BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 2369


                                                                    Page  1


          Date of Hearing:  March 29, 2016
          Counsel:               Sandra Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                      2369 (Patterson) - As Amended  March 28, 2016


                       As Proposed to be Amended in Committee


          SUMMARY:  Limits Proposition 47 by making persons convicted of  
          crimes reduced to misdemeanors under the provisions eligible for  
          felony prosecution and sentencing if convicted of those crimes  
          three times within a three-year period.  Specifically, this  
          bill:  

          1)Provides that if a person has been convicted of specified  
            misdemeanor violations, he or she may be punished either by  
            imprisonment for not more than one year in county jail, or by  
            imprisonment pursuant to realignment, if the following  
            conditions are met:

             a)   The person has previously been convicted of those same  
               crimes two or more times; and, 

             b)   Those prior crimes were committed within 36 months of  
               the date of the commission of the current qualifying crime.

          2)Applies this enhanced sentence to all the crimes reduced to  
            misdemeanors under Proposition 47.

          3)Provides that a person who has been convicted of petty theft  








                                                                    AB 2369


                                                                    Page  2


            may be punished either by imprisonment for not more than one  
            year in county jail, or by imprisonment pursuant to  
            realignment, if the following conditions were met:

             a)   The person has been convicted twice or more of any  
               combination of the following crimes:

               i)     Petty theft,

               ii)    Grand theft,

               iii)   Auto theft (as specified), 

               iv)    Burglary, 

               v)     Carjacking, 

               vi)    Robbery, or 

               vii)   Felony receiving stolen property; and, 

             b)   Those prior crimes were committed within 36 months of  
               the date of the commission of the current petty theft  
               charge.

          4)Calls for a special election for voter approval of these  
            provisions.

          EXISTING LAW:  

          1)Divides theft into two degrees, petty theft and grand theft.   
            (Pen. Code,  486.)

          2)Defines grand theft as when the money, labor, or real or  
            personal property taken is of a value exceeding $950 dollars,  
            except as specified.  (Pen. Code,  487.)

          3)Provides that notwithstanding any 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 $950 shall be considered petty theft and shall be  
            punished as a misdemeanor, except for cases in which the  








                                                                    AB 2369


                                                                    Page  3


            defendant has suffered a prior conviction for "super strike,"  
            enumerated in Penal Code section 667, subdivision  
            (e)(2)(C)(iv) or which requires sex offender registration; in  
            which case the offense is punished as a felony by imprisonment  
            in the county jail pursuant to realignment.  (Pen. Code,   
            490.2, subd. (a).)

          4)Provides that receiving stolen property where the value of the  
            property is $950 or less is a misdemeanor, except for cases in  
            which the defendant has suffered a prior conviction for "super  
            strike," enumerated in Penal Code section 667, subdivision  
            (e)(2)(C)(iv) or which requires sex offender registration; in  
            which case the offense is punished as a felony by imprisonment  
            in the county jail pursuant to realignment.  .  (Pen. Code,   
            496, subd. (a).)  

          5)States that a felony is a crime that is punishable with death,  
            imprisonment in the state prison, or in the county jail under  
            the provisions of Penal Code section 1170, subdivision (h).   
            All other crimes are misdemeanors, except those classified as  
            infractions.  (Pen. Code,  17, subd. (a).)

          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "I have heard  
            straight from officers in my community that criminals are  
            walking around with calculators so they do not steal more than  
            $950 worth of goods or others who will steal guns from the  
            same place one at a time instead of all at once so that if  
            they get caught it is a misdemeanor and not a felony.  These  
            actions are a direct result of Prop 47. It is not an  
            exaggeration that crime rates are increasing in California.   
            According to a recent report by the Public Policy Institute of  
            California (PPIC), California Cities dominate the top of the  
            national list for crime rate increases in 2015.  That includes  
            Sacramento topping the national chart for violent crime rate  
            increases, and San Francisco topping the list for property  
            crime rate increases.  It is no surprise to see an increase in  
            crime when policies do not actually help people get treatment  
            in addition to sending messages that the state of California  








                                                                    AB 2369


                                                                    Page  4


            is soft on crime -even on such actions as stealing a gun.

          "In Fresno County, one drug court has shut down and another has  
            seen participation rate cut in half.  Sacramento County has  
            seen a 40% decrease.  Part of the problem is that there is no  
            longer the threat of a felony conviction to encourage  
            individuals to seek help in a program in lieu of a higher  
            penalty.  AB 2369 lets voters rethink the unintended  
            consequences of Prop 47 and allows them to decide whether they  
            think repeat criminals, who violate laws affected by Prop 47  
            three times within a year or steal a gun, should receive an  
            enhanced penalty.  AB 2369 allows an individual's prior  
            criminal actions to be considered when sentencing repeat  
            criminals."

          2)Proposition 47:  On November 4, 2014, California voters  
            approved Proposition 47, also known as the Safe Neighborhoods  
            and Schools Act, which reduced penalties for certain offenders  
            convicted of nonserious and nonviolent property and drug  
            crimes. Proposition 47 also allows inmates serving sentences  
            for crimes affected by the reduced penalties to apply to be  
            resentenced. 

          According to the California Secretary of State's web site, 59.6  
            percent of voters approved Proposition 47. (See  
            <  http://elections.cdn.sos.ca.gov/sov/2014-general/pdf/2014-comp 
            lete-sov.pdf  > [as of Mar. 14, 2015].)  The purpose of the  
            measure was "to maximize alternatives for nonserious,  
            nonviolent crime, and to invest the savings generated from  
            this act into prevention and support programs in K-12 schools,  
            victim services, and mental health and drug treatment."  
            (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), Text of Proposed  
            Laws, p. 70.)  One of the ways the measure created savings was  
            by requiring misdemeanor penalties instead of felonies for  
            nonserious, nonviolent crimes like petty theft and drug  
            possession for personal use, unless the defendant has prior  
            convictions for specified violent crimes. (Ibid.)  

          3)Proposition 47 and Crime Rates:  Recent commentary by the  
            Public Policy Institute of California notes, "Reports of  
            increases in violent crime in some areas have raised concerns,  
            and the significant drawdown in the jail and prison  








                                                                    AB 2369


                                                                    Page  5


            populations-by roughly 17,000 inmates so far-certainly carries  
            the risk of increased crime.  But it would be premature to  
            blame Proposition 47 for the uptick?." 

          "There are good reasons to be cautious about attributing these  
            upticks to Proposition 47. Crime trends fluctuate frequently  
            and widely and it is challenging to pinpoint specific causes.  
            The first year of realignment provides a good example of this.  
            After a long decline, both violent and property crime in  
            California increased in 2012, the year after realignment was  
            implemented, and many blamed the reform. However, as our  
            careful analysis has shown, there is no evidence that  
            realignment led to more violent crime, and the only uptick  
            that can be attributed to the reform is auto theft. Another  
            reason to be cautious is that other states have seen increases  
            in crime this year-the New York Times recently reported that  
            violent crime, as represented by murder rates, has gone up  
            noticeably in a number of US cities. With all this in mind, at  
            this time we urge against drawing any firm conclusions about  
            Proposition 47's impact on crime."   
            (  http://www.ppic.org/main/blog_detail.asp?i=1888  .) 
          
          4)Repeat Offenders:  This bill provides that if a defendant  
            commits any of the crimes, reduced to misdemeanors by  
            Proposition 47 three times in a three-year span, then, on the  
            third conviction, the defendant is eligible for felony  
            prosecution.  

          It should be noted that the bill does not require the prior  
            convictions to have occurred at separate times.  For example,  
            if a defendant is convicted in one day of possession of  
            cocaine and possession of ecstasy for personal use, under the  
            provisions of this bill, this would count as two prior  
            convictions for purposes of limiting the application of  
            Proposition 47.  

          Further, with respect to multiple convictions of drug possession  
            offenses, if a person uses drugs due to an addiction, it  
            should not come as a surprise that the individual is likely to  
            relapse before breaking the addiction cycle.  In so doing, the  
            person may suffer multiple drug possession convictions.  (See  
            e.g., In re Taylor (2003) 105 Cal.App.4th 1394, 1397  








                                                                    AB 2369


                                                                    Page  6


            ["Anticipating that drug abusers often initially falter in  
            their recovery, Proposition 36 gives offenders several chances  
            at probation before permitting a court to impose jail  
            time."].) Under this bill, such a person may not be eligible  
            for the benefits of Proposition 47.  

          As to repeat offenders of property crimes, this bill provides  
            that a person charged with petty theft can be subjected to  
            felony prosecution and sentencing if, within the past three  
            years, that person had any combination of two or more  
            convictions for petty theft, grand theft, auto theft,  
            burglary, carjacking, robbery, or felony receiving stolen  
            property.  

          Before Proposition 47, the sentence-enhancement statute commonly  
            known as "petty theft with a prior" elevated a misdemeanor  
            petty theft to a wobbler (an alternate felony or misdemeanor)  
            if the person has previously committed designated theft or  
            theft-related convictions, and served a custody term for those  
            convictions.  Proposition 47 eliminated the penalties formerly  
            associated with the "petty theft with a prior" statute except  
            for a narrow category of sex offenders, persons with  
            qualifying "super strikes," and those persons convicted of  
            theft from elders or dependent adults.  Those persons are  
            still eligible for felony punishment, including a state prison  
            sentence.  (Pen. Code,  666.)  

          Moreover, if a person has been convicted of carjacking within  
            the past three years, that person is likely still serving a  
            prison sentence because carjacking is punishable by three,  
            five, or nine years in state prison.  (Pen. Code,  215, subd.  
            (a).)  Similarly, first-degree robbery carries a three, six,  
            or nine year prison term; while second degree robbery carries  
            a two, three, or five year prison term.  (Pen. Code,  213.)   
            And first-degree burglary is punishable by a state prison term  
            of two, four, or six years.  (Pen. Code,  461, subd. (a).)   
            So again, as to these crimes, there is a good probability that  
            a person would be unable to commit another theft crime during  
            the three-year window limitation of this bill.

          With regards to auto theft under Vehicle Code section 10851,  
            Proposition 47 did not change the language making the offense  








                                                                    AB 2369


                                                                    Page  7


            punishable as an alternate felony or misdemeanor.   However,  
            there is a split of authority on whether the crime was  
            eligible for reduced punishment, and the Supreme Court is  
            currently considering the issue.  (See People v. Page review  
            granted 1/27/2016 (S230793/E062760), formerly at 241  
            Cal.App.4th 714.)  Nevertheless, it is clear that for repeat  
            offenders of auto theft, those persons are already eligible  
            for felony sentencing of two, three, or four years.  (Pen.  
            Code,  666.5, subd. (a).)  

          In sum, while Proposition 47 did reduce certain theft offenses  
            to misdemeanors, there are still significant penalties for  
            more egregious property crimes.

          5)California Constitutional Limitations on Amending a Voter  
            Initiative:  Because Proposition 47 was a voter initiative,  
            the Legislature may not amend the statute without subsequent  
            voter approval unless the initiative permits such amendment,  
            and then only upon whatever conditions the voters attached to  
            the Legislature's amendatory powers.  (People v. Superior  
            Court (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal.  
            Const., art. II,  10, subd. (c).)  The California  
            Constitution states, "The Legislature may amend or repeal  
            referendum statutes.  It may amend or repeal an initiative  
            statute by another statute that becomes effective only when  
            approved by the electors unless the initiative statute permits  
            amendment or repeal without their approval."  (Cal. Const.,  
            art. II,  10, subd. (c).) Therefore, unless the initiative  
            expressly authorizes the Legislature to amend, only the voters  
            may alter statutes created by initiative.  

          The purpose of California's constitutional limitation on the  
            Legislature's power to amend initiative statutes is to protect  
            the people's initiative powers by precluding the Legislature  
            from undoing what the people have done, without the  
            electorate's consent.  Courts have a duty to jealously guard  
            the people's initiative power and, hence, to apply a liberal  
            construction to this power wherever it is challenged in order  
            that the right to resort to the initiative process is not  
            improperly annulled by a legislative body.  (Proposition 103  
            Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th  
            1473.)








                                                                    AB 2369


                                                                    Page  8



          As to the Legislature's authority to amend the initiative,  
            Proposition 47 states:  "This act shall be broadly construed  
            to accomplish its purposes.  The provisions of this measure  
            may be amended by a twothirds vote of the m6)embers 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. The Legislature may by majority vote amend, add, or  
            repeal provisions to further reduce the penalties for any of  
            the offenses addressed by this act."   
            (<  http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-l 
            aws1.pdf#prop47  >.)

            This bill seeks to increase punishment for repeat offenders  
            for the crimes which were reduced to misdemeanors by  
            Proposition 47.  As such, it is inconsistent with the purpose  
            of Proposition 47.  Therefore, pursuant to the  
            above-referenced provisions of the California Constitution,  
            only the voters may authorize the provisions.  
            
            This bill, if approved by the Legislature, calls for a special  
            election to be held for the voters of California to approve  
            its provisions.
            
          7)Argument in Support:  According to the Peace Officers Research  
            Association of California (PORAC), "PORAC opposed Proposition  
            47 for many reasons, including the fact that a criminal can  
            commit the same crime over and over again with no limits on  
            the repeat offense and the crime always remains a misdemeanor.  
             One of the most egregious aspects of the initiative was the  
            fact that the criminal can repeatedly steal a firearm and  
            regardless of the amount of times they are convicted, it is  
            always deemed a misdemeanor.  Studies have shown that a  
            majority of firearms used to commit crimes are stolen.  This  
            bill can help deter firearm theft in California."

          8)Argument in Opposition:  According to Californians for Safety  
            and Justice, "Proposition 47 maintained California state laws  
            that provide law enforcement authority to arrest and book into  
            custody individuals suspected of committing misdemeanor  
            offenses.  Law enforcement maintains the authority to remove  
            individuals that commit these offenses from the community.   








                                                                    AB 2369


                                                                    Page  9


            Penal code section 836 states, '[a] peace officer may arrest a  
            person in obedience to a warrant, or [when the] officer has  
            probable cause to believe that the person to be arrested has  
            committed a public offense in the officer's presence.'

          "California law also authorizes detention for individuals in  
            misdemeanor cases, including Proposition 47 offenses, when  
            officers have probable cause to believe a suspect has  
            committed a crime and it is in the best interest of public  
            safety to detain.  Additionally, Proposition 47 maintains  
            California law regarding judicial discretion at arraignment.   
            There are also multiple avenues for pursuing targeted  
            deterrence to address chronic offending; such as: authority to  
            aggregate or 'bundle' multiple thefts and pursue felony  
            charges; the power to bring felony charges for shoplifters who  
            use 'force or fear' under Penal Code section 211; use of  
            'criminal conspiracy' statutes to prosecute organized retail  
            theft - even misdemeanor theft - as a felony; and the identify  
            theft statute, which makes any theft involving stolen  
            identity, regardless of value, a felony.

          "In addition to targeted deterrence strategies, criminal justice  
            agencies can, and should, expand best practices in law  
            enforcement diversion, supervised misdemeanor probation,  
            expanded criteria for treatment programs to authorize  
            participation for misdemeanants, and expanded use of  
            collaborative court models, neighborhood problem solving, and  
            a host of other strategies that focus law enforcement  
            resources to protect public safety without wasting state  
            prison beds."     

          9)Related Legislation:  

             a)   AB 1869 (Melendez) calls for a special election to amend  
               Proposition 47 and make the theft of a firearm grand theft  
               in all cases and punishable by a state prison term.  AB  
               1869 is pending hearing in the Assembly Committee on  
               Elections and Redistricting.

             b)   AB 2854 (Cooper) is substantially similar to AB 1869  
               (Melendez), but calls for a special election to be held in  
               June 2016.  AB 2854 is pending referral.








                                                                    AB 2369


                                                                    Page  10



          10)Prior Legislation:  

             a)   AB 150 (Melendez) requires an initiative statute be put  
               before the voters to amend Proposition 47 to make the theft  
               of a firearm, valued at $950 or less, a felony.  AB 150 was  
               held on the Assembly Appropriations Committee suspense  
               file.

             b)   Proposition 47 of the November 2014 general election,  
               the Safe Neighborhoods and Schools Act, reduced the  
               penalties for certain drug and property crimes from  
               felonies to misdemeanors.

          REGISTERED SUPPORT / OPPOSITION:
          
          Support

          American Petroleum and Convenience Store Association
          Association for Los Angeles Deputy Sheriffs
          California Association of Code Enforcement Officers
          California College and University Police Chiefs Association
          California Narcotic Officers Association
          California Police Chiefs Association
          California Retailers Association
          California Sportsman's Lobby
          California State Sheriffs' Association
          Crossroads of the West Gun Shows
          Fresno Chamber of Commerce
          Fresno County Sheriff-Coroner
          Fresno Police and Neighborhood Watch Association
          Kings County Sheriff's Office
          Los Angeles Police Protective League
          Los Angeles Professional Peace Officers Association
          Madera Police Department
          National Shooting Sports Foundation
          Outdoor Sportsmen's Coalition of California
          Peace Officers Research Association of California
          Riverside Sheriffs Association
          Safari Club International
          Tulare County Sheriff's Office









                                                                    AB 2369


                                                                    Page  11


          Opposition
          
          American Civil Liberties Union
          American Friends Service Committee
          Center on Juvenile and Criminal Justice
          California Attorneys for Criminal Justice
          Californians for Safety and Justice
          Californians United for a Responsible Budget
          Community Coalition
          Drug Policy Alliance
          Ella Baker Center for Human Rights
          Friends Committee on Legislation of California
          Justice Now
          Legal Services for Prisoners with Children
          National Council of La Raza
          PICO California
          William Lansdowne, Ret. Chief, San Diego Police Department

          Analysis Prepared  
          by:              Sandy Uribe / PUB. S. / (916) 319-3744