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).

LIFERs Administrative Review (AR) and Petition to Advance (PTA)

Since the In re Vicks (2013) case challenging Marsy's Law, BPH hase gone into a "spin" (see AR & PTA section below) to avoid a possible win (by the Lifers)  in the Federal case Gilman vs Brown (2/28/14) challenging Marsys' law - as applied.

Michael D. Vicks contended that application of the new parole procedures to prisoners who committed their crimes prior to the enactment of Marsy’s Law violates the ex post facto clauses of the federal and state Constitutions. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.)  He challengeg the amendments both on their face and as applied to him.  Unfortunately the CA Supreme Court did not think there was anything wrong with applying this 2008 voted in Marsy's Law to Lifers that had already been sentenced BEFORE this law was enacted.Vicks was lost at the CA SUPREME court....

What does Unconstitutional  "AS APPLIED" mean for LIFERs......it means that if the Board of Parole Hearings (BPH) do not start using the available tools such as the Petition to Advance (PTA)  and the Administrative Power to recall inmate to a Parole Hearing earlier than their 3 to 15 year Denial,  then  Marsys's law may BE Unconstitutional "AS APPLIED" given a longer punishments (incarceration)  to the LIFERS.

......Stay tune for the continuing Marsy's law battle in the Federal Court. Gilman vs Brown (2/28/14)  CIV. S-05-830 LKK/CKD. In summary,  Plaintiffs assert that Propositions 9 (Marsy's Law) and 89  (Governor veto power) have retrospectively increased their punishments, in violation of the Ex Post Facto Clause of the U.S. Constitution.



PTA AND AR - GRANT RATES**:


**Thanks to all the Hard work of LIFE SUPPORT ALLIANCE (LSA, Vanessa and staff) we can provide the Grant rates of these tools. Since July 2012 the BOARDS's legal team now reviews most 3-year denials approximately 12 months after the hearing and may recommend advancing the Hearing earlier then the original denial years. This Administrative Review (ARs) will verify if significant progress is perceived, if yes the LIFER will be notified  (SUA SPONTE - no action on the LIFER's part) that his hearing will be advanced.

BELOW are the GRANT RATES for both ARs and PTAs. Originally (2009) the PTA grant rates were around 2% when Marsys' law was voted in 2008. BPH officials are reporting that 58% of PTAs submitted by Inmates are approved. In turn, of those advanced BPH hearings via the PTA (BPH 1045 form) are granted at the rate of 24% AND via the AR system they are granted at the rate of 29.5%.

58% Grant on the PTA -- A much improved rate from the 2% PTA grant of 2009-2011 or so. The MESSAGE HERE...and rule of thumb - if the inmate is denied at their hearing make sure the inmate (or the Attorney filing the PTA) reviews the reason why the BOARD denied the inmate in the first place and correct all those flaws then apply for the PTA - there will be a 58% s/he will get a new hearing.

DSL or ISL (aka LIFERs) - Elderly Parole Program to Start October 1, 2014

On February 10, 2014, the Three Judge Panel in the Plata/Coleman class action

lawsuit ordered CDCR to finalize and implement a new parole process whereby elderly inmates will be referred to the Board of Parole Hearings (board) to determine suitability for parole.The procedures for the new Elderly Parole Program will affect parole suitability hearings scheduled on or after October 1, 2014

Below is an Excerpt of the BHP Memo that came out earlier in June 2014 on the

ELDERLY PAROLE PROGRAM. The full (BPH memo) can be read at Attorney Diane Letarte's Website. Make sure to hire an Experienced Attorney that understand the Hallmarks of our Elderly population, who can properly present the special consideration along with any Medical issues that are relevant to the Commissioners during deliberation at the Parole Hearing.

Eligibility:
 Inmates who are 60 years or older and who have  been incarcerated for  25 years or  more are  eligible for  the  Elderly Parole Program.  Eligible inmates may be serving an   indeterminate (ISL aka Lifers) or a determinate sentence (DSL).

CRITERIA to be considered at Parole Hearing:

During the administrative review and the petition to advance (PTA) processes, the board will give special consideration  to eligible  inmates advanced age, long-term confinement, and diminished physical condition, if any exist.

 
Marsy's Law (Prop 9) Still applies:
If an eligible inmate is denied parole, the denial length will be set pursuant to Penal Code section 3041.5(b)(4) (“Marsy’s Law”) for 3, 5, 7, 10, or 15 years.

 

Psychological Risk Assessments:

Inmates who are scheduled for a Elderly hearing on or after October 1, 2014,  will receive a new  or revised Psychological risk  assessment , which will  specifically address how the inmate’s  advanced  age,  long-term  confinement, and diminished physical condition, if any,  may  impact the inmate’s  potential  risk  for future violence.

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