BILL ANALYSIS Ó
AB 2369
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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
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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
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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
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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
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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
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["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
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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.)
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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.
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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.
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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
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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