CALIFORNIA’S PROP 47 and RESENTENCING

By

MARY DE LA PEÑA, esq.

Co-author of A Layman’s Guide to Criminal Defense

In California’s November 2014 election, the state voted on an initiative that allowed for certain felonies to become misdemeanors, and the process by which a defendant can request resentencing under the new guidelines. The proposition was called Prop 47, the Safe Neighborhoods and Schools Act.

Admittedly, just trying to trace through the various code sections to determine what exactly the Legislature had in mind is in of itself mind-boggling! Here’s what we’ve come up with as far as who is eligible for resentencing.

The second part of this essay is how and where a defendant files paperwork to be resentenced.

What are the felonies that can be reduced?

The newly enacted Penal Code section 1170.18 requires the courts and district attorneys to resentence a defendant if they have previously suffered a prior drug felony of simple possession of a controlled substance or transportation for personal use which ae 11350, 11357, or 11377 of the Health and Safety Code. In addition certain theft offenses under Penal Code Sections 459.5, 473, 476a, 490.2, 496, or 666 are eligible for reductions to misdemeanors.

However, if a defendant has a previous strike, then they are not eligible for reduction of the felony and resentencing.

Who is not eligible?

The newly enacted law under Penal Code section 1170.18 lists those who have prior felonies that would take them out of the new sentencing structure. There are those felonies as listed under Penal Code section 667, subdivision (e)(2)(C)(iv).

What are the disqualifying strikes?

·         A “sexually violent offense” as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code;

·         A sexual act committed on any child under the age of 14 who is younger than the defendant by 10 years including, oral copulation; sodomy; or sexual penetration.

·         A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.

·         Any homicide offense or attempted homicide including murder and gross negligent manslaughter.

·         Solicitation to commit murder;

·         Assault with a machine gun on a peace officer or firefighter;

·         Any serious and/or violent felony offense punishable in California by life imprisonment or death.

If a defendant has suffered any of these prior convictions, they are not eligible for resentencing.

Unfortunately, too many people imprisoned who are not represented by an attorney and seek to have this modification get their hopes up, only to have them dashed by the actual law. This may lead some defendants to go directly to the appellate court to get around going back through the same district attorney’s office that convicted them in the first place.

THIS DOES NOT WORK!

Prop 47 imbedded within it the proper way to seek resentencing. The Petition for Recall of Sentence must be filed in the trial court of the county of the current conviction. If it is filed in the appellate court, the appeals court will send it back which lengthens the process.

Where does a defendant file the Petition for Resentencing?

The defendant must go back to the court that sentenced him originally to file their petition. It is filed with the court and a copy given (served) on the Office of the District Attorney of that county. The DA will then look at the defendant’s record to see if they “pose an unreasonable risk of reoffending”.

That, of course is the sticky part of the law. If a defendant’s record is extremely long, and if they have not been free from custody for long periods of time, meaning they’ve spent most of their life in jail, then more likely than not, they will not be eligible for resentencing.

If a defendant is found to be a risk for reoffending can they appeal?

The short answer is “yes”. That ruling can be appealed with a writ of habeas corpus. The prison has that form, and can be filed out by the prisoner. But this avenue is only open after the hearing on potential for reoffending.

This whole resentencing issue can be daunting, and if a defendant is not represented by counsel it seems crazy. If you think you are eligible, and if you can, hire a criminal practitioner to help you.

GOOD LUCK!