuant on grounds that it violates
the contracts clause of the federal or state constitution by
depriving the prosecution of the benefits of the plea bargain?
A closely related question to whether a defendant’s petition for resentencing permits the People to
withdraw from the plea bargain (see this IPG memo, section IV-29 at pp. 160-171) is the question of
whether prosecutors can seek to prevent the defendant from obtaining resentencing or redesignation on the ground Proposition 47 violates the contracts clause of the California and Federal
constitutions.
Argument in Favor of Finding Prop 47 Unconstitutional:
“Under the California Constitution, a ‘law impairing the obligation of contracts may not be passed.’
(Cal. Const., art. I, § 9.) Similarly, under the federal Constitution, ‘No state shall ... pass any ... law
impairing the obligation of contracts....’ (U.S. Const., art I, § 10, cl. 1.)” (San Bernardino Public
Employees Assn. v. City of Fontana (1998) 67 Cal.App.4th 1215, 1222.)
Because a ‘negotiated plea agreement is a form of contract,’ it is interpreted according to general
contract principles.” (People v. Segura (2008) 44 Cal.4th 921, 930.) When the government and
the defendant have reached an agreement to a specified sentence that is subsequently altered by a
new law (whether passed by the legislature or by initiative), there had been an impairment of a
contract. To the extent Proposition 47 authorizes a reduction in sentence for defendants who agreed
to plead to a felony and/or receive a specific punishment pursuant to the plea bargain, it impairs the
contract reached between the government and the defendant. Ergo, it violates both the contract
clauses of the state and federal constitution. Section 1170.18 is therefore unconstitutional insofar as
it might be applied to violate a plea bargain agreed to by the government and the defendant.
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Argument Against Finding Proposition 47 Unconstitutional:
Assuming a plea bargain is a contract, and notwithstanding the facially absolute language of the state
and federal contracts clause, the legislature may pass laws that impact pre-existing contracts if there
is a “significant and legitimate public purpose” behind the legislation and the legislation is of a
“character appropriate” to the identified public purpose. (See generally Energy Reserves v.
Kansas Power & Light (1983) 459 U.S. 400, 410-412; see also Home Bldg. & Loan Ass'n v.
Blaisdell (1935) 290 U.S. 398 [“The states retain adequate power to protect the public health
against the maintenance of nuisances despite insistence upon existing contracts” and “[l]egislation
to protect the public safety comes within the same category of reserved power”].)
In People v. Gipson (2004) 117 Cal.App.4th 1065, the defendant made a contracts clause
challenge to the doubling of his base sentence from three years to six years under the Three Strikes
law on the ground his original plea bargain did not contemplate his conviction could be used to
enhance his sentence for a subsequent crime. (Id. at p. 1068.) The Gipson court recognized that
“[t]he application of contract law to plea agreements is premised on ‘the notion that the negotiated
guilty plea represents a bargained-for quid pro quo.’ ” (Ibid.) However, the Gipson court went on
to say that prohibition on passing laws which impair the obligations in contracts “must be
accommodated to the inherent police power of the State ‘to safeguard the vital interests of its
people.’” (Id. at p. 1069.) “[C]ontracts are ‘deemed to incorporate and contemplate not only the
existing law but the reserve power of the state to amend the law or enact additional laws for the
public good and in pursuance of public policy, ...” (Id. at p 1070.) “Thus, impairment of an existing
contract is not necessarily unconstitutional.” (Id. at p. 1069.) The Gipson court ultimately
concluded no violation of the contracts clauses had occurred because the Three Strikes law promoted
a compelling interest in the protection of public safety and in punishing recidivism and thus was
enacted for “the public good and in pursuance of public policy.” (Id. at p. 1070.) Moreover, the
court held that the plea bargain had “vested no rights other than those which relate[d] to the
immediate disposition of the case” and the Three Strikes law “did not create or destroy any
substantive rights defendant had in the plea bargain.” (Ibid.) It was only defendant’s own conduct
after the Legislature amended the law that allowed defendant to “became subject to the penalty
described in the amended statute. The increased penalty in the current case had nothing to do with
the previous case except that the existence of the previous case brought defendant within the
description of persons eligible for a five-year enhancement for his prior conviction on charges
brought and tried separately.” (Ibid.)
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*Editor’s note: It seems likely the prosecution could distinguish Gipson on one of the grounds the
court relied upon: unlike the Three Strikes law which, at most, indirectly impacted the plea bargain; the
reduction in sentence imposed by Proposition 47 directly impacts the bargained-for contact.
Nevertheless, it will be difficult to distinguish Gipson on the other ground the court relied on in finding
no violation of the contracts clause: that all contracts are subject to the power of the state to amend the
law or enact additional laws for the public good and in pursuance of public policy.
And in Way v. Superior Court (1977) 74 Cal.App.3d 165, the court held that changes enacted by
the Uniform Determinate Sentencing Act of 1976, which had the possible effect of reducing certain
sentences which had been based upon plea bargains, did not violate section of State Constitution
providing that no law impairing obligation of contracts may be passed.
(Id. at p. 180.) The
rationale given by the Way court was that prison sentences for crimes do not involve contractual
considerations and plea bargains vest no rights other than those which relate to the immediate
disposition of the case. (Ibid.)*
*Editor’s note: The rationale provided by the Way in this regard is suspect in light of subsequent case
law clarifying that plea bargains are to be treated as akin to contracts. (See People v. Segura (2008) 44
Cal.4th 921, 930.)
There are significant and public purposes behind Proposition 47, which include increasing
“investments in programs that reduce crime and improve public safety, such as prevention
programs in K–12 schools, victim services, and mental health and drug treatment, which will reduce
future expenditures for corrections.” (See section 3 of Proposition 47.) Since Proposition 47 was
drafted to appropriately address those purposes, the impact on contracts (i.e., plea-negotiated
sentences) is permissible.
31. Do the resentencing provisions of Proposition 47 violate the
right of victims under the California Constitution to finality in
criminal cases?
Paragraph (6) of subdivision (a) of Section 28 of Article I of the California Constitution (as enacted
by Marsy's Law) provides: “Victims of crime are entitled to finality in their criminal cases. Lengthy
appeals and other post-judgment proceedings that challenge criminal convictions, frequent and
difficult parole hearings that threaten to release criminal offenders, and the ongoing threat that the
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sentences of criminal wrongdoers will be reduced, prolong the suffering of crime victims for many
years after the crimes themselves have been perpetrated. This prolonged suffering of crime victims
and their families must come to an end.”
An argument can potentially be made that a reduction in sentence from a felony to a misdemeanor
under Proposition 47 violates the “finality” in criminal cases as that term is defined in section
28(a)(6). Whether that argument will be successful is another question. A counter argument can be
made that no specific right to “finality” has been created and it if were interpreted to restrict postsentence reductions under Proposition 47, it would equally restrict appeals or post-judgment
proceedings - something no court is likely to conclude. It is more likely this section was included to
provide the reasons for the victim’s more tangible rights to presence and participation in postsentence proceedings. (See paragraph (8) of subdivision (b) of Section 28 of Article I of the
California Constitution (as enacted by Marsy's Law) [discussing right of victim to “be heard, upon
request, at any proceeding, including any . . . sentencing, post-conviction release decision, or any
proceeding in which a right of the victim is at issue”].)
32. If a defendant is resentenced, is the defendant subject to any
further supervision?
Subdivision (d) of section 1170.18, in pertinent part, provides: “A person who is resentenced
pursuant to subdivision (b) shall be given credit for time served and shall be subject to parole for one
year following completion of his or her sentence, unless the court, in its discretion, as part of its
resentencing order, releases the person from parole. Such person is subject to Section 3000.08
parole supervision by the Department of Corrections and Rehabilitation and the jurisdiction of the
court in the county in which the parolee is released or resides, or in which an alleged violation of
supervision has occurred, for the purpose of hearing petitions to revoke parole and impose a term of
custody.”
Section 1170.18(d) thus requires a period of parole for any defendant who is resentenced pursuant to
section 1170.18(b) unless the court chooses to release the person from parole.
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A.
If a court decides not to place a defendant on parole, is there any other
type of supervision that must be imposed?
Arguably, if a defendant is being released from prison as a result of resentencing under section
1170.18, the defendant must be placed on post-release community supervision (PRCS). Penal Code
section 3451(a), enacted as part of Realignment, states, “Notwithstanding any other law ..., all
persons released from prison on and after October 1, 2011, or whose sentence has been deemed
served pursuant to section 2900.5 after serving a prison term for a felony shall, upon release from
prison and for a period not exceeding three years ..., be subject to [PRCS]....” (Italics added.)
However, even if there is some inconsistency between section 1170.18(d) and section 3451(a), the
mandate of section 3451(a) should take precedence. It is true that generally, when two statutes are
irremediably inconsistent, the latter statute may be viewed as taking precedence over the former
(see People v. Franklin (1997) 57 Cal.App.4th 68, 74), but section 1170.18 does not use the
terminology, “notwithstanding any other law” while section 3451(a) does. As pointed out in
Souvannarath v. Hadden (2002) 95 Cal.App.4th 1115, the phrase “notwithstanding any other
provision of law” “has a special legal connotation; it is considered an express legislative intent that
the specific statute in which it is contained controls in the circumstances covered by that statute,
despite the existence of some other law which might otherwise apply to require a
different or contrary outcome.” (Id. at pp. 1125-1126, emphasis added; accord Molenda v.
Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 995; People v. Tillman (1999) 73
Cal.App.4th 771, 785; People v. Franklin (1997) 57 Cal.App.4th 68, 74; People v. DeLaCruz
(1993) 20 Cal.App.4th 955, 963.)
Since this terminology is absent from section 1170.18, there is no irremediable conflict between
section 3451(a) and section 1170.18. The absence of the term ““notwithstanding any other law” in
section 1170.18 may be fatal to any argument that a defendant who is released from prison as a result
of resentencing under section 3451 may avoid placement on PRCS.
*Editor’s note: Note that the potential conflict would not arise if the defendant being resentenced was
never sentenced to prison for the crime subject to resentencing. However, it might apply to resentenced
defendants currently on parole if they were placed on parole after October 1, 2011.
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B.
May a defendant be placed on probation after being resentenced?
Section 1170.18 provides that a defendant who qualifies for resentencing shall be “resentenced to a
misdemeanor pursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section
459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code[.]” (Pen. Code, § 1170.18(b).) Although
section 1170.18 requires a period of one-year parole (unless the resentencing court decides not to
impose it), there does not seem to be any bar to a judge placing a defendant on misdemeanor
probation for any of the listed offenses after resentencing. However, no published decision has
addressed whether this type of sentence would be proper and/or whether the one-year period of
parole authorized by subdivision (d) of section 1170.18 would follow the completion of probation.
33. If a defendant is resentenced under section 1170.18 and is placed
on one-year parole, is the defendant entitled to any credit
toward that time period (or outstanding fines) if resentencing
leaves the defendant with additional custody credits?
Under section 1170.18(d), a defendant currently serving a sentence who is resentenced to
misdemeanor is entitled to receive “credit for time served” but also “shall be subject to parole for
one year following completion of his or her sentence, unless the court, in its discretion, as part of its
resentencing order, releases the person from parole.”
Generally, where the presentence credits exceed the total state prison term, the excess credits,
commonly known as Sosa credits are deducted from the defendant’s parole period. (People v.
Espinoza (2014) 226 Cal.App.4th 635, 638; In re Sosa (1980) 102 Cal.App.3d 1002, 1006.) Thus,
assuming that a defendant in prison who is resentenced is not subject to PRCS and is entitled to use
excess credits toward a period of parole, an argument can be made that those credits may be used to
reduce the one-year period of parole imposed under section 1170.18(d). Arguably, however, section
1170.18(d) requires a period of one-year parole (unless a court decides otherwise) regardless of how
much excess credit the defendant has received after resentencing.
The issue of whether “excess custody credits [can] be used to reduce or eliminate the one-year parole
period required by Penal Code section 1170.18, subdivision (d), upon resentencing under Proposition
47” is currently pending before the California Supreme Court in People v. Morales (2015) 238
177
Cal.App.4th 42 [rev. gtd, dkt #S228030]; see also People v. Armogeda (2015) 240 Cal.App.4th
1039 [rev. gtd, docket # S230374]; People v. McCoy (2015) 239 Cal.App.4th 431 [rev. gtd, dkt #
S229296] [taken up for review but further action deferred “pending consideration and disposition of
a related issue in” People v. Morales (2015) 238 Cal.App.4th 42 [rev. gtd, dkt #S228030]];
People v. Pinon (2015) 238 Cal.App.4th 1232 [rev. gtd, dkt # S229632] [same]; People v.
Hickman (2015) 237 Cal.App.4th 984 [rev. gtd, dkt # S227964] [taken up on the same issue as
Morales but further action deferred pending decision in Morales]; People v. Neuman
(unpublished and unciteable) 2015 WL 5574949, at p. *1 [rev. gtd, dkt # S230308 [same].)
The Court of Appeal in People v. Morales (2015) 238 Cal.App.4th 42 [rev. gtd, dkt #S228030]
had ruled the defendant was entitled to have any excess custody days arising from his resentencing
credited against his one year period of parole as well as against any fines. (Morales at pp. 49-52;
see also People v. Armogeda (2015) 240 Cal.App.4th 1039, 1047 [rev. gtd, dkt # S230374]
[same]; People v. Pinon (2015) 238 Cal.App.4th 1232, 1235 [rev. gtd, dkt # S229632] [reiterating
this holding (as to the period of parole)]; People v. Morris (2015) 242 Cal.App.4th 94, 101-103 [ex
post facto principles required the application of any excess custody credits arising from resentencing
under section 1170.18 to defendant’s restitution fine – where the version of section 2900.5(a) in
effect at the time of his original offense permitted it – since “the imposition of restitution fines
constitutes punishment, and therefore is subject to the proscriptions of the ex post facto clause].)
*Editor’s note: The court in People v. Pinon (2015) 238 Cal.App.4th 1232 [rev. gtd, dkt # S229632],
also adopted a formula for how to apply excess custody credits when the defendant is resentenced and is
placed on a period of “misdemeanor” parole. Under the formula (proposed by the People and adopted by
the court), any excess custody credits should first be applied to the one-year parole period, and then, if the
parole period is still longer than the remaining PRCS period, the parole period is reduced to coincide with
the end of defendant's PRCS. (Id. at p. 1238.) The Pinon court rejected the defendant’s proposed formula
which would require initially reducing the parole period to coincide with the end of PRCS, and then further
reducing the parole period by defendant’s excess custody credits. (Ibid.) To illustrate the difference in
approaches, the Pinon court posed a hypothetical involving a defendant with three months remaining on
his PRCS and four months of excess custody credits. Using the formula adopted the one-year parole period
would be reduced “to eight months, and since that is longer than the three months remaining on PRCS,”
the “misdemeanor” parole period would be reduced to three months. In contrast, under the defendant's
proposed formula, the misdemeanor parole period would first be reduced to three months, and then
eliminated altogether when the four months of custody credit was applied. (Id. at p. 1238.) However, as
noted above, Pinon was taken up for review by the California Supreme Court. (See People v. Pinon
(2015) 238 Cal.App.4th 1232 [rev. gtd, dkt # S229632] .)
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On the other hand, the appellate court in People v. Hickman (2015) 237 Cal.App.4th 984 [rev.
gtd, dkt # S227964] came to a contrary conclusion, finding that where a defendant has excess
presentence custody credits after being resentenced pursuant to Penal Code section 1170.18(a), such
credits could not be applied against the one-year parole term. Moreover, the Hickman court ruled
that it did not violate equal protection to preclude application of excess credit against defendants
who are placed on one year parole pursuant to Proposition 47 but to allow excess credits to be
applied against a period of parole imposed on violent felons who are released on standard parole
because the two groups are not similarly situated (as they are required to be in order to successfully
mount an equal protection challenge). (Id. at pp. 988-989; see also People v. McCoy (2015)
239 Cal.App.4th 431 [rev. gtd, dkt # S229296] [agreeing with, but expanding upon, Hickman and
noting that excess credit should not be used to reduce restitution fines in light of recent statutory
changes which preclude restitution fines and orders from being satisfied by the time a defendant is
in custody – albeit agreeing such excess credit may be used toward satisfying drug program fee];
People v. Jasso (unpublished and unciteable) 2016 WL 826344, at *2 [rev. filed] [statute requires
imposition of one year period of misdemeanor parole regardless of excess credits].)
Significantly, two appellate decisions have held that a defendant who is resentenced pursuant to
Proposition 36 (“The Three Strikes Reform Act of 2012”) which permits the recall and resentencing
of certain defendants who were sentenced under the Three Strikes law for nonviolent and nonserious
felonies, must be placed on PRCS - even if the defendant has credits that exceed the amount of time
the defendant could be placed on parole. (See People v. Espinoza (2014) 226 Cal.App.4th 635,
638-640 [declining to apply excess credit for time served to reduce period of post release community
supervision (PRCS) for Three Strikes defendant who was resentenced pursuant to Proposition 36
since PRCS is not a term of imprisonment within the meaning of section 2900.5(c) and rejecting
equal protection argument because defendant released on PRCS is not similarly situated to person
released on parole]; People v. Tubbs (2014) 230 Cal.App.4th 578, 585-586 [same].)
Review was denied in both Espinoza and Tubbs. Interestingly though, the California Supreme
Court took up a case holding a Three Strikes defendant who was resentenced pursuant to
Proposition 36 was entitled, under equal protection, to have his excess credits used to reduce his
postrelease community supervision term since defendants on parole were so entitled. (People v.
Superior Court of Riverside County (Rangel) (2016) 243 Cal.App.4th 992, 1001 [rev. gtd, dkt
# S232439].) Apparently the California Supreme Court recognizes that the issue is similar to the
issue raised in Proposition 47 context because the decision in Rangel was “deferred pending
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consideration and disposition of a related issue” in People v. Morales (2015) 238 Cal.App.4th 42
[rev. gtd, dkt #S228030 – which is a case involving whether excess credits may be applied to the
one-year period of parole authorized by Proposition 47.
A.
Can a defendant who is resentenced be placed on a one-year
“misdemeanor” period of parole pursuant to section 1170.18(d) if the
parole period would exceed the amount of time remaining on
defendant’s felony parole or PRCS?
A somewhat different but related issue to whether excess credits may be credited toward the oneyear period of parole of section 1170.18(d) is “whether imposition of a parole period longer than the
remainder of [a resentenced] defendant’s PRCS period violates Penal Code section 1170.18,
subdivision (e) (subdivision (e)), which states, ‘Under no circumstances may resentencing under this
section result in the imposition of a term longer than the original sentence.’” (People v. Pinon
(2015) 238 Cal.App.4th 1232, 1236 [rev. gtd, dkt # S229632].)
In Pinon, a defendant sought resentencing on a felony methamphetamine conviction. At the time
defendant filed his application, he had served his prison sentence and was on PRCS. The trial court
recalled the sentence, and reduced the conviction to a misdemeanor and then imposed a new term
with a one-year parole period pursuant to section 1170.18(d). However, defendant’s PRCS was
scheduled to end before the one-year period of parole would end. (Id. at p. 1235.) The Pinon
appellate court held that subdivision (e) of Penal Code section 1170.18, subdivision (e) prevented a
court from imposing a period of “misdemeanor” parole pursuant to subdivision (d) of section
1170.18 that exceeded the scheduled end date of a defendant's PRCS. (Id. at pp. 1236, 1238) The
appellate court stated that “[p]ermitting a court to impose one full year of parole supervision even
beyond that to which the defendant was subject under a felony sentence would render the
punishment more severe with no apparent justification at all. [Citation.] And requiring additional
parole beyond that which was required of a felony offense would, of course, cost the taxpayers
additional money. Neither of these results comport with the objectives of Proposition 47.” (Id. at p.
pp. 1237–1238.) Accordingly, the appellate court held that where defendant’s PRCS was scheduled
to end in April 2015, his misdemeanor parole on resentencing could not extend past that date. (Id.
at p. 1236.) However, the case of Pinon was also taken up by the California Supreme Court (see
People v. Pinon, dkt # S229632) and deferred “pending consideration and disposition of a related
issue in” People v. Morales (2015) 238 Cal.App.4th 42 [rev. gtd, dkt #S228030].
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34. What entity supervises misdemeanor “parole” for resentenced
defendants?
Subdivision (d) of section 1170.18, in pertinent part, provides that a person who is resentenced “is
subject to Section 3000.08 parole supervision by the Department of Corrections and Rehabilitation
and the jurisdiction of the court in the county in which the parolee is released or resides, or in which
an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke parole
and impose a term of custody.”
Whether these defendants will be supervised by parole or be subject to supervision pursuant to
PRCS is an open question. (See this IPG memo, section IV-32-A at p. 176)
V.
WHAT ARE THE RULES GOVERNING RESENTENCING
OF DEFENDANTS WHO HAVE COMPLETED SERVING
A SENTENCE FOR A FELONY CONVICTION THAT
WOULD BE A MISDEMEANOR UNDER PROPOSITION
47?
1.
Which defendants who completed serving their sentences may
apply for re-designation of a felony conviction as a
misdemeanor under section 1170.18?
Subdivision (f) of section 1170.18 provides: “A person who has completed his or her 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 file an
application before the trial court that entered the judgment of conviction in his or her case to have
the felony conviction or convictions designated as misdemeanors.”
A.
Will defendants who have convictions for crimes requiring sex offender
registration or super strikes be able to have their felony conviction redesignated as a misdemeanor?
Subdivision (i) of section 1170.18 specifically states: “The provisions of this section shall not apply to
persons who have one or more prior convictions for an offense specified in clause (iv) of
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subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring
registration pursuant to subdivision (c) of Section 290.” (Emphasis added.) Subdivision (i) applies
equally to defendants petitioning for resentencing pursuant to section 1170.18(a) and those applying
for re-designation under section 1170.18(f). Please see the discussion in this IPG memo, section III5 at pp. 119-124.
*Editor’s note: For a list of the offenses specified in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 (aka “super strikes”) and offenses listed in Penal Code section 290(c), see
this IPG memo, section III-5-B at pp. 119-121.
B.
If a defendant is convicted of a disqualifying offense (i.e., a
superstrike or conviction requiring sex-offender registration) at the
same time or after the defendant was convicted of a Proposition 47
eligible offense, is the defendant still eligible for re-designation
pursuant to section 1170.18(f)?
As subdivision (i) applies equally to defendants petitioning for resentencing pursuant to section
1170.18(a) and those applying for re-designation under section 1170.18(f), please see the discussion
of this issue in this IPG memo, section III-5-C at pp. 121-124.
C.
Are defendants with juvenile adjudications entitled to a redesignation when the crime which is the subject of their
“adjudication” has been reduced from a felony to a misdemeanor
per Proposition 47?
As subdivision (i) applies equally to defendants petitioning for resentencing pursuant to section
1170.18(a) and those applying for re-designation under section 1170.18(f), please see the discussion
contained in this IPG memo, section III-5-D at pp. 124-125 on whether defendants with juvenile
adjudications are entitled to resentencing when the crime which is the subject of their
“adjudication” has been reduced from a felony to a misdemeanor per Proposition 47. That
discussion is equally applicable to defendants with juvenile adjudications seeking re-designation.
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D.
Is a defendant who is currently serving a sentence for misdemeanor
conviction of Penal Code section 484/666 based on having three
prior convictions entitled to a re-designation under Proposition 47?
As subdivision (i) applies equally to defendants petitioning for resentencing pursuant to section
1170.18(a) and those applying for re-designation under section 1170.18(f), please see the discussion
contained in this IPG memo, section III-5-E at p. 125 on whether a defendant who is currently
serving a sentence for misdemeanor conviction of Penal Code section 484/666 based on having three
prior convictions is entitled to a resentencing under Proposition 47.
2.
What starts the process of re-designation?
The defendant begins the process by filing an “application” before the trial court that entered the
judgment of conviction in his or her case to have the felony conviction or convictions designated as
misdemeanors. (Pen. Code, § 1170.18(f).)
It is not clear why the section 1170.18 uses the term “application” when it comes to defendants with
completed sentences as opposed to the term “petition” – which is used when it comes to defendants
who are currently serving sentences. Perhaps it is used to emphasize the distinction between the two
groups
3.
Where must the application be filed?
The application should be filed “before the trial court that entered the judgment of conviction in his
or her case[.]” (Pen. Code, § 1170.18(f).)
4.
When must the application be filed?
Subdivision (j) of section 1170.18 states: “Any petition or application under this section shall be filed
within three years after the effective date of the act that added this section or at a later date upon a
showing of good cause.” Thus, the application must be filed before November 5, 2017 absent good
cause for not doing so. Section 1170.18 does not define what constitutes “good cause.”
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5.
What happens if the trial court that originally entered the
sentence is no longer available?
Subdivision (l) of section 1170.18 states: “If the court that originally sentenced the petitioner is not
available, the presiding judge shall designate another judge to rule on the petition or application.”
A.
What does it mean for a trial court not to be “available?”
Please see this IPG memo, section IV-I-A at p. 126 for a discussion of what it means for a trial court
not to be “available” for purposes of resentencing. The discussion is equally applicable to the
meaning of “available for purposes of re-designation.
B.
Can the right to re-designation by the same trial court be waived?
Please see this IPG memo, section IV-1-B at p. 126 for a discussion of whether the right to
resentencing by the same trial court may be waived. The discussion is equally applicable to the
question of whether the right to re-designation by the same trial court may be waived
6.
Is the defendant entitled to a hearing on his or her application?
Subdivision (h) of section 1170.18 states: “Unless requested by the applicant, no hearing is necessary
to grant or deny an application filed under subsection (f).”
That being said, at least one court has indicated that a hearing can be required on whether the
defendant has prior convictions disqualifying him from obtaining a reduction of a felony conviction
that, on its face, qualifies for reduction. (See People v. Shabazz (2015) 237 Cal.App.4th 303, 314
[“The filing of an application alerts the prosecution to the question of whether there are any
disqualifying prior convictions. Thus, our analysis insures the eligibility determination is made in a
hearing where the prosecution is on notice of the existence of the disqualifying prior conviction
issue.” emphasis added by IPG]; but see People v. Diaz (2015) 238 Cal.App.4th 1323, 1333
[“Although Shabazz refers to a “hearing,” we note that on an application under section 1170.18,
subdivision (f) to have a felony designated a misdemeanor, a hearing is required only if requested by
the applicant. (§ 1170.18, subd. (h).)”].)
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7.
Is the prosecutor entitled to notice of the application or to be
heard on whether the application should be granted?
Section 1170.18 does not expressly provide for any notice or right to be heard on an application
for re-designation. Moreover, unlike section 1170.18(f), there is no statutory language that
implicitly provides for such notice or opportunity to be heard when it comes to re-designation
under section 1170.18(h). (Cf., this IPG memo, section IV-17 at pp. 147-148 [discussing People
v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279 which involved the right to notice
and opportunity to be heard in the context of a Prop 36 Three Strikes resentencing hearing].)
Nor is there any determination to be made on whether the defendant is dangerous before redesignation can be granted, which was another reason the Kaulick court held the prosecution
had a right to notice and an opportunity to be heard. (See this IPG memo, this IPG memo,
section IV-17 at pp. 148 [discussing People v. Superior Court (Kaulick) (2013) 215
Cal.App.4th 1279.)
Nevertheless, in People v. Shabazz (2015) 237 Cal.App.4th 303, the court strongly indicated
that the prosecutor would be entitled to notice of the application and to be heard before
defendant’s application is granted: “The filing of an application alerts the prosecution to the
question of whether there are any disqualifying prior convictions. Thus, our analysis insures
the eligibility determination is made in a hearing where the prosecution is on notice of the
existence of the disqualifying prior conviction issue.” (Id. at p. 314, emphasis added by IPG;
accord People v. Diaz (2015) 238 Cal.App.4th 1323, 1333.)
Certainly, an erroneous post-conviction reduction of a felony to a misdemeanor injures a
substantial right of the prosecution not only in the finality of judgment but potentially in the
enforcement of a plea bargain. (Cf., People v. Statum (2002) 28 Cal.4th 682, 687-688
[noting it earlier had permitted the People to appeal a sentencing court’s reduction of a wobbler
to a misdemeanor after a grant of probation because it was an “order made after judgment,
affecting the substantial rights of the people”].)
Moreover, if a defendant requests a hearing under subdivision (h) of section 1170.18, the reasons
for providing the prosecution notice and an opportunity to be heard become even more
compelling. (Cf., People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1298
[“Once, as here, the adversary nature of a proceeding is established, then it follows that notice of
all motions must be given whenever the order sought may affect the right of an adverse party”].)
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8.
Is the victim entitled to notice of the application or to be heard
on whether the application should be granted?
Section 1170.18 does not provide for any notice to the victim or a right to be heard on an
application for re-designation. Moreover, the re-designation application is not deemed a “postconviction release proceeding” under Marsy’s Law like the hearing for resentencing under
section 1170.18(f) is. Thus, a victim may have no right to be present or be heard on an
application for re-designation pursuant to section 1170.18(f).
Arguably, a re-designation application pursuant to section 1170.18(f) falls under section
28(b)(8) of Article 1 of the California Constitution – also enacted by Marsy’s Law. That section
provides: that victims have a right “[t]o be heard, upon request, at any proceeding, including any
delinquency proceeding, involving a post-arrest release decision, plea, sentencing, postconviction release decision, or any proceeding in which a right of the victim is at issue.
9.
Is the defendant entitled to assistance of counsel in filing the
application or at any subsequent hearing on the application?
No court has yet opined on whether a defendant would be entitled to assistance of counsel in filing
the application or at any subsequent hearing on the application. In People v. Rouse (2016) 245
Cal.App.4th 292, the court held a defendant currently serving a felony sentence presents a petition
pursuant to section 1170.18, subdivision (a) and is found eligible for resentencing, that defendant is
entitled to the assistance of counsel at resentencing in every case involving a judgment of conviction
of more than one felony such that the court has discretion to restructure the sentence on all counts.”
(Id. at p. 301.) However, the Rouse court cautioned it was not deciding whether the right to
counsel attaches “for an individual who has completed his or her felony sentence and files a petition
for reclassification under subdivision (f) of section 1170.18[.]” (Ibid.) And, in fact, the discussion in
Rouse strongly suggests there is no right to counsel in filing the application and/or at any hearing
on the application. (See Rouse at p. 298.) The Rouse court pointed out that the United States
Supreme Court “has declined to extend the Sixth Amendment right to counsel to postconviction
proceedings” and [f]ederal courts have consistently ruled that an incarcerated defendant has no
constitutional right to counsel with respect to statutory postconviction motions seeking a reduction
in sentence.” (Ibid.) Moreover, the Rouse court observed that in Dillon v. United States
(2010) 560 U.S. 817, the High Court “while not specifically addressing the right to counsel, held that
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the Sixth Amendment was not implicated by an incarcerated defendant’s motion for a sentence
modification . . . requesting a reduction in sentence based on intervening amendments to the federal
sentencing guidelines[.]” (Rouse at p. 298.)
10. Is a defendant who has been granted Penal Code section 1203.4
relief on his felony conviction (i.e., had his conviction
“expunged”), still entitled to obtain re-designation of his offense
to a misdemeanor?
Penal Code section 1203.4(a) provides that if a defendant successfully completed probation after a
being convicted by plea, the defendant may withdraw his plea and enter a plea of not guilty. The
court is then required to dismiss the accusations or information against the defendant and defendant
is, subject to certain exceptions, released from all penalties and disabilities resulting from the offense
of which he or she has been convicted. (Pen. Code, § 1203.4(a).)
In People v. Tidwell 2016 WL 1354717, the court held that a defendant who had previously
received section 1203.4 relief on a felony conviction was still entitled to have that “dismissed” felony
conviction re-designated as a misdemeanor by way of a section 1170.18(f) petition. (Id. at pp. *2*4.)
11.
When should a court grant the defendant’s application?
Subdivision (g) of section 1170.18 provides: “If the application satisfies the criteria in subdivision (f),
the court shall designate the felony offense or offenses as a misdemeanor.”
The criteria for resentencing as specified in subdivision (f) of section 1170.18 is that the defendant
“has completed his or her 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[.]” (Pen. Code, § 1170.18(f).)
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12. In deciding whether a defendant would have been guilty of a
misdemeanor had Proposition 47 been in effect at the time of
the conviction, does a court consider whether other charges
were dismissed or reduced at the time of the plea?
Because the language used in section 1170.18(a) regarding when a defendant is entitled to
resentencing largely parallels the language used in section 1170.18(f), please see this IPG memo,
section IV-19 at p. 150 [discussing whether a court may consider other charges that were dismissed
or reduced at the time of the plea in deciding if a defendant would have been guilty of a
misdemeanor had Proposition 47 been in effect at the time of the conviction].)
13. In deciding whether to grant a defendant’s application for relief
when the defendant has completed his sentence, does there have
to be any finding the granting of the application would not pose
an unreasonable risk of danger to the public?
Unlike when it comes to petitions for relief when a defendant is still serving a sentence (see Pen.
Code, § 1170.18(b)&(c)), subdivision (g) of section 1170.18 does not give a court the option of
denying an application for reduction of a felony conviction to a misdemeanor on the ground the
defendant would pose an unreasonable risk of danger to public safety when the defendant has
completed his sentence.
VI. POST-PROPOSITION 47 REDUCTION IMPACTS
1.
What does it mean to say that a felony reduced to a misdemeanor
pursuant to section 1170.18 is a “misdemeanor” for all purposes?
Subdivision (k) of section 1170.18 provides: “Any felony conviction that is recalled and resentenced
under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a
misdemeanor for all purposes, except that such resentencing shall not permit that person to
own, possess, or have in his or her custody or control any firearm or prevent his or her conviction
under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6. (Emphasis
added by IPG.)
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How the phrase “misdemeanor for all purposes” will be interpreted is subject to some debate. Many
courts have looked to how comparable language in Penal Code 17(b) [where a crime is a wobbler, “it
is a misdemeanor for all purposes . . . [w]hen . . . the court declares the offense to be a
misdemeanor”] has been interpreted. (See People v. Abdallah 2016 WL 1581899, *7; People v.
Williams (2016) 245 Cal.App.4th 458, 467 [rev. filed]; People v. Rivera (2015) 233 Cal.App.4th
1085, 1100.)
The next few sections of the IPG memo analyzes some of the more common issues arising in
applying subdivision (k).
2.
If a defendant obtains a reduction of a felony conviction to a
misdemeanor pursuant to Penal Code section 1170.18, may the
defendant later obtain or possess a firearm?
As noted above, Penal Code section 1170.18 (k) provides: Any felony conviction that is recalled and
resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be
considered a misdemeanor for all purposes, except that such resentencing shall not permit that
person to own, possess, or have in his or her custody or control any firearm or prevent his or her
conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.”
(Emphasis added by IPG;
It is indisputable that if a defendant petitions for resentencing on a felony conviction pursuant to
subdivision (b) of section 1170.18, then the reduction will have no effect on any pending or future
prosecutions for being a felon in possession of a firearm. (See People v. Davis 2016 WL 1242634,
*2.)
However, defendants have argued that if they have had their felony conviction re-designated a
misdemeanor pursuant to subdivision (g), they are eligible to possess firearms because subdivision
(k) only states “resentencing” does not permit the defendant to own or possess firearms.
It seems obvious that the term “resentencing” as used in subdivision (k) refers to both resentencing
under subdivision (a) and designation under subdivision (g). (See People v. Davis 2016 WL
1242634, * 3 [stating that section 1170.18(k)’s qualification maintaining the bar on felons possessing
firearms notwithstanding reduction of a felony to a misdemeanor is imposed “on the recall or
redesignation of these felony convictions”].)
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After all, it makes no sense to draw a distinction between persons who obtain a reduction while
serving a sentence and those who obtain a reduction after completing their sentence. Nevertheless,
defendants have gained some traction by contrasting the inclusion of the term “designated” in the
first portion of subdivision (k) with its absence in the latter portion. (Cf., In re Jennings (2003)
106 Cal.App.4th 869, 888 [“where a statute, with reference to one subject contains a given
provision, the omission of such provision from a similar statute concerning a related subject is
significant to show that a different legislative intent existed with reference to the different
statutes.”].) The idea being that if subdivision k was intended to prevent both defendants who
petitioned for resentencing and those who applied for re-designation, the statute would read “except
that such resentencing or designation shall not permit . . .”
The response to this argument is that the structure of the sentence strongly indicates that it was a
shorthand way of referring to reduction under either subdivision (b) or subdivision (g). If the
authors actually meant to limit the ban on firearms to those defendants whose sentences were
recalled and resentenced under subdivision (b), why not be more specific and draw a clear
distinction between resentencing and redesignation? Since the ban on possessing firearms is a lifetime ban, what rationale could there possibly be for allowing defendants with convictions who are
still serving their sentence not to possess firearms while those who have completed their sentence to
possess firearms? Nor does the distinction further any purpose Thus, even assuming the language
could be read as drawing such a distinction, it should be ignored as drafter’s error
3.
If a defendant obtains a reduction of a felony conviction that
underlies a charge or conviction of a being a felon in possession of
a firearm in violation of Penal Code section 29800, how will the
charge or conviction for being a felon in possession of a firearm be
impacted?
Defendants who have been charged with being a felon in possession of a firearm in violation of Penal
Code section 29800 may attempt to stop the prosecution of that offense by obtaining a reduction to
a misdemeanor of the underlying felony conviction. Will this be successful? And does it matter
when the underlying felony conviction has been reduced?
Assuming a court buys off on the defense argument that there is a distinction between resentencing
and re-designation for purposes of the applicability of subdivision (k), this still leaves open the
question of whether a defendant who has had his felony conviction re-designated may be prosecuted
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for violating Penal Code section 29800 when the re-designation occurred after the crime was
committed or charged, after the defendant was convicted or sentenced, or after the sentence became
final.
Some guidance in this regard was provided in People v. Williams (2016) 245 Cal.App.4th 458
[rev. filed]. The court in Williams was addressing the question of whether a defendant was entitled
to have a section 667.5 prior state prison felony enhancement stricken where the defendant was
convicted and sentenced on the enhanced offense but the defendant later obtained a reduction of the
felony underlying the section 667.5(b) state prison prior to a misdemeanor. (Id. at p. 463.)
In support of its conclusion the reduction of the felony conviction to a misdemeanor was not
entitled to a “retroactive” effect, the Williams court looked to analogous cases involving the
issue of whether a crime based on defendant’s status at the time of the offense is impacted by a
subsequent change in that status such as when a defendant is charged with being a felon in
possession of a firearm based on a felony reduced after defendant committed the offense of being
a felon in possession of a firearm. The Williams court held a “court’s order declaring a
wobbler to be a misdemeanor has been held not to call into question a . . . defendant’s conviction
for being a felon in possession of a firearm.” (Id. at p. 468 citing to People v. Holzer (1972) 25
Cal.App.3d 456, 460.) Later, the Williams court emphasized that “the status of a prior
conviction is assessed at the time of the original sentencing, it is presumptively unaffected by
later events.” (Id. at pp. 468-469.) And cited to People v. Harty (1985) 173 Cal.App.3d 493,
499 [later invalidation of felony conviction underlying felon-in-possession charge does not
negate that charge] and People v. Sanchez (1989) 211 Cal.App.3d 477, 479–480 [same] as
examples of the application of this principle. (Williams at p. 469.)
Similar guidance was provided in People v. Perez (2015) 239 Cal.App.4th 24 [rev. gtd, dkt #
S229046]. The court in Perez was addressing the question of whether a defendant was entitled
to have a conviction for failing to appear on a felony in violation of Penal Code section 1320(b)
reduced to a misdemeanor conviction based on the fact that the felony offense that defendant
had failed to appear on was itself reduced to a misdemeanor pursuant to section 1170.18. (See
this IPG memo, section VI-11-at p. 218.) In support of its conclusion that defendant was not
entitled to the reduction, the Perez court looked to analogous cases involving the issue of
whether a crime based on defendant’s status at the time of the offense is impacted by a
subsequent change in that status. One of those analogous circumstances the Perez court
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considered was when a defendant is charged with being a felon in possession of firearm. The
Perez court observed: “a felon in possession of a firearm cannot halt a prosecution for such
crime by attacking the validity of the underlying felony, because the offense is based on that
person's status at the time of possession. (Perez at p. 29, emphasis in original, citing to People
v. Harty (1985) 173 Cal.App.3d 493, 499–500 [construing former section 12021; “the possible
invalidity of an underlying prior felony conviction provides no defense to possession of a
concealable weapon by a felon”] and People v. Sanchez (1989) 211 Cal.App.3d 477, 479–481
[equivalent holding construing former section 12021.1]; see also In re Watford (2010) 186
Cal.App.4th 684, 693 [quoted in Perez for the proposition that a defendant required to register
as a sex offender may be held accountable for not registering, “even if the predicate offense
existing when the offender fails to register is later invalidated”].)
As noted above, Perez has been taken up for review (see People v. Perez, docket # S229046), but
Williams and the cases of Harty and Sanchez should provide ample ammunition to argue that
so long as the defendant possessed a firearm while he was a felon, the fact the defendant
subsequently had his felony conviction reduced to a misdemeanor should not prevent prosecution of
the defendant.
If that argument is not dispositive, then the general argument that Proposition 47 does not apply
retroactively should govern with greater or lesser force depending on when the underlying felony
was reduced vis-à-vis the pending section 29800 prosecution. (See this IPG memo, section VI -5-A
at pp. 194-199 [discussing the retroactivity argument as applied in the context of a defense challenge
to the use of a reduced felony for enhancement purposes].)
4.
If a defendant simultaneously (and successfully) obtains a
reduction of his sole felony conviction to a misdemeanor pursuant
to Proposition 47 and Penal Code section 17(b), will the defendant
be allowed to possess a firearm?
Clearly subdivision (k) of section 1170.18 does not permit a defendant who is resentenced or (very
likely) re-designated as a misdemeanant to own or possess a firearm as a result of that resentencing
or re-designation. (See this IPG memo, section VI-2 at pp. 189-190.) In contrast, a defendant who
successfully petitions to have his felony conviction reduced to a misdemeanor pursuant to Penal
Code section 17(b)(3) no longer a felon for purposes of the statutes barring felons from possessing
firearms. (People v. Gilbreath (2007) 156 Cal.App.4th 53, 57-58.)
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The question then arises if a defendant comes to court and simultaneously obtains a reduction of a
felony to a misdemeanor pursuant to section 1170.18 and section 17(b)(3), is the defendant barred
from possessing firearms in the future.
Since a court has greater discretion to deny a motion for reduction of a felony to a misdemeanor
under section 17(b) than a motion to reduce a felony to a misdemeanor under section 1170.18, it
would seem prudent for the court to deny the former and grant the latter. However, there is nothing
which says a court cannot grant both motions. (Cf., People v. Tidwell 2016 WL 1354717, *2-*4
[defendant who obtained section 1203.4 relief on a felony conviction still entitled to have that felony
conviction re-designated as a misdemeanor by way of a section 1170.18(f) petition].)
In the event the court decides to grant both motions, whether the defendant will be allowed to
possess firearms will turn on how broadly the courts decide to interpret the language in section
1170.18(k) that “resentencing shall not permit that person to own, possess, or have in his or her
custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with
Section 29800) of Division 9 of Title 4 of Part 6.” (Emphasis added.)
The “shall not permit” language can be read in two ways. If it is read as meaning that resentencing
under section 1170.18 affirmatively prevents the person from owning or possessing a firearm, then
granting of section 1170.18 relief will bar possession regardless of whether section 17(b) relief has
also been granted. On the other hand, the language is more likely to be read as simply meaning that
obtaining section 1170.18 relief does not by itself grant the right to possess a firearm, then obtaining
simultaneous relief under section 1170.18 and section 17(b) would likely allow the defendant to
possess a firearm under the authority of People v. Gilbreath (2007) 156 Cal.App.4th 53.
5.
What factors generally go into deciding the impact of a
Proposition 47 reduction of a felony to a misdemeanor on use of
the conviction for enhancement purposes?
The impact of obtaining a reduction or re-designation of a felony to a misdemeanor pursuant to
section 1170.18 has created a number of hotly litigated issues when it comes to whether a reduced
felony can be used to enhance to a new offense. So far, two factors have come to play a large role in
deciding whether a reduced felony can still serve to enhance a new felony sentence: (i) when the
reduction occurred; and (ii) whether the enhancement involves an offense expressly mentioned in
Proposition 47.
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A.
When a prior conviction is reduced to a misdemeanor under
Proposition 47 is important in deciding whether it can be used to
enhance a sentence.
In interpreting how to apply subdivision (k), several courts have looked to how very similar language
in Penal Code section 17(b)(3) (which allows for a reduction of a felony to a misdemeanor under
certain circumstances) has been interpreted. In particular, these courts have considered how the
phrase “misdemeanor for all purposes” was interpreted in the California Supreme Court decision in
People v. Park (2013) 56 Cal.4th 782. (See People v. Abdallah 2016 WL 1581899 at pp. *4-*5;
People v. Williams (2016) 245 Cal.App.4th 458, 468 [rev. filed]; People v. Carrea (2016) 244
Cal.App.4th 966, 976-977 [rev. filed]; People v. Ruff (2016) 244 Cal.App.4th 935, 942-943 [rev.
filed]; People v. Valenzuela (2016) 244 Cal.App.4th 692, 709-711 [rev. gtd, dkt # S232900];
People v. Buycks (2015) 241 Cal.App.4th 519, 526 rev. gtd, dkt # S231765].)
In Park, the California Supreme Court considered whether a conviction for a serious felony that had
later been reduced to a misdemeanor under section 17(b)(3) and dismissed pursuant to Penal Code
section 1203.4(a)(1) could serve as the basis for a five-year enhancement under Penal Code section
667(a) in a still later prosecution for a new offense. The Park court concluded that once the
conviction was reduced to a misdemeanor, it could no longer serve as the basis for the enhancement:
“When the court properly exercises its discretion to reduce a wobbler to a misdemeanor, it has found
that felony punishment, and its consequences, are not appropriate for that particular defendant.”
(Id. at p. 801.) However, the Park court noted that “there is no dispute that ... defendant would be
subject to the section 667(a) enhancement had he committed and been convicted of the present
crimes before the court reduced the earlier offense to a misdemeanor.” (Id. at p. 802, emphasis
added; see People v. Williams (2016) 245 Cal.App.4th 458, 468 [rev. filed] [quoting Park on
this point]; People v. Carrea (2016) 244 Cal.App.4th 966, 976-977 [rev. filed] [referencing Park
and finding defendant could not get dismissal of section 667.5 felony prior conviction enhancement
where the section 667.5 prior had been reduced to a misdemeanor after commission, conviction, and
sentencing on new offense]; People v. Ruff (2016) 244 Cal.App.4th 935, 943 [referencing Park
and finding defendant’s new sentence could properly be enhanced by section 667.5 felony prior
conviction where the section 667.5 prior had been reduced to a misdemeanor after commission,
conviction, and sentencing on new offense]; People v. Valenzuela (2016) 244 Cal.App.4th 692,
710 [rev. gtd, S232900] [same]; see also People v. Buycks (2015) 241 Cal.App.4th 519, 526 [rev.
gtd, dkt # S231765] [“the voters are deemed to have been aware of Park’s interpretation of the
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phrase ‘it is a misdemeanor for all purposes’ in section 17, subdivision (b), so their use of almost
identical language in section 1170.18, subdivision (k) signaled their desire to have the statutes
construed consistently.”].)
Another “time-related” consideration that will come into play in deciding whether a prior conviction
that has been reduced pursuant to section 1170.18 should be treated as a misdemeanor or a felony
when it is, or has been, used as an enhancement is whether the reduction is being applied
“retroactively.” Courts have grappled with what is considered a “retroactive” application of
Proposition 47? And, if Proposition 47 is being applied retroactively, does that mean it is being
applied improperly?
Any time a felony conviction is reduced, no matter when it occurs or how collateral the reduction is
to the charged offense, expect the defense to argue that Proposition 47 is a law mitigating
punishment and thus, under the rule of In re Estrada (1965) 63 Cal.2d 740 (i.e., “[i]f the
amendatory statute lessening punishment becomes effective prior to the date the judgment of
conviction becomes final then, . . . it, and not the old statute in effect when the prohibited act was
committed, applies”) the defendant is entitled to preclude the use of an enhancement based on the
reduced conviction. The general response to this argument should be is that the Estrada rule does
not apply when the statute itself makes it clear it is not retroactive and Proposition 47 makes it clear,
that except in limited identified circumstances, it is not retroactive. (See this IPG outline, section
III-2 at pp. 114-116.)
All things being equal, and assuming Park will continue to be considered a lodestar on the issue, we
should be able to generally figure out whether a conviction reduced pursuant to section 1170.18 can
be used to enhance or bolster a new offense when the reduction occurred before the new offense
was committed and when reduction occurred after verdict and sentence on the new
offense. The more hotly contested questions will arise when the reduction occurred somewhere in
between these two points on the chronological time line of a criminal prosecution, i.e., after
defendant committed the offense but before the defendant was sentenced on the new offense.
Pre - Offense
If the prior felony conviction has already been reduced to a misdemeanor before the commission of a
new offense – and the new offense is not based on possession of a firearm - the language of section
1170.18(k) very likely dictates that the new offense may not be enhanced by the prior felony (now
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misdemeanor) conviction. (See People v. Park (2013) 56 Cal.4th 782, 801-802; People v.
Valenzuela (2016) 244 Cal.App.4th 692, 709-711 [rev. gtd, dkt # S232900]; People v. Buycks
(2015) 241 Cal.App.4th 519, 526 [rev. gtd, dkt # S231765 ]; cf., People v. Carrea (2016) 244
Cal.App.4th 966, 976 [rev. filed] [finding section 1170.18 not to apply to enhancements but also
stating “section 1170.18, subdivision (k)’s language, ‘for all purposes,’ applies, at most, prospectively
to preclude future or nonfinal sentence enhancements based on felony convictions redesignated as
misdemeanors under the Act”, emphasis added by IPG] .)
Post-Offense/Pre-Charging
If the prior felony conviction has been reduced to a misdemeanor after the commission of a new
offense but before the new offense is charged, an argument can be made that at the time the
defendant committed the new offense he was eligible to have his offense enhanced and allowing a
post-offense, pre-charging reduction to eliminate the prior felony conviction as an enhancement is
an improper “retroactive” application of Proposition 47. (Cf., People v. Perez (2015) 239
Cal.App.4th 24, 29 [rev. gtd, dkt # S229046] [“a felon in possession of a firearm cannot halt a
prosecution for such crime by attacking the validity of the underlying felony, because the offense is
based on that person's status at the time of possession”].) Whether this argument flies will depend
on how broadly the term “retroactive” is interpreted. Certainly, if the prior conviction is viewed as a
“sentencing” enhancement, reduction of the prior conviction to a misdemeanor before the defendant
has even been charged may not be viewed as a retroactive application because the enhancement only
becomes applicable at sentencing. (Cf., People v. Abdallah 2016 WL 1581899, *6 (discussed in
this IPG memo, section VI-7-B at pp. 211-212) [indicating that when a “prior conviction is no longer
a felony at the time the court imposes a sentence enhancement under section 667.5, Proposition 47
precludes the court from using that conviction as a felony merely because it was a felony at the time
the defendant committed the offense”].)
Post-Charging/Pre-Conviction
If the prior felony conviction is reduced to a misdemeanor after it has been alleged as an
enhancement to a new offense, an argument can be made that at the time the defendant committed
and was charged with the new offense he was eligible to have his offense enhanced and allowing a
post-charging reduction to eliminate the prior felony conviction as an enhancement is an improper
“retroactive” application of Proposition 47. Whether this argument flies will depend on how broadly
the term “retroactive” is interpreted. The rationale for arguments on each side will closely track
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arguments used in the post-offense/pre-charging context, albeit with more weight being given to the
arguments favoring an interpretation that Proposition 47 is being applied retroactively when the
reduction is being used post-charging than pre-charging.
Post-Conviction/Pre-Sentence
If the prior felony conviction is reduced to a misdemeanor after defendant has been convicted of the
new offense and the prior conviction has been proved to the trier of fact, a good argument can be
made that striking the prior conviction based on a post-conviction/pre-sentence Proposition 47 is an
improper retroactive application of Proposition 47. Whether this argument flies will depend on how
broadly the term “retroactive” is interpreted. It seems that this circumstance will fall under almost
all reasonable interpretations of what retroactive application means. But as noted earlier, in the case
of People v. Abdallah 2016 WL 1581899 (discussed in this IPG memo, section at VI-7-B at pp.
211-212), the court indicated that when it comes to prior convictions being used as an enhancement
the dividing line is whether the reduction occurred before or after sentencing. (Id. at p. *6.)
Post-Sentence/Pre-Finality
If the prior felony conviction is reduced to a misdemeanor after defendant has been convicted and
sentenced on the new offense, but the conviction is not yet final, an even stronger argument can be
made that striking the prior conviction based on subsequent Proposition 47 reduction of the
underlying felony prior conviction is an improper retroactive application of Proposition 47. (See
People v. Williams (2016) 245 Cal.App.4th 458, 463-474 [rev. filed]; People v. Valenzuela
(2016) 244 Cal.App.4th 692, 709-711[rev. gtd, dkt #S232900]; People v. Ruff (2016) 244
Cal.App.4th 935, 941-948 [rev. filed]; cf., People v. Carrea (2016) 244 Cal.App.4th 966, 976 [rev.
filed] [finding section 1170.18 not to apply to enhancements but also stating “section 1170.18,
subdivision (k)’s language, ‘for all purposes,’ applies, at most, prospectively to preclude future or
nonfinal sentence enhancements based on felony convictions redesignated as misdemeanors under
the Act.”].) Whether this argument flies will depend on how broadly the term “retroactive collateral
consequence” is interpreted – but it seems that this circumstance will fall under almost all
reasonable interpretations of what retroactive application means.
For example, in People v. Valenzuela (2016) 244 Cal.App.4th 692 [rev. gtd, dkt #S232900], the
defendant was convicted of various offenses and had her sentence enhanced under section 667.5
because she had a felony receiving stolen property conviction (for which she served a sentence in
state prison). Defendant filed an appeal of her conviction before the passage of Proposition 47. A
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few weeks after Proposition 47 passed (while the appeal was still pending), the defendant
successfully obtained a reduction of the offense underlying her prior felony prison conviction to a
misdemeanor. (Id. at pp. 707-708.) The defendant then asked for the case to be remanded to the
trial court to allow for an attack on the section 667.5 prior conviction, arguing that the language of
section 1170.18(k) “suggests that the electorate wanted eligible offenders like [her] to be shielded
from the collateral consequences of prior prison terms stemming from felonies that the law now
recognizes as misdemeanors.” (Id. at p. 709.) But the appellate court declined the request because
it believed “[n]othing in this language or the ballot materials for Proposition 47 indicate[d] [section
1170.18(k)] was intended to have the retroactive collateral consequences that [the defendant]
advances. To the contrary . . . , the procedures set forth in section 1170.18 that must be followed to
obtain the resentencing and reclassification benefits of Proposition 47 indicate the electorate’s intent
for a specific, limited prospective application of the relief available under the new law.” (Id. at p.
709, emphasis added by IPG.) A similar conclusion was reached in People v. Ruff (2016) 244
Cal.App.4th 935, 941-948 [rev. filed] [discussed in detail in this IPG outline, section VI-7 at p. 201].)
Pre-Reduction/Pre-Finality
In People v. Diaz (2015) 238 Cal.App.4th 1323, the defendant argued the appellate court should
reduce his 2009 prior conviction for a felony petty theft to a misdemeanor and then strike the
section 667.5 enhancement based on that conviction because it is no longer a felony. (Id. at p.
1331.) The Diaz court rejected this argument as premature, stating that it failed at the outset
because defendant had not yet obtained a reduction of the felony petty theft to a misdemeanor in the
superior court. (Id. at pp. 1331-1334.)
Post-Finality
There is no legitimate argument the reduction of the offense underlying an enhancing prior
conviction should impact the new offense (which was enhanced) when the new offense is final. For
example, in People v. Diaz (2015) 238 Cal.App.4th 1323, the defendant sought to compel an
appellate court to reduce his prior felony conviction to a misdemeanor so that it could not be used to
enhance his new offense pursuant to section 667.5. The Diaz court rejected the argument the
Estrada rule applied when it was not the prior conviction but only the new offense that was not
“final.” (Diaz at p. 1336.) The Diaz court said the judgment on the prior conviction “was final long
before the operative date of Proposition 47. Thus, the presumption of Estrada does not apply to
compel a reduction of his 2009 conviction to a misdemeanor.” (Ibid.) Although the defendant
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argued his 2009 conviction was not final “in the context of this case,” because it was used to support
a section 667.5, subdivision (b) enhancement that is part of the judgment he is appealing, the Diaz
court said “that reasoning stretches the Estrada rule to the breaking point.” (Diaz at p. 1336.)
Similarly, in People v. Williams (2016) 245 Cal.App.4th 458 [rev. filed], the court refused to
apply the Estrada rule to permit a defendant to retroactively challenge a section 667.5
enhancement where the enhancement was imposed and the prior conviction used for enhancement
was final even though the defendant obtained an 1170.18 reduction of the conviction underlying the
section 667.5 enhancement before the offense it enhanced was final. (Williams at p. 473.) And in
People v. Carrea (2016) 244 Cal.App.4th 966 [rev. filed], the court rejected the argument that the
Estrada rule required the striking of section 667.5 enhancement where defendant obtained the
reduction of the felony conviction underlying the enhancement after conviction on the offense
enhanced by section 667.5 had become final. (Id. at p. 979.)
B.
Whether the conviction allowing for the enhancement at issue involves
an offense expressly mentioned in Proposition 47 is important in
deciding whether it can be used to enhance a sentence.
Another important consideration in deciding whether an offense that was reduced is being
improperly applied is whether the defendant is seeking a reduction of an offense specifically
mentioned in Proposition 47 or whether the defendant is requesting a reduction of an offense that is
not mentioned in Proposition 47 (i.e., a collateral offense) but which defendant is claiming is
impacted by a reduction in an offense that is specifically mentioned in Proposition 47. (See e.g.,
People v. Valenzuela (2016) 244 Cal.App.4th 692, 709 [rev. gtd, dkt #S232900] [indicating that
Proposition 47 does not have “retroactive collateral consequences”]; People v. Carrea (2016) 244
Cal.App.4th 966, 974 [rev. filed] [rejecting argument section 667.5(b) prior state prison felony
enhancement must be dismissed after conviction on enhanced offense where defendant later
obtained Proposition 47 reduction of conviction underlying prior state prison felony to misdemeanor
because “1170.18's plain language expressly applies only to convictions of offenses and not the
imposition of sentence enhancements”]; People v. Ruff (2016) 244 Cal.App.4th 935 [rev. filed]
[rejecting argument section 667.5(b) prior state prison felony enhancement must be dismissed after
conviction on enhanced offense where defendant later obtained Proposition 47 reduction of
conviction underlying prior state prison felony to misdemeanor because, inter alia, Proposition 47
did not reference section 667.5(b), mention recidivist enhancements, or make amendments to any
such provisions]; People v. Perez (2015) 239 Cal.App.4th 24, 29 [rev. gtd, dkt # S229046]
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(discussed in this IPG memo, section VI-11 at pp. 218-219) [defendant convicted of a felony drug
charge (Health & Saf. Code, § 11377) and felony charge of failing to appear after being released on
OR on the felony drug charge (Pen. Code, § 1320(b)) before the passage of Proposition 47 entitled to
reduction of drug charge to misdemeanor but not also reduction of felony fta charge to misdemeanor
because, inter alia, Proposition 47 did “not speak to pendent or ancillary offense, but only to the
offenses listed therein.”].)
6.
Does it violate equal protection to refuse to give Proposition 47
reductions retroactive effect?
Almost all published cases to have addressed the issue have rejected arguments that refusal to give
retroactive effect in general violates the principles of equal protection.
In People v. Williams (2016) 245 Cal.App.4th 458 [rev. filed], the court rejected defendant’s
argument that refusing to give Proposition 47 re-designations retroactive effect violated equal
protection. The defendant argued that equal protection is violated whenever the law “affects two or
more similarly situated groups in an unequal manner” without the classification having a “rational
relationship to a legitimate state purpose[.]” (Id. at p. 474.) According to the defendants, persons
sentenced after Proposition 47 passed “are able to avoid enhancements based on prior felony or
wobbler convictions (because the redesignations they obtain on those prior convictions apply
prospectively)” while those “sentenced in the past . . . are unable to avoid enhancements based on
prior felony or wobbler convictions (because the redesignations they obtain on those prior
convictions do not apply retroactively).” (Id. at p. 474.) The Williams court did not buy this
argument because the disparity in treatment is a “function of the date Proposition 47 took effect”
and “it is well settled that “‘[a] reduction of sentences only prospectively from the date a new
sentencing statute takes effect is not a denial of equal protection.’”” (Ibid.) The rational basis for
the distinction being “the state's legitimate interest in ‘assur[ing] that penal laws will maintain their
desired deterrent effect by carrying out the originally prescribed punishment as written.’” (Id. at p.
475.)
The Williams court distinguished two cases cited by the defendant in support of his claim that
equal protection demanded retroactive effect: In re Kapperman (1974) 11 Cal.3d 542 and In re
Chavez (2004) 114 Cal.App.4th 989. (Id. at pp. 474-475.) The Williams court distinguished
Kapperman on the ground it involved the question of whether equal protection compelled the
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award of presentence credits against sentences for convictions that were final prior to the enactment
of the statute recognizing those credits, and not whether equal protection allowed prospective only
application of statutes lessening punishment for a particular offense. The Williams court stated
even Kapperman recognized equal protection did not apply in the latter circumstance.
(Williams at p. 475.) The Williams court distinguished, and partially disagreed with, Chavez
(which had held that equal protection compelled resentencing on a final conviction that was
originally sentenced under our state's indeterminate sentencing law in light of a new statute
extending determinate sentencing to the crime at issue) on several grounds. First, the court pointed
out that, unlike with Proposition 47, the Legislature had expressed an intent to make the statute at
issue in Chavez retroactive. (Williams at p. 475.) Second, the court said it was questionable
whether Chavez applied the correct test for assessing equal protection violations, i.e., Chavez
indicated that an equal protection challenge would succeed if a court found “legitimate public
purpose” for not drawing the classification, instead of the true test which requires the challenger to
negate “every conceivable basis” for drawing the classification. (Williams at p. 475.) Third, the
court noted Chavez “dealt with a statute that was part of a larger effort to transmogrify sentencing
law in the state by moving it from indeterminate to determinate” whereas Proposition 47 had “a
more modest effect . . . of redesignating a handful of drug and theft crimes as misdemeanors[.]”
(Williams at p. 475.)
In People v. Carrea (2016) 244 Cal.App.4th 966 [rev. filed], the court also rejected defendant’s
argument that it violated equal protection to deny the benefit of Proposition 47 to persons in the
defendant’s position (i.e., persons who are currently serving a prison sentence pursuant to a final
judgment imposing a prison prior enhancement based on a felony conviction subsequently
redesignated as a misdemeanor under section 1170.18) while giving the benefit to persons who have
yet to be sentenced and who have a prison prior where their underlying convictions have been
reduced from felonies to misdemeanors. The Carrea court held refusal to apply a statute
retroactively does not violate equal protection; and because prospective sentencing changes based on
an effective date presumably recognize “legitimate ... concerns associated with the transition from
one sentencing scheme to another,” applying Proposition 47 “only prospectively bears a rational
relationship to the legitimate state interest of transitioning from the prior sentencing scheme to the
Act's sentencing scheme.” (Id. at p. 980.)
In People v. Ruff (2016) 244 Cal.App.4th 935 [rev. filed] the court rejected the argument that it
violated equal protection to allow a defendant’s robbery to be enhanced by the section 667.5 state
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prison prior conviction for possessing methamphetamine where the conviction underlying the prison
prior had been reduced to a misdemeanor after conviction on the robbery. The Ruff court held
defendant must show he is similarly situated to the defendant to whom the law does not apply in
order to prevail on an equal protection challenge and “someone who served a prison term for a
felony and had his or her subsequent sentence enhanced therefor while the prior offense was a
felony, is [not] similarly situated to someone whose prior conviction was reduced to a misdemeanor
before it was used to enhance his or her current sentence.” (Id. at pp. 948-949 [and noting as well
that even if they were to find the two groups were similarly situated, there would be a rational basis
for drawing a distinction between the groups considering that the right to equal protection does not
“forbid statutes and statutory changes to have a beginning and thus to discriminate between the
rights of an earlier and later time”].)
Finally, in People v. Valenzuela (2016) 244 Cal.App.4th 692 [rev. gtd, dkt #S232900] the court
rejected the defendant’s argument that failing to strike a Penal Code section 667.5 prior on appeal
(where the underlying felony had been reduced to a misdemeanor after the defendant was convicted
on the substantive offense that was being appealed) violated equal protection. The defendant
claimed that “no rational basis justifies excluding her from the benefit that she would have received
if she had committed, and been sentenced for, the present offenses after her 2012 receipt of stolen
property conviction was reduced to a misdemeanor under Proposition 47.” (Id. at p. 711.) However,
the Valenzuela court observed that the Legislature may rationally “specify that such statutes are
prospective only, to assure that penal laws will maintain their desired deterrent effect by carrying out
the original prescribed punishment as written” even though the selection of the effective date of the
statute is somewhat arbitrary. (Ibid.)
7.
One-Year State Prison Priors: If a defendant has had a felony
conviction (for which the defendant completed a prior prison
term) reduced to a misdemeanor pursuant to Proposition 47,
may the prior conviction still be used as a one-year Penal Code
section 667.5 prior to enhance a defendant’s subsequent felony
conviction?
Penal Code section 667.5(b) provides: “Except where subdivision (a) applies, where the new offense
is any felony for which a prison sentence or a sentence of imprisonment in a county jail under
subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any
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other sentence therefor, the court shall impose a one-year term for each prior separate
prison term or county jail term imposed under subdivision (h) of Section 1170 or
when sentence is not suspended for any felony; provided that no additional term shall be
imposed under this subdivision for any prison term or county jail term imposed under subdivision
(h) of Section 1170 or when sentence is not suspended prior to a period of five years in which the
defendant remained free of both the commission of an offense which results in a felony conviction,
and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of
Section 1170 or any felony sentence that is not suspended. A term imposed under the provisions of
paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the term is suspended by the
court to allow mandatory supervision, shall qualify as a prior county jail term for the purposes of the
one-year enhancement.” (Emphasis added by IPG.)
Defendants often argue that a prior felony conviction for an offense which is subject to reduction or
which has been reduced to a misdemeanor (either before or after the commission, charging of,
conviction of, or sentencing on the new offense) pursuant to Proposition 47 cannot be used under
Penal Code section 667.5 to enhance the sentence on a new offense. (See e.g., People v. Carrea
(2016) 244 Cal.App.4th 966, 974 [rev. filed]; People v. Ruff (2016) 244 Cal.App.4th 935, 941 [rev.
filed]; People v. Valenzuela (2016) 244 Cal.App.4th 692, 708 [rev. gtd, dkt #S232900].)
A.
Can a Penal Code section 667.5 enhancement be used regardless of
when a felony conviction for which the defendant has served a prior
prison term has been reduced to a misdemeanor?
There is an argument that can be made that a prior conviction that qualifies under Penal Code
section 667.5 remains usable for enhancement purposes under all circumstances – regardless of
when the felony conviction was reduced to a misdemeanor pursuant to Proposition 47.
The
rationale behind this argument is that it is not the prior conviction itself that enhances the sentence
but fact the defendant has served a “prior separate prison term or county jail term” and that fact is
not altered by the reduction of a felony conviction to a misdemeanor by Proposition 47. In other
words, the enhancement is based on the defendant’s recidivist status, not on the underlying criminal
conduct. (See People v. Valenzuela (2016) 244 Cal.App.4th 692, 708, fn. 7 [rev. gtd, dkt
#S232900]; cf., People v. Ruff (2016) 244 Cal.App.4th 935, 946 [rev. filed]; but see People v.
Abdallah 2016 WL 1581899, *7.)
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This rationale was one of two reasons the court in People v. Valenzuela (2016) 244 Cal.App.4th
692 [rev. gtd, dkt #S232900] determined that a prison prior was properly used to impose a one-year
enhancement on a new felony offense pursuant to section 667.5 even though the prior felony
conviction had been reduced to a misdemeanor. The primary reason was that the reduction had not
occurred until after defendant had been convicted and sentenced on the new felony offense. (Id. at
pp. 709-712; see this IPG memo, section VI-7- B at p. 211.) However, the secondary reason behind
the Valenzuela court’s conclusion was that “a section 667.5 enhancement is based on the
defendant’s status as a recidivist, not on the underlying criminal conduct.” (Id. at pp. 710-711 [and
citing to People v. Gokey (1998) 62 Cal.App.4th 932, 936 for the proposition that [s]entence
enhancements for prior prison terms are based on the defendant’s status as a recidivist, and not on
the underlying criminal conduct, or the act or omission, giving rise to the current conviction”].) The
Valenzuela court pointed out that “[a]t the time [the defendant] was sentenced, the [prior]
conviction was a felony and she had served a prison sentence for that conviction. The latter fact is
not altered by Proposition 47.” (Id. at p. 711; see also People v. Williams (2016) 245
Cal.App.4th 458, 473 [rev. filed]; People v. Ruff (2016) 244 Cal.App.4th 935, 948 [rev. filed].)
In People v. Williams (2016) 245 Cal.App.4th 458 [rev. filed], the court also highlighted the fact
that the section 667.5(b) “enhancement is designed to provide an extra deterrent for criminals who
were not deterred by prior terms of imprisonment in prison or in county jail under lengthier felony
sentences. The critical factor is thus the fact of imprisonment, not the designation of the offense that
lead to it.” (Id. at p. 473.) However, the Williams court did not focus on this aspect of the section
667.5 prior enhancement to support the argument a prior felony conviction for which defendant
served a state prison term may always be used under section 667.5(b) to enhance a sentence –
regardless of when the new offense occurs. Rather, the Williams court focused on this aspect as a
consideration that counseled “against making the effect of a Proposition 47 redesignation retroactive
as to the section 667.5, subdivision (b) enhancement” when the defendant has his new offense
enhanced before the defendant has the felony conviction underlying the section 667.5 enhancement
reduced. (Id. at p. 473.)
Similarly, in People v. Ruff (2016) 244 Cal.App.4th 935 [rev. filed], the court also focused on the
fact that “[s]entence enhancements for prior prison terms are based on the defendant’s status as a
recidivist, and not on the underlying criminal conduct, or the act or omission, giving rise to the
current conviction” and noted the purpose of the enhancement is to punish defendants who have
shown that they are hardened criminals who are undeterred by the fear of prison. (Id. at p. 946.)
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However, the Ruff court did not focus on this aspect of the section 667.5 prior enhancement to
support the argument a prior felony conviction for which defendant served a state prison term may
always be used under section 667.5(b) to enhance a sentence – regardless of when the new offense
occurs. Rather, the Ruff court focused on this aspect as a way of supporting its argument that when
the defendant has his new offense enhanced before the defendant has the felony conviction
underlying the section 667.5 enhancement reduced, Proposition 47 will not retroactively apply to
prohibit use of the enhancement: “A person who refuses to reform even after serving time in prison
is clearly and significantly more dangerous than someone who merely possesses drugs for personal
use or shoplifts. We cannot conclude, from the language of the Act or the ballot materials, that voters
deemed such persons to be nonserious, nondangerous offenders, and so intended the Act to reach
back to ancillary consequences such as enhancements resulting from recidivism considered serious
enough to warrant additional punishment. Accordingly, section 3's default rule or prospective
operation, and not Estrada's narrow rule of retroactivity, applies.” (Id. at p. 946.)
*Editor’s note: It is easy to see how the rationale discussed in Williams and Ruff regarding the nature
of the section 667.5(b) enhancement may be used to support the more expansive argument that section
667.5 prior convictions remain chargeable no matter what - even when the underlying felony conviction is
reduced to a misdemeanor before the new offense occurs.
The counter argument is that a prior “felony” conviction is required to enhance a sentence under
section 667.5; and section 1170.18(k) states a conviction reduced to a misdemeanor under that
section is (subject to the exception allowing it to remain a felony for purposes of barring firearm
possession) a misdemeanor for all purposes. In People v. Abdallah 2016 WL 1581899, the
court adopted this counter argument. Relying on the Supreme Court decision in People v. Park
(2013) 56 Cal.4th 782, the Abdallah court reasoned that, “[w]hen the court properly exercises its
discretion to reduce a wobbler to a misdemeanor, it has found that the felony punishment, and its
consequences, are not appropriate for that particular defendant.” (Abdallah at p. *7, citing to
Park at p. 794.) The Abdallah court stated “one of the ‘chief’ reasons for reducing a wobbler to a
misdemeanor ‘is that under such circumstances the offense is not considered to be serious enough to
entitle the court to resort to it as a prior conviction of a felony for the purpose of increasing the
penalty for a subsequent crime.’” (Id. at p. 794.)
This argument gains some traction when you look at the language in section 667.5(b) stating “the
court shall impose a one-year term for each prior separate prison term or county jail term imposed
under subdivision (h) of Section 1170 or when sentence is not suspended for any felony.”
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The portion of that phrase stating “when the sentence is not suspended for any felony” is confusing
because it is not clear what it means for a sentence “not to be suspended for any felony.” Does the
term “for any felony” only modify “when the sentence is not suspended” or does it modify the entire
phrase?
The answer to that question comes into focus by considering the recent history of the statute. The
phrase “or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not
suspended” was added in 2011 by Realignment. Before that, section 667.5(b) read: “Except where
subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed,
in addition and consecutive to any other prison terms therefor, the court shall impose a one-year
term for each prior separate prison term served for any felony.”
Thus, whatever the Realignment folks may have meant when they inserted the language “when
sentence is not suspended,” it seems relatively clear the term “for any felony” modifies the entire
phrase, i.e., the prior prison term or section 1170(h) term must have been served for a felony. Thus,
if the crime for which defendant served a prison term is reduced to a misdemeanor per section
1170.18 and the conviction is designated “as a misdemeanor for all purposes,” the defendant
effectively served a prior prison for a misdemeanor. He did not serve a prior prison for “any felony”
as is arguably required for the enhancement to apply. (See People v. Williams (2016) 245
Cal.App.4th 458, 473-474 [rev. filed] [recounting defense argument that a section 667.5(b)
“enhancement is contingent upon ‘proof that the defendant ... was previously convicted of a felony’
(People v. Tenner (1993) 6 Cal.4th 559, 562 [alternate citation omitted]), and that the
redesignation of a felony as a misdemeanor precludes such a finding”]; People v. Lewin
(unpublished) 2015 WL 9437616, at *3.)
*Editor’s note: In support of his argument that a reduction of the felony conviction to a misdemeanor
should vitiate its use as an enhancing prior under section 667.5(b), the defendant in People v. Williams
(2016) 245 Cal.App.4th 458 [rev. filed] also raised the argument that in People v. Prather (1990) 50
Cal.3d 428, 440, the California Supreme Court had commented that “667.5(b) is aimed primarily at the
underlying felony conviction, and only secondarily, as an indicium of the felony’s seriousness, at the prior
prison term[.]” (Williams at p. 473.) However, the Williams court dismissed this contention because
the California Supreme court “has since taken a different view, noting that ‘[t]he purpose of [this]
enhancement is “to punish individuals” who have shown that they are ‘“hardened criminal[s] who [are]
undeterred by the fear of prison.”’”” (Id. at p. 473 citing to In re Preston (2009) 176 Cal.App.4th 1109,
1115 quoting People v. Jones (1993) 5 Cal.4th 1142, 1148.)
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B.
Does it make a difference when a prior conviction is reduced to a
misdemeanor under Proposition 47 in deciding whether it can be used
to enhance a sentence pursuant to Penal Code section 667.5?
Assuming the general argument that a section 667.5 prior can always be used regardless of when it is
reduced (see above) is not accepted by the courts, when the prior conviction has been reduced will
become important. The further along the process, the greater the chance a Proposition 47 reduction
of a felony qualifying for enhancement under section 667.5 will have no impact. (See this IPG
memo, section VI-5-A at pp. 194-199.)
In People v. Williams (2016) 245 Cal.App.4th 458 [rev. filed], the defendant was convicted of,
among other offenses, felony grand theft. That sentence was enhanced pursuant to section 667.5
because defendant had a prior felony state prison conviction for petty theft and prior. After
defendant was convicted of the felony grand theft, she obtained a reduction of the felony state prison
prior used to enhance her new sentence to a misdemeanor pursuant to Penal Code section 1170.18.
Defendant then unsuccessfully sought to have the one-year section 667.5 prison prior enhancement
stricken from her sentence on the felony grand theft in the sentencing court. (Id. at p. 463.)
The Williams appellate court upheld the trial court’s refusal, concluding “the redesignation of a
felony or wobbler to a misdemeanor under Proposition 47 applies prospectively (that is, from the
date of redesignation forward), but not retroactively (that is, as if the offense had been a
misdemeanor from the date it was committed).” (Id. at p. 466.) The Williams court provided
several reasons for its conclusion. First, it found Proposition 47 supported its conclusion because it
specifically created two mechanisms under section 1170.18 for redesignating felony convictions as
misdemeanors but did not “create a mechanism for obtaining a resentencing on a felony not affected
by Proposition 47 just because an offense underlying one of its enhancements is so affected.” (Ibid
[and noting, at p. 467, that the mechanisms created are meant to be “exhaustive” so “[f]ashioning a
new mechanism for “recalling” and resentencing (rather than re-“designating”) convictions whose
sentences have been completed would contravene these express and implied limitations as well as
the general rule that we are not ‘[o]rdinarily ... free to add text to the language selected by the
Legislature’”].) Second, “Proposition 47 borrows language from section 17 that has a well-defined
meaning[.]” (Id. at p. 468.) Because “identical language appearing in separate statutory provisions
should receive the same interpretation when the statutes cover the same or analogous subject
matter” . . . and because Proposition 47 and section 17 both address the effect to be given the
207
redesignation of a felony (or a wobbler that starts out as a felony) as a misdemeanor,” the Williams
court held it was “presumptively obligated to construe the phrase ‘misdemeanor for all purposes’
under Proposition 47 to mean the same as it does under section 17—namely, that a felony offense
redesignated as a misdemeanor under Proposition 47 retains its character as a felony prior to its
redesignation, and is treated as a misdemeanor only after the time of redesignation.” (Ibid.) “[A]
court’s declaration of misdemeanor status renders an offense a misdemeanor for all purposes, not
for all times. Thus, a declaration that a wobbler is a misdemeanor does not “relate back” and alter
that offense’s original status as a wobbler that is by definition to be treated as a felony until declared
otherwise.” (Id. at p. 468.) Third, the Williams court stated the “statutory purposes of
Proposition 47” imply that redesignation of an offense should not have retroactive effect. The aims
of ensuring prison spending is focused on violent and serious offenses, maximizing alternatives for
nonserious, nonviolent crime, and “investing the savings generated from this act into prevention and
support programs “do not necessarily include giving redesignations retroactive effect. Moreover,
such an effect would obligate a court to resentence on any offense, including violent crimes,
enhanced by a redesignated offense. This would directly contravene the voters’ expressed intent that
‘people convicted of murder, rape, and child molestation ... not benefit from this act.’” (Id. at p.
471.) Fourth, the Williams court held its interpretation was consistent with the statutory
presumption that amendments to the Penal Code operate prospectively and Proposition 47 did not
fall within the exception to the statutory presumption of prospective application that exists when the
statute includes an express declaration or a clear and compelling implication of retroactive effect.
(Id. at pp. 471-472 [and drawing a distinction on this basis between Proposition 47 and the statute at
issue in People v. Flores (1979) 92 Cal.App.3d 461 – a case relied upon by the defense applying a
statute reducing marijuana penalties retroactively].) The Williams court also rejected the idea that
the counter-presumption of retroactivity set forth in In re Estrada (1965) 63 Cal.2d 740 (i.e., that
a legislative act mitigating the punishment for a particular criminal offense is intended to apply to all
nonfinal judgments) was applicable. The Williams court held Estrada’s presumption applies only
to convictions that are “not yet final” and the prior conviction used to enhance under section
667.5(b) was final long before his request to strike it was made. (Id. at pp. 472-473 [and rejecting
the definition of “finality” suggested in People v. Flores (1979) 92 Cal.App.3d 461 —namely, that a
prior conviction is not final as long as the defendant has the right of appeal from the sentence
enhanced by that conviction – as inconsistent with Estrada’s definition of finality].) Lastly, the
Williams court held nothing in section 667.5(b) counsels in favor of resentencing a defendant to
eliminate this enhancement if the offense resulting in a term of imprisonment is later redesignated
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as a misdemeanor under Proposition 47 since section 667.5 is focused on punishing persons for
failure to learn from a prior state prison commitment not on punishing persons for having
previously committed a felony. (Id. at p. 473 [see this IPG memo, section VI-7-A at pp. 203-204,
discussing this aspect of the analysis in greater depth].)
The Williams court rejected all four rationales cited by the defendant for giving a different
interpretation to the phrase “for all purposes” in the context of Proposition 47 than is given to it in
the context of Penal Code section 17(b). It rejected the rationale that retroactive effect was dictated
by the requirement stated in Proposition 47 that its provisions “shall be liberally construed to
effectuate its purposes” since the court found it “well settled that ‘the legislative intent in favor of the
retrospective operation of a statute cannot be implied from the mere fact that the statute is remedial
and subject to the rule of liberal construction.’” (Id. at p. 469.) It rejected the rationale (based on
the statutory canon that “[t]he expression of some things in a statute necessarily means the
exclusion of other things”) that because there exists a stated “exception” to Proposition 47's
“misdemeanor for all purposes” declaration (i.e., that any “such resentencing shall not permit that
person to own, possess, or have in his or her custody or control any firearm or prevent his or her
conviction” under provisions governing possession of firearms by prohibited persons”), this meant
any other exception, including any “exception” against retroactive effect should not be implied. (Id.
at p. 469.) It rejected this argument because “the Legislature has also carved out several exceptions
to the effect of redesignation of wobblers under section 17 and . . . the existence of these exceptions
has not compelled the conclusion that section 17 redesignations are retroactive.” (Id at pp. 469470.) It rejected the rationale that “Proposition 47 is different from section 17 because Proposition
47 makes redesignation automatic . . . while section 17 makes redesignation discretionary as a
reward for a defendant's demonstrated good conduct.” (Id. at p. 470.) It rejected this rationale
because redesignation under section 17 is not always provided as a reward for demonstrated good
conduct (see § 17(b)(4) [designation as misdemeanor at initial charging] and (§ 17(b)(5) [designation
as misdemeanor at preliminary examination]) and even if such a distinction could be drawn, it does
not provide any basis for treating section 17 differently from Proposition 47 for purposes of
retroactivity. Finally, it rejected the rationale that it would be “absurd” not to give redesignations a
retroactive effect because the “ninety years of precedent interpreting section 17 discussed above
would seem to indicate to the contrary.” (Id. at p. 470.)
Based on all these reasons, the Williams court held “as a matter of statutory construction that the
redesignation of a felony or wobbler under Proposition 47 operates from the moment of
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redesignation forward and does not retroactively alter the designation of that crime as a felony or
wobbler. (Id. at p. 474.)
In People v. Carrea (2016) 244 Cal.App.4th 966 [rev. filed], the defendant was convicted of
inflicting corporal injury on a former cohabitant. His sentence on that offense was increased by one
year pursuant to section 667.5(b) because he had served a prison term for his prior theft-related
felony conviction. After the passage of Proposition 47, defendant successfully reduced that prior
felony conviction to a misdemeanor. Defendant then filed another motion pursuant to Penal Code
section 1170.18 to dismiss the one-year section 667.5 sentence enhancement (which had been based
on the prior conviction) which was attached to his conviction for inflicting corporal injury. The trial
court denied the motion and the defendant appealed. (Id. at pp. 971-972.) The appellate court in
Carrea concluded that that “section 1170.18 does not provide for retroactive redesignation,
dismissal, or striking of final pre-Proposition 47 sentence enhancements based on prior convictions
that are subsequently reduced from felonies to misdemeanors pursuant to section 1170.18.” (Id. at
p. 971, emphasis added by IPG.) The Carrea court also observed that its conclusion was supported
by Section 1170.18(n), which provides that section 1170.18 is not “intended to diminish or abrogate
the finality of judgments in any case not falling within the purview of this act” because the judgment,
which imposed the section 667.5(b) enhancement based on his earlier felony convictions that were
redesignated as misdemeanors, became final before the Act became effective. (Id. at p. 978 [and
applying Estrada’s definition of finality at p. 979].)
In People v. Ruff (2016) 244 Cal.App.4th 935 [rev. filed], the defendant was convicted of robbery
and his sentence was enhanced, pursuant to section 667.5, because he had suffered a prior felony
conviction for possessing methamphetamine in violation of Health & Safety Code section 11377 that
had resulted in service of a state prison term. While defendant’s appeal of the robbery conviction
was pending, defendant successfully petitioned to have his felony conviction for possessing
methamphetamine reduced to a misdemeanor pursuant to section 1170.18. (Id. at pp. 938-939.)
The defendant argued this meant his sentence on the robbery could no longer be enhanced by the
section 667.5 state prison prior conviction for possessing methamphetamine. The appellate court
rejected this argument, finding “a previously imposed sentence enhanced by a section 667.5,
subdivision (b) prior prison term is not altered by the granting of a Proposition 47 application
reducing the felony that gave rise to that prior prison term to a misdemeanor. The Act does not so
operate retroactively.” (Id. at p. 938.) The Ruff court rejected arguments that its conclusion
rendered the “for all purposes” language of section 1170.18(k) surplusage since Proposition 47 was
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not intended to reach back to ancillary consequences such as enhancements resulting from
recidivism and “[r]ules such as those directing courts to avoid interpreting legislative enactments as
surplusage are mere guides and will not be used to defeat legislative intent.” (Ruff at pp. 946, 948.)
Moreover, the Ruff court held that even if there was some ambiguity as to its application in this
circumstance, it would not resolve the ambiguity in defendant’s favor since “ambiguities are not
interpreted in the defendant’s favor if such an interpretation would provide an absurd result, or a
result inconsistent with apparent legislative intent.” (Id. at p. 948.)
In People v. Valenzuela (2016) 244 Cal.App.4th 692 [rev. gtd, dkt #S232900] the defendant was
convicted of various offenses and had her sentence enhanced under section 667.5 because she had a
felony receiving stolen property conviction (for which she served a sentence in state prison).
Defendant filed an appeal of her conviction before the passage of Proposition 47. A few weeks after
Proposition 47 passed (while the appeal was still pending), the defendant successfully obtained a
reduction of the offense underlying her prior felony prison conviction to a misdemeanor. (Id. at pp.
707-708.) The defendant asked the appellate court “to remand this case for a resentencing hearing
as to the one year prison term imposed for the prison prior.” (Ibid.) The appellate court rejected
defendant’s request, finding section 1170.18(k) was not intended to have the retroactive collateral
consequence requested by the defendant. (Id. at p. 709; see also this IPG memo, section VI-7-A at
p. 204.)
All four cases described above, however, involved reductions of section 667.5 prior felony
convictions to misdemeanors which occurred after the defendant committed and was sentenced on
the new offense that was enhanced by the section 667.5. (But see People v. Lewin (unpublished)
2015 WL 9437616, at p. *4 [holding that the reduction of a felony used as the basis of a section
667.5(b) enhancement may operate retroactively to require striking of the reduced prior conviction if
the conviction on the offense enhanced by the section 667.5(b) is not yet final because Proposition
47 “mitigated the penalty for the enhanced offense”].)
Whether a defendant will be able to prevent the section 667.5 enhancement from being imposed if
the felony conviction underlying the enhancement has been reduced to a misdemeanor after
conviction on the new offense but before the defendant has been sentenced on the new offense has
only directly been addressed by one case. In People v. Abdallah 2016 WL 1581899, the defendant
was convicted and served a state prison sentence for a felony in 2002. Less than five years after
defendant was released from custody on that offense, the defendant committed a violation of Health
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and Safety Code section 11377 which ultimately resulted in a felony conviction in 2011. In June of
2014, the defendant was charged and convicted of several new felony offenses. A section 667.5
allegation based on the 2002 conviction was also found true by the jury. In between the time the
defendant was found guilty and he was sentenced, defendant successfully petitioned to have the
section 11377 conviction from 2011 reduced to a misdemeanor. At sentencing on the new felony
offenses, the trial court added a year to defendant’s sentence pursuant to Penal Code section
667.5(b). (Id. at pp. *1-*2.) On appeal of the 2014 convictions, the defendant argued that the section
667.5 enhancement had to be stricken because if there is a five-year period following a defendant’s
release from custody on the prior felony conviction during which the defendant remains free of both
prison custody and the commission of a new offense resulting in a felony conviction, the prior
conviction may no longer be used to enhance (i.e., it washes out); and once his felony conviction
from 2009 was reduced to a misdemeanor, he met the criteria of the five-year wash out period,
eliminating the prior conviction as a viable enhancement. (Id. at pp. *1, *3.) The appellate court
agreed, holding that once the trial court recalled defendant’s felony sentence and resentenced him to
a misdemeanor, it became a misdemeanor “for all purposes” and thus “at the time of sentencing in
this case, [the defendant] was not a person who had committed ‘an offense which result[ed] in a
felony conviction” within five years after his release on parole for his prior conviction.’” (Id. at p.
*15, emphasis added by IPG.) The Abdallah court rejected the People argument’s that this was a
retroactive application of Proposition 47 and since the defendant re-offended within five years of his
release on parole on the 2002 conviction, the fact that the subsequent offense is no longer a felony
was inconsequential. (Id. at p. *5.) The appellate court stated that trial court “did not reach back in
time to resentence [the defendant] in the current case based on the redesignation of a predicate
offense under section 1170.18, subdivision (f), for the prior prison term enhancement” because the
trial court “did not use [defendant’s] 2011 conviction as if it were a felony conviction for purposes of
imposing the prior prison term enhancement until after the court had recalled [defendant’s] 2011
sentence and resentenced him under Proposition 47.” (Id. at p. *5.) On this basis, the Abdallah
court distinguished all the cases holding that Proposition 47 does not apply retroactively to
redesignate predicate offenses as misdemeanors for purposes of imposing sentencing enhancements
where the original sentence was imposed before the enactment of Proposition 47. (Id. at p. *6.)
The Abdallah court also rejected the argument that allowing Proposition 47 to “nullify” the prior
prison term enhancement would be “contrary to the broad language of article I, section 28,
subdivision (f) of the California Constitution, which requires the use of enhancements without
limitation.” (Id. at p. *6.)
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In People v. Diaz (2015) 238 Cal.App.4th 1323, the court held that a defendant seeking to reduce a
felony conviction used to enhance his sentence under section 667.5, subdivision (b) had to file his
petition to redesignate under Proposition 47 in the court of conviction of that felony—not the court
where the current sentence was imposed. (Id. at p. 1328.) As noted in People v. Williams (2016)
245 Cal.App.4th 458, “Diaz’s direction as to where to file a petition for redesignation may seem to
imply that the defendant, after obtaining that redesignation, would be able to return to the court of
current sentence and have that sentence reduced—a reduction that would only be possible if the
redesignation had a retroactive effect.” (Williams at p. 471.) However, as also pointed out in
Williams, “Diaz took pains to “express no opinion whether ... a felony conviction which has been
designated a misdemeanor under section 1170.18(k) can be used to support a section 667.5,
subdivision (b) enhancement.” (Williams at p. 471 citing to Diaz at p. 1336.)
*Editor’s note: For a discussion of how a court might resolve the issue when the section 667.5 prior
conviction is reduced before defendant has been convicted of the new offense, see this IPG memo, section
VI-5-A at pp. 194-199.
8.
Five-Year Priors: Can a conviction for theft of a firearm in
violation of Penal Code section 487(d)(2) that is reduced
pursuant to Proposition 47 later be used to enhance a sentence
by five years under Penal Code section 667(a)?
In People v. Park (2013) 56 Cal.4th 782, the California Supreme Court held that when a court
properly exercises its discretion and reduces a serious felony conviction to a misdemeanor, “that
offense no longer qualifie[s] as a prior serious felony within the meaning of section 667, subdivision
(a), and [can] not be used, under that provision, to enhance defendant's sentence.” (Id. at p. 787.)
Although the ruling in Park involved the trial court reducing the prior offense to a misdemeanor
under Penal Code section 17(b)(3), the conclusion it reached was based on the general principle “that
when a wobbler is reduced to a misdemeanor in accordance with the statutory procedures, the
offense thereafter is deemed a ‘misdemeanor for all purposes,’ except when the Legislature has
specifically directed otherwise.” (Id. at p. 795.) This principle appears equally applicable when a
conviction for violating section 487(c) is reduced to a misdemeanor by resentencing as authorized
under Penal Code section 1170.18.
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*Editor’s note: Whether a conviction for violating Penal Code section 487(d)(2) that is reduced pursuant
to Proposition 47 can be used to enhance a sentence by five years under Penal Code section 667(a) is a
different question than whether the conviction can be used as a strike; and the answer is different as well.
Unlike the Three Strikes law, section 667(a) does not state that the felony conviction “is not affected by
the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to
a misdemeanor.” (See this IPG memo, section VI-9, at p. 214.)
9.
Strikes: Can a conviction for theft of a firearm under $950 in
violation of Penal Code section 487(d)(2) that occurred before
the passage of Proposition 47 but is later reduced to a
misdemeanor still be used as a strike offense in a future case?
If the defendant suffered the prior conviction for theft of a firearm under $950 in violation of Penal
Code section 487(d)(2) before the passage of Proposition 47 but returns to court and obtains a
reduction of the conviction to a misdemeanor pursuant to section 1170.18, it is possible but unlikely
that the conviction would no longer be treated as a strike. As noted above, section 1170.18(k) states:
“Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a
misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes,
except that such resentencing shall not permit that person to own, possess, or have in his or her
custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with
Section 29800) of Division 9 of Title 4 of Part 6.” (Emphasis added by IPG.)
However, Penal Code section 667(d), in pertinent part, provides: “Notwithstanding any other
law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a serious and/or
violent felony shall be defined as: (1) Any offense . . . defined in subdivision (c) of Section 1192.7 as a
serious felony in this state. The determination of whether a prior conviction is a prior felony
conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior
conviction and is not affected by the sentence imposed unless the sentence automatically, upon the
initial sentencing, converts the felony to a misdemeanor.” (Emphasis added by IPG.) Penal Code
section 1170.12(b)(1) uses identical language.
Case law makes it clear that “whether a prior conviction qualifies as a strike for purposes of
sentencing under that [the Three Strikes] law is based ‘upon the date of that prior conviction and is
not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing,
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converts the felony to a misdemeanor.’” (People v. Park (2013) 56 Cal.4th 782, 794, citing to §§
667, subd. (d)(1), 1170.12, subd. (b)(1).) Thus, a felony conviction for a wobbler offense remains a
strike if the crime is later reduced to a misdemeanor after the time of initial sentencing. (People v.
Park (2013) 56 Cal.4th 782, 794 citing to People v. Feyrer (2010) 48 Cal.4th 426, 443–444 & fn.
8 [finding it evident that a wobbler reduced to a misdemeanor under § 17(b)(3) after suspension of
imposition of sentence could be used as a prior felony conviction under the Three Strikes law in the
event the defendant were to suffer a subsequent felony conviction]; People v. Franklin (1997) 57
Cal.App.4th 68, 73–74 [§ 17(b)(2) [which deemed a wobbler a “misdemeanor for all purposes” when
the offender is committed to, and successfully discharged from, the Youth Authority, was one of the
laws displaced by § 667, subd. (d)(1)]; and People v. Superior Court (Perez) (1995) 38
Cal.App.4th 347, 362–363 [a prior offense remains a felony for purposes of the Three Strikes law
when the court's exercise of discretion under § 17(b)(3) to reduce a wobbler to a misdemeanor occurs
after initial sentencing].)
It is true that generally, when two statutes are irremediably inconsistent, the latter statute may be
viewed as taking precedence over the former. (See People v. Franklin (1997) 57 Cal.App.4th 68,
74.) However, section 1170.18 does not use the terminology, “notwithstanding any other law” while
Penal Code sections 667(d) and 1170.12(b)(1) do. As pointed out in Souvannarath v. Hadden
(2002) 95 Cal.App.4th 1115, the phrase “notwithstanding any other provision of law” “has a special
legal connotation; it is considered an express legislative intent that the specific statute in which it is
contained controls in the circumstances covered by that statute, despite the existence of some other
law which might otherwise apply to require a different or contrary outcome.” (Id. at pp. 1125-1126,
emphasis added; accord Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th
974, 995; People v. Tillman (1999) 73 Cal.App.4th 771, 785; People v. Franklin (1997) 57
Cal.App.4th 68, 74; People v. DeLaCruz (1993) 20 Cal.App.4th 955, 963.)
Since the “notwithstanding any other law” terminology is absent from section 1170.18, there is no
irremediable conflict between sections 667(d)/1170.12(b)(1) and section 1170.18. The absence of the
term ““notwithstanding any other law” in section 1170.18 is likely fatal to any argument that a
conviction for grand theft of a firearm is no longer a “strike” because the defendant’s conviction has
been reduced to a misdemeanor pursuant to section 1170.18. This argument is given greater force
considering a version of that “notwithstanding any other law” language was included in a different
aspect of Proposition 47 (see Pen. Code, § 490.2(a) [“Notwithstanding Section 487 or any other
provision of law defining grand theft . . .”]). “It is a settled rule of statutory construction that where
215
a statute, with reference to one subject contains a given provision, the omission of such provision
from a similar statute concerning a related subject is significant to show that a different legislative
intent existed with reference to the different statutes.” (In re Jennings (2003) 106 Cal.App.4th
869, 888 citing to People v. Franz (2001) 88 Cal.App.4th 1426, 1440.)*
*Editor’s note: General rules of statutory construction apply to measures adopted by vote of the
people. (People v. Rizo (2000) 22 Cal.4th 681, 685.)
10. Bail Enhancement: If a defendant obtains a reduction of a felony
conviction to a misdemeanor under Proposition 47 in a multi-count
case where the defendant is charged with an on-bail enhancement
pursuant to Penal Code section 12022.1, must the on-bail
enhancement be dismissed?
Penal Code section 12022.1(b) provides: “Any person arrested for a secondary offense that was
alleged to have been committed while that person was released from custody on a primary offense
shall be subject to a penalty enhancement of an additional two years, which shall be served
consecutive to any other term imposed by the court.”
Both the “primary offense” (which is the offense for which a person has been released from custody
on bail or on his or her own recognizance prior to the judgment becoming final) and the “secondary
offense” (which is “the offense alleged to have been committed while the person is released from
custody for a primary offense”) must be felonies. (Pen. Code, § 12022.1(a).)
In People v. Buycks (2015) 241 Cal.App.4th 519 [rev. gtd, dkt # S231765], the appellate court had
to determine what happens to a section 12022.1 bail enhancement when, pursuant to a successful
section 1170.18 petition, the primary offense has been reduced to a misdemeanor and the defendant
must be resentenced. Specifically, in Buycks, a defendant had been convicted of a felony narcotics
offense (Health & Saf.Code, § 11350) and, “while out on bail on that first offense, committed two
additional felony offenses: petty theft with a prior (Pen.Code, § 666, subd. (a)) and evading a police
officer (Veh.Code, § 2800.2, subd. (a)).” (Id. at p. 522.) In sentencing defendant in that second
case, the court imposed a two-year section 12022.1(b) bail enhancement. After Proposition 47
passed, the trial court in the first case granted defendant’s petition to reduce his narcotics offense to
a misdemeanor. Then the court in the second case reduced his petty theft with a prior count to a
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misdemeanor. However, because the second evading police felony count remained, and, because
the defendant’s original sentence had utilized the petty theft with a prior as the principal term, the
trial court conducted a full resentencing. It elevated the felony evading count to the full base term
and reimposed the section 12022.1 enhancement. (Id. at p. 522.) The appellate court in Buycks
had no problem with the trial court making the felony evading count the base term on resentencing
but held the trial court erred in reimposing the section 12022.1 bail enhancement. (Id. at p. 525.)
The Buycks court reasoned as follows: Section 1170.18(k) generally requires that an offense that
has been reduced to a misdemeanor after a section 1170.18 resentencing “be considered a
misdemeanor for all purposes.” (Id. at p. 522.) When the trial court in the second case conducted
its resentencing it “was required to evaluate the circumstances as they existed then[.]” (Ibid;
emphasis added by IPG.) At that time, the primary offense was no longer a felony; it was a
misdemeanor. Thus, the section 12022.1 enhancement, which depends on both the primary and
secondary offense being felonies, could not be reimposed. (Ibid.) The Buycks court rejected the
argument that it was improperly applying the section 1170.18(k) “retroactively.” The Buycks court
recognized that in People v. Park (2013) 56 Cal.4th 782, the California Supreme Court indicated
that a section 17(b) reduction of an enhancing felony conviction to a misdemeanor could not
retroactively bar the use of that prior conviction to enhance a new offense if the reduction had
occurred after the defendant was charged and convicted of the new offense. Nevertheless, the
Buycks court believed that principle would not apply when there is a resentencing after the felony
had already been reduced to a misdemeanor because the resentencing court is sentencing in light of
the facts as they exist at the time of resentencing. (Id. at pp. 525-526 and fn. 2 [albeit also noting
that the case before it did “not involve a collateral challenge to an on-bail enhancement not
otherwise part of a resentencing in a second case” and suggesting they would reach a different
conclusion in that circumstance].)
The California Supreme Court has taken up Buycks for review and identified the issue to be briefed
and argued as the following: “Was defendant eligible for resentencing on the penalty enhancement
for committing a new felony while released on bail on a drug offense even though the superior court
had reclassified the conviction for the drug offense as a misdemeanor under the provisions of
Proposition 47?” (People v. Buycks (2015) 241 Cal.App.4th 519 [rev. gtd, dkt # S231765].)
*Editor’s note: If the rationale of the appellate court in Buycks is adopted by the California Supreme
Court, it should make no difference whether the felony conviction that is reduced pursuant to Proposition
47 is the primary offense (as in Buycks) or the secondary offense. The section 12022.1 enhancement
would have to be stricken upon resentencing.
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11.
Felony FTA: If a defendant obtains a reduction of a felony
conviction to a misdemeanor under Proposition 47 and the
defendant had suffered an additional felony conviction for
failing to appear in violation of Penal Code section 1320 on the
felony that was reduced, must the felony conviction for failing to
appear also be reduced to a misdemeanor conviction?
In People v. Perez (2015) 239 Cal.App.4th 24 [rev. gtd, dkt # S229046], the defendant was
convicted of a felony drug charge (Health & Saf. Code, § 11377) and was also convicted of a felony
charge of failing to appear after being released on OR on the felony drug charge (Pen. Code, §
1320(b).) His conviction became final in early 2014 before the passage of Proposition 47. (Id. at p.
26.) Defendant then successfully petitioned for a recall of his sentence and reduction of his felony
conviction pursuant to section 1170.18(a). The defendant also requested that his conviction for
violating section 1320(b) be reduced to a misdemeanor violation of section 1320(a), which makes it a
misdemeanor to fail to appear after an OR on misdemeanor offense. The defendant’s theory was
that since his felony conviction for violating section 11377 was reduced to a “misdemeanor for all
purposes” as provided for in section 1170.18(k), this meant his extant felony FTA sentence was an
“unauthorized” sentence and had to be reduced to a misdemeanor conviction. (Id. at pp. 26-27.)
The trial court denied this request and that denial was upheld by the appellate court. The appellate
court gave several reasons in support of its holding. First, the court believed that allowing the
subsequent reduction of the felony drug offense to subvert the conviction for failing to appear would
constitute an improper retroactive application of Proposition 47. Second, the court believed that
Proposition 47 did “not speak to pendent or ancillary offense, but only to the offenses listed therein.”
(Id. at p. 29.) Third, a felony conviction for failing to appear is unrelated to whether the underlying
felony resulted in a conviction, it can be violated if the defendant fails to appear on a charged felony.
Thus, the fact the underlying felony conviction was reduced to a misdemeanor should have no
bearing on the felony conviction for violation Penal Code section 1320(b). (Id. at pp. 29-30.)
However, the Perez case was taken up for review by the California Supreme Court on the question:
“Was the defendant eligible for resentencing on a felony conviction for willful failure to appear after
release on own recognizance pending trial of a felony drug offense when the superior court
reclassified the conviction for the drug offense as a misdemeanor under the provisions of Proposition
47?” (See People v. Perez (2015) 239 Cal.App.4th 24 [rev. gtd, dkt # S229046].)
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*Editor’s note: If the California Supreme Court upholds the decision in Perez on the rationale used by
the Court of Appeal, then the ruling preventing a defendant whose underlying conviction for a felony is
reduced to a misdemeanor from obtaining a comparable reduction of an accompanying felony conviction
for failing to appear on that felony after being OR’d would apply equally to an accompanying felony
conviction for failing to appear on that felony after being released on bail in violation of Penal Code section
1320.5. (See People v. Perez (2015) 239 Cal.App.4th 24, 30 [rev. gtd, dkt # S229046].)
A similar conclusion to that reached in Perez was reached by the court of appeal in People v.
Eandi (2015) 239 Cal.App.4th 801 [rev. gtd, dkt # S229305]. In Eandi, the defendant was also
charged with a felony drug offense and a felony failure to appear (Pen. Code, § 1320(b).) The
defendant pleaded no contest to the felony failure to appear charge and the drug possession charge
was dismissed. However, before defendant was sentenced (and actually the day before the plea was
entered), Proposition 47 passed, rendering the drug possession offense a misdemeanor. (Id. at pp.
803–804.) The sentencing court decided to amend the charge of a felony violation of section
1320(b) to a misdemeanor violation of section 1320(a) for failure to appear on a misdemeanor
charge. (Id. at p. 804.) The People appealed and the appellate court held the trial court’s action was
unauthorized. The appellate court adopted some of the same reasoning as the Perez court and held
that Proposition 47 did not have “a collateral retroactive effect such that the pending felony drug
possession charge at the time of the breach of promise of failure to appear in August 2014 became a
misdemeanor as a matter of law[.]” (Eandi at p. 805.) The Eandi court stated “At the time of
defendant's failure to appear in August 2014, there was a felony charge pending against defendant
for which she had promised to appear. The initiative did not purport to exercise a power to go back
in time and alter the felony status of every affected offense in every context. It merely offered the
possibility of a reduction in current punishment for a conviction or a redesignation of the status of
completed punishment for a conviction on a petition for a recall of sentence.” (Id. at pp. 805-806;
see also People v. Abdallah 2016 WL 1581899, *12 [stating the language in section 1320(b)
defining felony failure to appear as failing to appear after having been “charged with or convicted” of
the commission of a felony “makes clear that whether a defendant’s felony conviction is ultimately
downgraded under Proposition 47 does not affect the applicability of these statutes”].)
The case of Eandi, however, was taken up for review by the California Supreme Court (docket #
S229305) on the same issue as that in Perez. However, the California Supreme Court ordered
briefing deferred pending decision in People v. Buycks (2015) 241 Cal.App.4th 519 [rev. gtd, dkt #
S231765], which presented a somewhat different issue: “Was defendant eligible for resentencing on
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the penalty enhancement for committing a new felony while released on bail on a drug offense even
though the superior court had reclassified the conviction for the drug offense as a misdemeanor
under the provisions of Proposition 47?”
*Editor’s note: Even though the Eandi appellate court held the reduction of the failure to appear
conviction pursuant to Proposition 47 was improper, when it remanded the case to the superior court, it
left the trial court the option of reducing the section 1320(b) conviction to a misdemeanor pursuant to
other statutory authority (e.g., Penal Code section 17(b)). (Id. at pp. 804, 806.)
12. Drug Offender Registration: If a defendant obtains a reduction
of a felony drug offense to a misdemeanor drug offense, is the
defendant still required to register as a drug offender pursuant
to Health and Safety Code section 11590?
Health and Safety Code section 11590(a) requires defendants convicted of various drug offenses,
including the drug offenses impacted by Proposition 47 (i.e., Health and Safety Code section 11350,
11357, and 11377) to register as drug offenders.
However, pursuant to subdivision (c) of section 11590, the requirement of registration “does not
apply to a conviction of a misdemeanor under Section 11357, 11360, or 11377.” (Health & Saf.
Code, § 11590(c), emphasis added by IPG.)
In People v. Pinon (2015) 238 Cal.App.4th 1232 [rev. gtd, dkt # S229632], the appellate court
agreed with both parties that once a conviction for violating Health and Safety Code section 11377
was reduced to a misdemeanor, it was no longer necessary for the defendant to register as a sex
offender. This conclusion flowed from the fact that Penal Code section 1170.18(k) provides that
“[a]ny felony conviction that is recalled and resentenced under subdivision (b) or designated as a
misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes.” (Id. at p.
1240.) However, the case of Pinon was also taken up by the California Supreme Court (see People
v. Pinon, dkt # S229632) and deferred “pending consideration and disposition of a related issue in”
People v. Morales (2015) 238 Cal.App.4th 42 [rev. gtd, dkt #S228030].
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13. Felony Fines: If a defendant obtains a reduction of a felony
offense to a misdemeanor offense, is the defendant entitled to a
reduction in the fines imposed?
A.
Restitution Fines
There is a difference in the minimum amount of restitution fine that can be imposed for a
misdemeanor offense as opposed to a felony offense. (See Pen. Code, § 1202.4(b)(1) [“If the person
is convicted of a felony, the fine shall not be less than two hundred forty dollars ($240) starting on
January 1, 2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three hundred
dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars ($10,000). If the
person is convicted of a misdemeanor, the fine shall not be less than one hundred twenty dollars
($120) starting on January 1, 2012, one hundred forty dollars ($140) starting on January 1, 2013,
and one hundred fifty dollars ($150) starting on January 1, 2014, and not more than one thousand
dollars ($1,000).”].)
If a defendant is resentenced as a misdemeanant, is the defendant entitled to a reconsideration of the
fine imposed and does it make a difference if the fine imposed on the felony conviction exceeded
$1,000?
No published decision has directly addressed the question. In People v. Morales (2015) 238
Cal.App.4th 42 [rev. gtd, dkt # S228030] the issue was raised but ducked because the fine imposed
on the felony offense did not exceed $1,000 so the fines could not be considered part of an
unauthorized sentence even for a misdemeanor and since the defendant did not object in the
sentencing court, the issue was forfeited. The Morales case was taken up for review by the
California Supreme Court on a different issue. (See People v. Morales, docket # S228030; see
also People v. Armogeda (2015) 240 Cal.App.4th 1039 [rev. gtd, dkt # S230374] [addressing
restitution fine issue in same way as in Morales but case taken up by the California Supreme Court
and deferred “pending consideration and disposition of a related issue in” Morales]; People v.
Pinon (2015) 238 Cal.App.4th 1232 [rev. gtd, dkt # S229632] [declining to decide same issue on
same ground as Morales and taken up by the California Supreme Court but deferred “pending
consideration and disposition of a related issue in” Morales].)
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In Alejandro N. v. Superior Court of San Diego County (2015) 238 Cal.App.4th 1209, the
minor contended the $50 restitution fine ordered by the court pursuant to Welfare and Institutions
Code section 730.6 (which requires that the court impose a restitution fine between $100 and
$1,000 if the juvenile’s offense is a felony, or a restitution fine of not more than $100 if the juvenile’s
offense is a misdemeanor) at the time of his felony adjudication should be reduced to a misdemeanor
level amount. The appellate court denied the minor’s request because the $50 fine was within the
misdemeanor level prescribed by statute, and the minor presented no argument to show an abuse of
discretion by the trial court concerning this matter. (Id. at pp. 1229-1230.)
B. The Felony Parole/PRCS/Mandatory Supervision Restitution
Fine
Penal Code section 1202.45 requires the imposition of a restitution fine in the same amount as that
imposed under Penal Code section 1202.4(b) if a defendant is convicted of a crime and his sentence
includes a period of parole, postrelease community supervision (PRCS) under Penal Code section
3451, or mandatory supervision under Penal Code section 1170(h)(5)(B). (Pen. Code, § 1202.45.)
If a defendant is resentenced as a misdemeanant and placed on “misdemeanor” parole pursuant to
Penal Code section 1170.18, is the defendant still subject to this fine and, if so, must the amount of
the fine be reduced if it exceeds the maximum amount that can be imposed on a misdemeanant
under Penal Code section 1202.4(b)?
No published decision has addressed the question. In People v. Pinon (2015) 238 Cal.App.4th
1232 [rev. gtd, dkt # S229632], the defendant contended he was entitled to a reduction in his felony
parole revocation fine (Pen. Code, § 1202.45, subd. (b)) “to the applicable misdemeanor fines.” (Id.
at p. 1240.) Without mentioning whether such a fine applied at all to a defendant whose felony
conviction was reduced to a misdemeanor under Proposition 47, the court held the failure to object
to the fine forfeited defendant’s right to complain about imposition of the fine on appeal – at least
where the misdemeanor fine imposed did not exceed the maximum fine that could be imposed for a
misdemeanor. (Ibid.) However, Pinon was taken up by the California Supreme Court and further
action was deferred “pending consideration and disposition of a related issue in” People v.
Morales (2015) 238 Cal.App.4th 42 [rev. gtd, dkt # S228030]; see also People v. Armogeda
(2015) 240 Cal.App.4th 1039 [rev. gtd, dkt # S230374] [reiterating holding in Morales parole
revocation restitution fines – but also taken up by the California Supreme Court and deferred
“pending consideration and disposition of a related issue in” Morales].)
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14. DNA Sample: Is a defendant whose felony conviction is reduced
to a misdemeanor pursuant to section 1170.18 entitled to have
his DNA sample expunged from the DNA database?
Penal Code sections 296 and 296.1 authorize the collection of a DNA sample under a variety of
circumstances, including when a person incurs a felony conviction or a felony juvenile adjudication.
Alejandro N. v. Superior Court of San Diego County (2015) 238 Cal.App.4th 1209, 12261227.) Neither section authorizes the collection of DNA based solely on the commission of a
misdemeanor. (Ibid citing to Pen. Code, §§ 296, 296.1.)
In the case of Alejandro N. v. Superior Court of San Diego County (2015) 238 Cal.App.4th
1209, the court held that because “the voters chose to extend the benefits of Proposition 47 on a
broad retroactive basis to persons convicted of felonies before the Act’s effective date—allowing them
to petition to reclassify their offenses and reduce their sentences,” they “likewise intended to provide
retroactive relief with regard to retention of already-secured DNA samples.” (Id. at p. 1228.) “Based
on the broad mandate set forth in section 1170.18, subdivision (k) to treat reclassified offenses as
misdemeanors for all purposes except for firearm restrictions, as well as the extension of an
expansive retroactive remedy under section 1170.18,” the Alejandro N. court concluded a
defendant was entitled to have his DNA sample removed from the state database. (Ibid.)
The Alejandro N. court rejected the argument that because reclassification of a felony to a
misdemeanor is not among the specific grounds listed in the DNA expungement statute (Penal Code
section 299), a defendant (or juvenile) would not be entitled to DNA expungement. The Alejandro
N. court indicated that even though subdivision (b) of does not specify reduction of a felony to a
misdemeanor as a specific basis for expungement, subdivision (a) generically provides for DNA
expungement when a person “has no past or present offense or pending charge which qualifies that
person for inclusion within” the DNA databank. (Id. at pp. 1227-1128.)
The Alejandro N. court also rejected the argument because a felony that has been reduced to a
misdemeanor pursuant to Penal Code section 17(b) does not provide a basis for expungement,
neither should reduction of a felony to a misdemeanor pursuant to Penal Code section 1170.18. In
rejecting this argument, the Alejandro N. court stated that there is a specific statutory provision
included in Penal Code section 299 that expressly states “a defendant whose sentence is reduced to a
misdemeanor under section 17, subdivision (b), must provide DNA samples.” (Id. at p. 1229, citing
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to Pen. Code, § 299(f).) Whereas, no such express provision precludes expungement based on a
reduction of a felony to a misdemeanor pursuant to Penal Code section 1170.18. (Id. at p. 1229.)
However, , the legislature passed a bill (A.B. 1492) which went into effect as of January 1, 2016 and
which changed subdivision (f) of Penal Code section 299 in a way that would override the ruling in
Alejandro N.. The new version of section 299(f) now states: “Notwithstanding any other law,
including Sections 17, 1170.18, 1203.4, and 1203.4a, a judge is not authorized to relieve a person of
the separate administrative duty to provide specimens, samples, or print impressions required by
this chapter if a person has been found guilty or was adjudicated a ward of the court by a trier of fact
of a qualifying offense as defined in subdivision (a) of Section 296, or was found not guilty by reason
of insanity or pleads no contest to a qualifying offense as defined in subdivision (a) of Section 296.”
(Emphasis added by IPG.)
*Editor’s note: The legislature actually passed two versions of Penal Code section 299. One which
becomes operative if the California Supreme Court upholds the California Court of Appeal decision in
People v. Buza (2014) 231 Cal.App.4th 1446 in regard to the provisions of Section 299 of the Penal Code
and one of which remains operative if the California Supreme Court does not uphold the decision in Buza.
(See Pen. Code, § 299(g) –in both versions.) Both versions however have a subdivision (f) that effectively
overrules Alejandro N. and requires the collection of samples notwithstanding the fact that defendant
has a felony that has been resentenced to or redesignated as a misdemeanor pursuant to section 1170.18.
(See Pen. Code, § 299(f).)
Expect a challenge by the defense to this new law on the grounds the amendment is inconsistent
with and does not further the intent of Proposition 47. (See Proposition 47, section 15 [“This act
shall be broadly construed to accomplish its purposes. The provisions of this measure may be
amended by a two-thirds vote of the members of each house of the Legislature and signed by the
Governor so long as the amendments are consistent with and further the intent of this act.”].)
15. Impeachment: What is the impact of a Proposition 47 reduction
of a felony to a misdemeanor on use of the conviction for
impeachment purposes?
No case has yet specifically addressed the question of whether a conviction that has been reduced to
a misdemeanor pursuant to section 1170.18 may be used for impeachment purposes as a felony
conviction under Evidence Code section 788. However, by analogy to how felony convictions that
have been reduced to misdemeanors pursuant to Penal Code section 17 are treated when it comes to
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their use for impeachment purposes, it is likely that the conviction for a felony reduced to a
misdemeanor will no longer qualify as a felony conviction for purposes of under section 788. This is
because a reduction of a felony conviction to a misdemeanor pursuant to section 17 precludes use of
the “conviction” for impeachment purposes (see People v. Martinez (1998) 62 Cal.App.4th 1454,
1463 [indicating once crime reduced to misdemeanor under section 17, it no longer qualifies as a
felony for impeachment purposes]); and courts interpreting how a felony conviction may be used
once it has been reduced to a misdemeanor under section 1170.18 often look for guidance as to the
impact on a felony conviction of a reduction to misdemeanor under section 17 (see People v.
Tidwell 2016 WL 1354717, at *4 [referencing case discussing impact of reduction of conviction to
misdemeanor pursuant to section 17 on availability of conviction for impeachment purposes in
finding section 1203.4 relief does not preclude section 1170.18 relief; and suggesting section 1170.18
relief precludes use of conviction for evidentiary purposes even though section 1203.4 relief does
not]; see also this IPG memo, section VI-5-A at p. 194.)
That being said, there is no reason to believe that the underlying conduct would not still be available
for impeachment purposes pursuant to People v. Wheeler (1992) 4 Cal.4th 284, 292 [finding
Proposition 8, the “Truth in Evidence” amendment to the California Constitution (Cal. Const., art. I,
§ 28(d)) abrogated the rule that felony convictions are the only form of conduct evidence admissible
to impeach the credibility of a witness]. And since there is still a conviction (albeit a misdemeanor
conviction), prosecutors can use Evidence Code section 452.5 to prove up the underlying conduct by
introducing the record of conviction itself. (See People v. Cadogan (2009) 173 Cal.App.4th
1502.)
16. May a defendant whose petition or application for resentencing
or redesignation been denied refile the petition?
At least one court of appeal has indicated defendants may refile petitions for resentencing after
upholding the denial of a petition by the trial – at least where the failure of the defendant to meet the
eligibility requirements could be attributed to unresolved or ambiguous language in Proposition 47.
(See People v. Perkins (2016) 244 Cal.App.4th 129, 139-142 [allowing refiling of petition for
resentencing where trial court ruled defendant failed to meet burden of showing eligibility but
defendant may have been “misled” about the necessary requirements because the “ground rules”
were unsettled as to one count and the failure as to another count was due to an error in the courtsupplied “form” filed out by defendant].)
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17.
Appeal: If a sentencing grants or denies a petition or application
to resentence or redesignate a felony conviction to a
misdemeanor, is the proper place to file an appeal the appellate
division of the superior court (which handles misdemeanor
appeals) or the Court of Appeal (which handles felony appeals)?
In People v. Rivera (2015) 233 Cal.App.4th 1085, the defendant sought to appeal a resentencing
that occurred after the defendant’s felony conviction was reduced to a misdemeanor. The appellate
court had to address whether the Court of Appeal has “jurisdiction to hear an appeal after
resentencing pursuant to Proposition 47, or whether such an appeal is properly transferred to the
appellate division of the superior court.” (Id. at p. 1091.) The issue arose because Courts of Appeal
have jurisdiction over appealable orders in felony cases and Superior Court Appellate Divisions have
jurisdiction over appealable orders misdemeanor cases. (Id. at p. 1093.)
The Rivera court observed that the language in section 1170.18(k) stating “Any felony conviction
that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under
subdivision (g) shall be considered a misdemeanor for all purposes, . . .” was similar to the language
of Penal Code section 17(b) which provides that when a felony conviction is reduced to a
misdemeanor under various designated circumstances, “it is a misdemeanor for all purposes[.]” (Id.
at p. 1094.) Not surprisingly, the Rivera court looked to cases interpreting the relevant provision of
section 17(b) to help them decide how to interpret the language in section 1170.18(k). The Rivera
court found that the California Supreme Court, in construing this language from section 17(b), had
repeatedly held that a once a felony is reduced to a misdemeanor it is a misdemeanor from that point
on but the reduction does not apply retroactively. (Rivera at pp. 1094-1095, citing to People v.
Feyrer (2010) 48 Cal.4th 426, 438-439 and People v. Banks (1959) 53 Cal.2d 370, 381–382; see
also People v. Park (2013) 56 Cal.4th 782, 787 [applying rule of Feyrer and Banks to find a
defendant who was charged with committing a new serious felony would be subject to a five-year
enhancement under Penal Code section 667(a) for having committed a prior serious felony – even if
that prior serious felony was reduced to a misdemeanor before sentence on the new offense was
imposed – so long as the new crime was committed before the prior serious felony was reduced to a
misdemeanor].) The Rivera court then, applied the general rule of statutory construction (i.e., that
when legislation has been judicially construed and a subsequent statute on a similar subject uses
identical or substantially similar language, the usual presumption is that the Legislature intended
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the same construction, unless a contrary intent clearly appears) to presume the voters intended that
the “misdemeanor for all purposes” language in section 1170.18(k) be given the same interpretation
as it is in the context of Penal Code section 17(b).
Accordingly, the Rivera court found a court’s later declaration that the offense was a misdemeanor
under Proposition 47 did not retroactively convert the case from a felony case to a misdemeanor case
for the purpose of appellate jurisdiction. (Id. at pp. 1100-1101; accord People v. Lynall (2015)
233 Cal.App.4th 1102, 1111; see also People v. Williams (2016) 245 Cal.App.4th 458, 469-469
[rev. filed].) “[I]f a defendant is charged with at least one felony in an information, an indictment, or
in a complaint that has been certified to the superior court under section 859a . . ., it is a felony case
and appellate jurisdiction properly lies with [the Court of Appeal]. (Id. at p. 1089; see also People
v. Lynall (2015) 233 Cal.App.4th 1102, 1110.)
18. People’s Appeal: Can the People appeal the granting of a
petition or application to resentence or re-designate a felony?
The People may appeal the granting of a section 1170.18 petition for resentencing pursuant to Penal
Code section 1238 “which provides the People may appeal from a postjudgment order affecting its
substantial rights and from an unauthorized sentence. (People v. Brown (2016) 244 Cal.App.4th
1170, 1176, fn. 2 [rev. filed] [citing to Pen. Code, § 1238, subd. (a)(5), (10)].)
19. Does a trial court have jurisdiction to hear defendant’s request
to reduce a felony conviction to a misdemeanor while the
defendant is presently appealing his felony conviction?
In People v. Scarbrough (2015) 240 Cal.App.4th 916, the court held that once a defendant files
an appeal, the trial court no longer retains jurisdiction to entertain a petition for recall and
resentencing of convictions pursuant to Penal Code section 47: “Neither the language nor intent of
section 1170.18 or Proposition 47 . . . creates an exception to the general rule that a trial court may
not issue an order affecting a judgment while an appeal is pending.” (Id. at p. 128.) Thus, the
Scarbrough court held a trial court order recalling and resentencing a defendant while an appeal
of the case was pending was void. (Ibid.)
This does not mean, however, an appellate court may not choose to stay a pending appeal and issue a
limited interim remand to the trial court for purposes of conducting a hearing on the petition for
recall and resentencing. (Id. at p. 930, fn. 5 citing to People v. Awad (2015) 238 Cal.App.4th 215.)
227
In People v. Awad (2015) 238 Cal.App.4th 215, the defendant was convicted and given a felony
sentence for violating the forgery statute. While defendant appealed his felony conviction, he also
tried to “take advantage of Proposition 47’s postconviction procedure by petitioning the trial court to
reduce the felony sentence for one of his forgery counts to a misdemeanor. The trial court declined
to do so, on the ground it lacked jurisdiction to recall the sentence while appellant’s case was
pending on appeal.” (Id. at p. 218.) The defendant then appealed the trial court’s refusal to hear his
petition. (Id. at p. 219.)
The Awad appellate court was concerned that defendants who are appealing their conviction are
put to a Hobson’s choice. “On the one hand, they can wait to seek Proposition 47 relief until they
complete their appeals from the underlying judgment of conviction. But by then, it may be too late
to gain any benefit from a sentencing reduction because they already will have served the time in
question. On the other hand, they can give up any pending appeal in order to obtain speedy
Proposition 47 relief from the trial court.” (Id. at p. 218.) To avoid this dilemma, the Court of
Appeal created an avenue by which a trial court could obtain jurisdiction “for the sole and express
purpose of determining, within a specified time frame, a Proposition 47 petition to recall a sentence.”
(Ibid.) Specifically, the Court of Appeal granted a discretionary limited remand “pursuant to Penal
Code section 12601 to effectuate the resentencing provisions in Proposition 47 in a timely manner”
and stayed “the pending appeal for a short period of time to allow the trial court to conduct a
Proposition 47 postconviction hearing.” (Ibid.) In doing so, the appellate court did not divest itself
of ongoing jurisdiction over the appeal and held the rules regarding remittitur (Pen. Code, § 1265(a))
did not apply “to this nondispositive interlocutory order.” (Id. at pp. 223-224; cf., People v. Diaz
(2015) 238 Cal.App.4th 1323, 1338 [declining to stay pending appeal for defendant to seek a
reduction of felony prior conviction in lower court - albeit where motion for reduction would have to
be filed in different superior court than superior court from which appeal arose].)
BONUS QUESTION: Has a defendant who has been convicted of a
serious and/or violent felony offense” and sentenced to a life term as
a result of an enhancement or alternative sentencing scheme been
convicted of a disqualifying superstrike?
Proposition 47 excludes from its benefits persons who have been convicted an offense listed in Penal
Code § 667(e)(2)(C)(iv). One of the offenses listed in clause (iv) is: “(VIII) Any serious and/or
violent felony offense punishable in California by life imprisonment or death.”
228
In deciding whether an offense is punishable by “life imprisonment,” the question arises whether
that determination is based on the maximum sentence for the offense alone or includes a life
sentence based on an enhancement or alternative sentencing scheme such as Three Strikes.
Defendants naturally argue that section 667(e)(2)(c)(iv)(VII) be interpreted in a way that limits its
scope to offenses that themselves are punishable by life imprisonment. The argument is often
premised on the case of People v. Turner (2005) 134 Cal. App. 4th 1591, a case in which the court
had to determine what the statute of limitations was for first degree robbery where the defendant
who committed the robbery was charged with having two prior strikes. If the statute of limitations
was based on the robbery alone, the statute of limitations would only be three years pursuant to
Penal Code section 801 [“prosecution for an offense punishable by imprisonment in the state prison
shall be commenced within three years after the commission of the offense”].) On the other hand, if
the statute of limitations was based on the robbery plus the strike priors, there was no limitation at
all pursuant to Penal Code section 799 [prosecution for “an offense punishable by death or
imprisonment in the state prison for life ... may be commenced at any time.”]. To determine the
appropriate statute of limitations, the court had to interpret Penal Code section 805(a) which
provides: “An offense is deemed punishable by the maximum punishment prescribed by statute for
the offense, regardless of the punishment actually sought or imposed. Any enhancement of
punishment prescribed by statute shall be disregarded in determining the maximum punishment
prescribed by statute for an offense.” (Turner at pp. 1595-1596.) The Turner court held the
statute of limitations period must be determined based upon the punishment prescribed for the
commission of the offense itself, without regard to a possible enhanced sentence or indeterminate
life term that may be imposed based on a defendant’s prior convictions, including the alternate
punishment scheme of the Three Strikes Law. (Id. at pp. 1599-1600.) The court based its holding in
part on the fact that the length of limitations period should generally be based on the seriousness of
the crime committed and the life sentence for a three striker is not imposed for the commission of
the new “offense” but for the fact of defendant’s recidivism. (Id. at pp. 1597-1598.)
However, in different contexts, the phrase “punishable . . . by life imprisonment” has been given a
different interpretation – one much more compatible with finding offenses subject to the Three
Strikes law constitute serious or violent felonies that are “punishable in California by life
imprisonment” for purposes of Proposition 47.
229
An extensive analysis of the issue may be found at pp. 12-18 in Couzens & Bigelow, Proposition 47
“The
Safe
Neighborhoods
and
Schools
Act”
(Feb.
2016):
http://www.courts.ca.gov/documents/Prop-47-Information.pdf.
However, Santa Clara County DDA Dana Veazey has also put together a nice brief distinguishing
Turner and explaining why a defendant who has been convicted of a serious or violent felony and
been given a life sentence as a result is not eligible for the benefits of Proposition 47. The thrust of
the brief is that the holding in Turner is tied to the plain language of Penal Code sections 799 and
805, and statutory intent specific to those sections. Thus, it is of limited value. Rather, the brief
argues, the cases that should be looked to in interpreting the phrase should be People v. Williams
(2014) 227 Cal.App.4th 733 and People v. Jones (2009) 47 Cal.4th 566, which respectively had to
interpret the phrase “felony punishable by imprisonment in the state prison for life” for purposes of
Penal Code section 186.22(b)(5) and Penal Code section 186.22(b)(4). In both those cases, the court
concluded that crimes subject to life-sentences pursuant to alternative penalty provisions fall within
the definition of the phrase. (See Williams at pp. 744-745 and Jones at p. 577.) Since the Three
Strikes sentencing scheme is an alternative penalty provision (see Williams at p. 737), violent or
serious felonies for which life sentences have been imposed pursuant to Three Strikes fall within the
definition of “Any serious and/or violent felony offense punishable in California by life
imprisonment or death” as that term is used in Proposition 47. Moreover, the brief points out that
following the Williams and Jones decisions on this point furthers the voter intent of Proposition
47 since it is clear from the ballot material and the provisions of the Act that dangerous and violent
offenders were to be excluded from Proposition 47. (See Voter Information Guide, Argument in
Favor of Proposition 47, p. 38 [Proposition 47, “Keeps Dangerous Criminals Locked Up.”]; Voter
Information Guide, Rebuttal to Argument Against Proposition 47, p. 39 [The Act “includes strict
protections to protect public safety and make sure rapists, murderers, molesters and the most
dangerous criminals cannot benefit”].) DDA Veazey’s brief is available upon request.
NEXT EDITION ETA: MAY 12, 2016 – OUR UPDATED BATSON-WHEELER OUTLINE.
Suggestions for future topics to be covered by the Inquisitive Prosecutor’s Guide, as well as any other comments or criticisms, should be
directed to Jeff Rubin at (408) 792-1065.
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