Friday, November 14, 2014

PROP 47 - Do LIFERS get help with PROP 47, voted in 11/4/2014?

PROP 47 - Do  LIFERS get help with PROP 47, voted in 11/4/2014?
Short answer. Not likely.

A Serious and/or Violent felony will disqualify most LIFERS from Prop 47. In addition, the person must not have a prior conviction that would raise a property or drug-possession crime to a straight felony or wobbler.  See *** disqualifying felony list below

On November 4, 2014, California voters passed Proposition 47, which enacts the Safe Neighborhoods and Schools Act. It reduces a number of low-level theft and drug offenses to straight misdemeanors unless the defendant has specified prior convictions.  Proposition 47's effective date is November 5, 2014. (See Cal. Const., art. II, § 10(a).)  The rules for resentencing under Proposition 47 are in Penal Code § 1170.18.

Many Statues have been Amended and Added by Proposition 47.  In addition, under Proposition 47, CDCR prisoners who were convicted and sentenced for felonies under the old version of the laws can ask the superior court that sentenced them to reduce their crimes to misdemeanors and resentence them. Proposition 47 does NOT automatically reduce the property or drug-possession crimes of
people who have already been convicted and sentenced. A person who was previously convicted of a
felony must file a petition asking the court for resentencing to a misdemeanor term. If the person is
still serving the felony sentence, the court can choose to deny the petition and keep the conviction as a
felony if it finds that resentencing would pose an unreasonable risk of danger to public safety. There is a three-year deadline, so the petition should be filed on or before November 4, 2017;

In deciding if the person is dangerous, a court may consider the following factors: the prisoner’s criminal history, including the types of crimes committed, the extent of injury to victims, the length of prior prison terms, and the remoteness of the prior crimes; the prisoner’s disciplinary record and record of rehabilitation while incarcerated; and any other evidence the court decides is relevant to public safety concerns. Does this Sound familiar to Prop 36 review standard?, among others. See Prop 36 comment below.


*** Serious and violent felonies disqualifying LIST below:

Serious and violent felonies disqualify a person from the reduced penalties under Proposition 47. The disqualifying crimes listed in Penal Code § 667(e)(2)(C)(iv) are:

– A "sexually violent offense" per Welf. & Inst. Code § 6600(b). "Sexually violent offense" means the following crimes when committed by force, violence, duress, menace, fear bodily injury, or threat of retaliation: Pen. Code §§ 261, 262, 264.1, 269, 286, 288, 288a, 288.5, or 289 or Pen. Code §§ 207, 209, or 220 committed with the intent to violate §§ 261, 262, 264.1, 286, 288, 288a, or 289
– Oral copulation, sodomy, or sexual penetration with a child under age 14 and more than 10 years younger than the defendant (Pen. Code §§ 286, 288a, 289)
– Lewd or lascivious act with a child under age 14 years (Pen. Code § 288)
– Murder or gross vehicular manslaughter while intoxicated (Pen. Code §§ 187-191.5)
– Solicitation to commit murder (Pen. Code § 653f).
– Assault with a machine gun on peace officer or firefighter (Pen. Code § 245(d)(3))
– Possession of a weapon of mass destruction (Pen. Code § 11418)
– Any serious or violent felony punishable by life imprisonment or death.

 PROP 36 - interesting legal interaction:

Many Statues have been Amended and Added by Proposition 47, see Penal Code § 1170.18. The Statute(s) states that this definition of "danger to public safety" applies "throughout this Code." Thus, third strikers who are seeking resentencing pursuant to the Three Strikes Reform Act of 2012 (Proposition 36) can argue that the Proposition 47 definition of dangerousness applies in their cases. Three-strikers who have already been denied resentencing under Proposition 36 based on findings of dangerousness may be able to get their cases re-heard if the courts applied "some other" definition of dangerousness.

Any inmate considering filing a Court Petition for a re-sentencing Hearing, should hire an attorney experienced with Post-Conviction and Parole expertise since the Court will be looking at the  " infamous" unreasonable risk of danger to public safety.  Attorney Diane T. Letarte has over 13 years experience in  Post Conviction remedies. Inmates, filing a petition on their own, or using a jailhouse lawyer to file a petition, may not provide the best chance of getting the crime or sentence reduced.

 

NOTE: We would like to acknowledge that the Prop. 47  information gathered herein was researched and reprinted in part from Prison Law Office (PLO) AND  the Central California Appellate Program (CCAP).

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