Category Archives: prison

Prop 47 Case Law Update

What is Prop 47?

Prop 47 makes certain drug and property offenses under $950 a misdemeanor.

prop 47

Prop 47 Case Law

Prop 47 was passed on November 4, 2014. Since then, courts have ruled that the following charges should also be misdemeanors:

Proposition 47 Does Not Apply to the Following Charges

prop 47

Proposition 47 Applies to the Following Charges:

  • Shoplifting – Penal Code 459 – Shoplifting
  • Forgery – Penal Code 470-476
  • Fraud/Bad Checks of $950 or less – Penal Code 476a
  • Grand Theft of $950 or less – Penal Code 487
  • Petty Theft/Shoplifting of $950 or less – Penal Code 484, 484/666
  • Possession of Methamphetamine – Health & Safety 11377
  • Possession of Controlled Substance – Health & Safety 11350
  • Possession of Concentrated Cannabis – Health and Safety 11357(a)
  • Receiving Stolen Property – Penal Code 496

prop 47

Prop 47 is Retroactive

Proposition 47 applies to cases prior to November 4, 2014. Inmates must file a petition in the county courthouse where they were convicted. The petition forms vary by county and can be accessed here.

criminal defenseContact

(805) 635-7766
RABLAW805@gmail.com

 

SCR 48: Resolution to Reform Felony Murder Rule

SCR 48 – Senate Concurrent Resolution

SCR 48 is a senate concurrent resolution passed on September 22, 2017. It recognized the need for statutory reform to more equitably sentence offenders according to their involvement in the crime.

Although SCR 48 did not make any changes to existing law, it laid the foundation for Senate Bill 1437 – Accomplice Liability for Felony Murder.

Senate Bill 1437 is making its first pass through the California state legislature. After the Committee on Public Safety approved the bill by a vote of 6-1, it was referred to the Senate Appropriations Committee. A meeting before the Appropriations Committee is currently set for May 7, 2018.

scr 48

SCR 48 – Punishment Should Match the Crime

Currently there are 2 laws – felony murder and aiding and abetting – that impose a punishment that is disproportionate to the criminal activity. SCR 48 recognizes that it is fundamentally unfair and in violation of basic principles of individual culpability to punish a person for the unforeseen results of another’s action.

SCR 48 – Overcrowded Prisons are Expensive

According to SCR 48, California continues to house inmates in numbers well beyond its maximum capacity at an average of 130% of capacity. WASCO, for example, is 2,000 inmates over the designed maximum capacity. Incarceration of an inmate in California costs taxpayers $70,836 per year. There are currently approximately 118,000 inmates incarcerated in California.

src 48

Malice

“Malice” is a deliberate unlawful intention to take away the life of another. Malice is required for a conviction for first or second degree murder, except in the case of felony murder.

Felony Murder

Under felony-murder, a defendant does not have to intend to kill anyone, nor commit the homicidal act, to be sentenced to first-degree murder. A defendant can be sentenced to first-degree murder even if the killing was unintentional, accidental, or negligent.

scr 48

First-Degree Felony Murder

A conviction for first-degree murder results in a sentence of 25 years to life.

To be convicted of first-degree felony murder, the prosecutor only needs to prove that the killing was committed in the perpetration or attempt to perpetrate a felony specified in Penal Code Section 189.

Those felonies are arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd act on a child under 14, oral copulation, and rape by instrument.

scr 48

Second-Degree Felony Murder

A conviction for second-degree murder results in a sentence of 15 years to life.

To be convicted of second-degree felony, the prosecutor only needs to prove that the killing was committed in the perpetration or attempt to perpetrate an “inherently dangerous felony.”

Inherently dangerous felonies include but are not limited to discharging a firearm at an inhabited dwelling, manufacturing methamphetamine, maliciously burning a car, and possessing a bomb in a residential area.

criminal defenseContact

(805) 635-7766
RABLAW805@gmail.com

Proposition 57 Parole For Nonviolent Inmates

Proposition 57

Proposition 57, “The Public Safety and Rehabilitation Act of 2016,” allows parole consideration for people convicted of nonviolent felonies after they have completed the full term for their primary offense.

The goal of the law is to stop the revolving door of crime by better preparing inmates to succeed when they re-enter our communities.
proposition 57

Parole Process

All inmates currently serving a conviction for a non-violent offense as defined by the California Penal Code will be able to participate in the parole process. The new parole consideration process began on July 1, 2017.

However, inmates are not automatically granted parole. Parole MAY be granted to inmates who have completed the full term for their primary offense and demonstrated that they should no longer be considered a current threat to public safety.

proposition 57

Additional Credits

“Credits” are how the California Department of Corrections and Rehabilitation tracks the number of days remaining on inmate sentences. Proposition 57 allows inmates to earn additional credits for good behavior and participation in rehabilitative, educational and career training programs.

The previous credit system is based on the crime committed. Under proposition 57, credits will be based on conduct and participation in programs. The CDCR will now award increased credits for Good Conduct and Milestone Completion Programs. CDCR will also begin awarding credits for Rehabilitative Achievement and Educational Merit.

Who Can Receive Credits?

Inmates sentenced to death or life without parole are not eligible to receive credits. All other inmates are eligible.

proposition 57

When Did Credits Start?

  • Good Conduct Credits began on May 1, 2017.
  • Milestone Completion, Rehabilitative Achievement, and Educational Merit Credits began on August 1, 2017.

All credits except can be revoked for disciplinary infractions except Educational Merit Credits.

Changes To Juvenile Justice System

Proposition 57 removed the prosecutor’s authority to decide whether juveniles charged with certain crimes should be tried in juvenile or adult court. That decision will now be made by judges.

criminal defenseContact

(805) 635-7766
RABLAW805@gmail.com

Proposition 47 Early Release From Prison

Proposition 47 – Reducing Charges

Proposition 47 reduces the punishment for certain felony drug and property offense charges under $950 to a misdemeanor. It does not apply to registered sex offenders and people with prior convictions for serious or violent crimes.

Re-sentencing For Inmates

Prop 47 permits re-sentencing for people currently serving a prison sentence, or with prior felony convictions. Charges eligible to be reduced to misdemeanors are listed below.

Proposition 47

Must File A Petition

No one is automatically released from prison under Proposition 47. Instead you must petition the court to reduce your charges and re-sentence you.

Eligible inmates who petition the court are required to be resentenced unless the court finds an unreasonable risk to public safety.

Risk To Public Safety

When determining the risk to public safety, the court may consider the offender’s criminal history, the types of crimes committed and when they occurred, the extent of injury to victims, the length of prior prison commitments, the inmate’s disciplinary and rehabilitation records while incarcerated, and any other relevant evidence.

What Is The Deadline To Petition?

Your petition must be filed with the court before November 4, 2022.

proposition 47

How Do I File A Petition?

Under Prop 47, in order to petition for a reduction of a crime to a misdemeanor, you must first obtain a copy of your criminal record. Next, you must obtain a petition form for reclassification. Most counties have created petition forms that can be found here.

For counties that have not created petition forms, contact the local courthouse and ask which form to use.

Once the petition is complete, send one copy to the District Attorney’s Office in the county where you were convicted. The other copy is sent to the Superior Court in the county where you were convicted.

proposition 47

Proposition 47 Applies To The Following Charges:

  • Shoplifting – Penal Code 459 – Shoplifting
  • Forgery – Penal Code 470-476
  • Fraud/Bad Checks of $950 or less – Penal Code 476a
  • Grand Theft of $950 or less – Penal Code 487
  • Petty Theft/Shoplifting of $950 or less – Penal Code 484, 484/666
  • Possession of Methamphetamine – Health & Safety 11377
  • Possession of Controlled Substance – Health & Safety 11350
  • Possession of Concentrated Cannabis – Health and Safety 11357(a)
  • Receiving Stolen Property – Penal Code 496
  • Embezzlement of $950 or less – Penal Code 503 (People v. Warmington)
  • Joyriding of a vehicle worth $950 or less – Vehicle Code 10851 (People v. Page)
  • Attempting to cash a check worth $950 or less – Penal Code 459.5 (People v. Gonzales)
  • Theft of Account Information of $950 or less – Penal Code 484e(d) (People v. Romanowski)

criminal defenseContact

(805) 635-7766
RABLAW805@gmail.com