BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2765


                                                                    Page  1


          Date of Hearing:  April 19, 2016
          Chief Counsel:     Gregory Pagan


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                     2765 (Weber) - As Introduced  February 19, 2016




          SUMMARY:  Removes the three year time limitation in which a  
          person currently convicted of a felony, who would have been  
          convicted of a misdemeanor if Proposition 47 were in effect, may  
           petition the court to have the sentenced reduced in accordance  
          with the Act. 

          EXISTING LAW:  

          1)States that a person currently serving a sentence for  
            conviction of a felony, who would have been guilty of a  
            misdemeanor had Proposition 47 been effect at the time of the  
            offense may petition for a recall of sentence before the trial  
            court that entered the conviction in his or her case to  
            request resentencing, as specified.  (Pen. Code, § 1170.18,  
            subd. (a).)

          2)Provides that upon receiving the petition for recall and  
            resentencing, the court shall determine whether the petitioner  
            meets specified criteria.  If the petitioner satisfies the  
            criteria, the petitioner's felony sentence shall be recalled  
            and the petitioner resentenced to a misdemeanor.  Requires the  
            court to deny resentencing if the petitioner has a prior  
            disqualifying conviction, is required to register as a sex  








                                                                    AB 2765


                                                                    Page  2


            offender under section, or if the court, in its discretion,  
            determines that resentencing the petitioner would pose an  
            unreasonable risk of danger to public safety.  (Pen. Code, §  
            1170.18, subd. (b).)

          3)Authorizes a court to deny a petition for a recall of  
            sentence, if the court in the exercise of its discretion,  
            determines that resentencing the petitioner would pose an  
            unreasonable risk of danger to the public safety.  In  
            exercising its discretion, the court may consider all of the  
            following:

             a)   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;

             b)   The petitioner's disciplinary record and record of  
               rehabilitation while incarcerated; and,

             c)   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.(Pen Code, § 1170.18, subd. (b)(1)-(3).)

          4)Defines "unreasonable risk of danger to the public safety" to  
            mean an unreasonable risk the petitioner will commit a new  
            "violent" felony, as specified.  (Pen. Code, § 1170.18, subd.  
            (b).)


          5)Provides that a person that is currently serving a sentence  
            for conviction of a felony and who is resentenced 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 the  
            resentencing order, releases the person from parole.

          6)Allows a person who has completed his or her sentence for a  
            conviction of a felony who would have been guilty of a  
            misdemeanor under the provisions of Proposition 47 if it would  
            have in effect at the time of the offense, to apply to have  








                                                                    AB 2765


                                                                    Page  3


            the felony conviction designated as a misdemeanor.  (Pen.  
            Code, § 1170.18, subd. (f).)

          7)States that any petition filed for recall and resentencing  
            shall be filed within three years after the effective date of  
            Proposition 47, or at later date upon a showing of good cause.  
             (Pen. Code, § 1170.18, subd. (j).)

          8)Provides that any felony conviction that is recalled and  
            resentenced or designated as a misdemeanor shall be considered  
            a misdemeanor for all purposes, except for the right to own or  
            possess firearms. (Pen. Code, § 1170.18, subd. (k).)

          9)    Provides that when the trial court reduces an offense from  
            a felony to a misdemeanor, it is "a misdemeanor for all  
            purposes."  (Pen. Code, § 17, subd. (b).)

          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "California  
            voters passed the Safe Neighborhoods and Schools Act of 2014,  
            otherwise known as Proposition 47 by over 60% on November 4,  
            2014. Proposition 47 reduced the criminal penalties for five  
            non-violent, low-level property offenses and minor drug  
            possession from felonies to misdemeanors. One provision of the  
            measure allowed an individual who was either currently serving  
            or who had completed his or her sentence for a Prop 47 offense  
            and was not otherwise excluded on account of having other,  
            violent offenses on their record, to have their sentence or  
            record reduced to a misdemeanor. This provision called for  
            this relief to sunset three years from the date the measure  
            passed, on November 4, 2017.

            "Some have estimated that nearly one million Californians are  
            eligible for some type of Prop 47 relief. A felony record,  
            even for a very old offense, serves as a barrier to  
            self-sufficiency for the formerly incarcerated. People are  
            routinely denied employment, housing and other rights because  
            of their felon status. For non-violent offenders, the  
            inability to obtain self-sufficiency contributes to higher  








                                                                    AB 2765


                                                                    Page  4


            rates of recidivism, incarceration and poverty in our  
            communities. 

            "Law enforcement officials and courts that are working  
            diligently to comply with the law have been inundated with  
            petitions from individuals seeking relief. The influx of  
            petitions has forced many agency offices scrambling to comply  
            with the voter mandate while fulfilling other regularly  
            assigned tasks. The imposition of the three-year deadline for  
            filing has created a sense of urgency among eligible  
            petitioners that can be reduced by removing the existing time  
            limit.

            "In passing Proposition 47, voters called for change. To deny  
            an eligible individual a form of relief that could help make  
            them a contributing and self-sufficient member of our  
            community while simultaneously imposing immense pressure on  
            law enforcement to work within the parameters of the law would  
            create inequitable results for many. The proper solution for  
            all involved is to remove the time limit and ensure that law  
            enforcement agencies and petitioners alike have adequate time  
            to complete the process of record changing envisioned by Prop  
            47.

          2)Argument in Support:  According to the Office of the San Diego  
            County District Attorney, "Proposition 47, approved by voters  
            in 2014, require defendants to file a "petition to recall"  
            their felony sentences by November 5, 2017. This seemingly  
            arbitrary deadline now gives eligible defendants a slim window  
            to file for relief. Apparently the proposition drafters simply  
            underestimated the number of defendants who may be eligible to  
            file for relief.
            Now that we have a clearer picture of how many people this  
            deadline may affect, we believe the deadline undermines the  
            intent of the proposition. AB 2765 will alleviate this burden.

            Our office has done an outstanding job of working with the San  
            Diego County Office of the
            Public Defender to process as many petitions as we possible  
            could since Prop 4 7 went into effect two years ago. To date,  
            we have processed over 25,000 Prop 47 petitions. However, we  
            believe there is the potential for up to 150,000 more requests  








                                                                    AB 2765


                                                                    Page  5


            to come in before the November 5, 2017 deadline. This deadline  
            will create an unnecessary burden on eligible defendants to  
            meet that deadline, and a needless "tsunami" of paperwork for  
            prosecutors, public defenders and the court. 

            AB 2677 is a practical, legislative proposal that will correct  
            an unintended consequence of specific language approved by  
            California voters. This minor legislative change certainly  
            aligns with the intent of the proposition, and therefore is in  
            furtherance of the public's will. In this regard, we  
            respectfully urge your AYE VOTE on AB 2765."


          REGISTERED SUPPORT / OPPOSITION:

          Support

          Californians for Safety and Justice (Co-sponsor)
          Conference of California Bar Associations (Co-sponsor)
          Office of the San Diego County District Attorney (Co-sponsor)
          Los Angeles County Board of Supervisors (Co-sponsor)
          California Attorneys for Criminal Justice
          California Calls
          California Police Chiefs Association
          California Public Defenders Association
          Community Coalition 
          Santa Cruz County Board of Supervisors
          Urban Counties of California

          Opposition

          None  

          Analysis Prepared  
          by:              Gregory Pagan / PUB. S. / (916) 319-3744















                                                                    AB 2765


                                                                    Page  6