FREQUENTLY ASKED QUESTIONS - California

1 1 Note: These materials were prepared by the Judicial Council s criminal justice Services staff and Richard Couzens, Judge of the Superior Court, County of Placer (Ret.), and are for informational purposes only. The responses are not to be construed as legal opinion or advice. Staff will update QUESTIONS and responses on a regular basis. Please check for most recent version. FREQUENTLY ASKED QUESTIONS Updated November 2016 What is the stated purpose of Proposition 47? The stated purpose of the proposition is to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for non-serious, nonviolent crime, and to invest the savings generated from [the proposition] into prevention and support programs in K-12 schools, victim services, and mental health and drug treatment and to ensure that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed.

2 The proposition states that it shall be liberally construed to effectuate its purposes. What is the effective date of Proposition 47? Proposition 47 became effective on November 5, 2014. In short, what does Proposition 47 do? Proposition 47 added and amended various statutory provisions to implement the following three changes to felony sentencing laws: Theft and Drug Possession Offenses: Changes certain theft and drug possession offenses from felonies to misdemeanors, except for persons with certain prior convictions. Resentencing: Authorizes defendants currently serving sentences for felony offenses that would have qualified as misdemeanors under the proposition to petition courts for resentencing under the new misdemeanor provisions.

3 Reclassification: Authorizes defendants who have completed their sentences for felony convictions that would have qualified as misdemeanors under the proposition to apply to reclassify those convictions to misdemeanors. Who is not eligible for the changes under Proposition 47? 2 Persons with one or more prior convictions for offenses specified under Penal Code section 667(e)(2)(C)(iv)1 or for a sex offense that requires registration under section 290(c) are not eligible for the new misdemeanor, resentencing, or reclassification provisions of Proposition 47. Instead, those persons generally remain subject to punishment under traditional sentencing rules.

4 What are the offenses specified under Penal Code section 667(e)(2)(c)(iv) that render someone ineligible for Proposition 47? Section 667(e)(2)(c)(iv) states: The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies: (I) A sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. (II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289.

5 (III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. (IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to , inclusive. (V) Solicitation to commit murder as defined in Section 653f. (VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. (VIII) Any serious or violent felony offense punishable in California by life imprisonment or death.

6 These offenses are sometimes referred to a super strikes. What are the offenses that require registration as a sex offender under Penal Code section 290(c)? Under section 290(c), the following persons are required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or a n attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) and (c) of Section , Section , paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1)

7 Of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section , 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, , , , , 289, or , subdivision (b), (c), or (d) of Section , Section , , , , or , former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section ; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that 1 Unless otherwise indicated, all statutory references are to the Penal Code.

8 3 date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses. Is every person who is required to register as a sex offender ineligible for Proposition 47? Proposition 47 only excludes persons with prior convictions for a sex offense that requires registration under section 290(c), which enumerates several sex offenses that mandate registration upon conviction. This disqualifier appears to be limited to the offenses enumerated in section 290(c) and not to include persons required to register under other statutory provisions that vest courts with discretionary authority to impose sex offender registration under specified circumstances.

9 (See, , Pen. Code, [Authorizing courts to impose registration for any offenses not listed in section 290(c) if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for the purpose of sexual gratification ].) Do the exclusions include out-of-state convictions and juvenile adjudications? It appears so. Proposition 47 excludes persons with a prior conviction for any of the offenses listed in section 667(e)(2)(C)(iv). Section 667(e)(2)(C)(iv) applies if [t]he defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies.

10 The super strikes. (Emphasis added.) The reference to subdivision (d) of this section presumably means section 667(d). Section 667(d) provides that [n]ot withstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a serious and/or violent felony shall be defined as (1) an adult California conviction under sections (c) and (c) [ 667(d)(1)]; (2) an out-of-state conviction for an offense that, if committed in California is punishable by imprisonment in the state prison .. if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of a California serious or violent felony [ 667(d)(2)]; and (3) designated juvenile adjudications [ 667(d)(3)].