BILL ANALYSIS Ó
AB 2765
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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
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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
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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
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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
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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
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