Existing law, the Safe Neighborhoods and Schools Act, enacted by Proposition 47, as approved by the voters at the November 4, 2014, statewide general election, reduced the penalties for various crimes. Under the provisions of the act, a person who, on November 5, 2014, was serving a sentence for a conviction of a felony or felonies who would have been guilty of a misdemeanor under the act if the act had been in effect at the time of the conviction may petition or apply to have the sentence reduced in accordance with the act. Existing law requires those petitions to be filed on or before November 4, 2022, or at a later date upon showing of good cause.

Proposition 47 authorizes its provisions to be amended by a statute that is consistent with and furthers its intent and that is passed by a ²/₃ vote of each house of the Legislature.

This bill would amend Proposition 47 to remove that deadline and the showing of good cause requirement.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law, the Safe Neighborhoods and Schools Act, enacted by Proposition 47, as approved by the voters at the November 4, 2014, statewide general election, reduced the penalties for various crimes. Under the provisions of the act, a person who, on November 5, 2014, was serving a sentence for a conviction of a felony or felonies who would have been guilty of a misdemeanor under the act if the act had been in effect at the time of the conviction may petition or apply to have the sentence reduced in accordance with the act. Existing law requires those petitions to be filed on or before November 4, 2022, or at a later date upon showing of good cause.

Proposition 47 authorizes its provisions to be amended by a statute that is consistent with and furthers its intent and that is passed by a ²/₃ vote of each house of the Legislature.

This bill would amend Proposition 47 to remove that deadline and the showing of good cause requirement.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law, the Safe Neighborhoods and Schools Act, enacted by Proposition 47, as approved by the voters at the November 4, 2014, statewide general election, reduced the penalties for various crimes. Under the provisions of the act, a person who, on November 5, 2014, was serving a sentence for a conviction of a felony or felonies who would have been guilty of a misdemeanor under the act if the act had been in effect at the time of the conviction may petition or apply to have the sentence reduced in accordance with the act. Existing law requires those petitions to be filed on or before November 4, 2022, or at a later date upon showing of good cause.

Proposition 47 authorizes its provisions to be amended by a statute that is consistent with and furthers its intent and that is passed by a ²/₃ vote of each house of the Legislature.

This bill would amend Proposition 47 to remove that deadline and the showing of good cause requirement.

This bill would declare that it is to take effect immediately as an urgency statute.

SENATE THIRD READING

STR Bill Id:SB 749

Author:(Smallwood-Cuevas)

As Introduced Ver:February 17, 2023

2/3 vote. Urgency

SUMMARY

Removes the deadline to file petitions for relief for persons seeking reduction of prior felony convictions to misdemeanors as authorized by Proposition 47.

Major Provisions

1. Removes the deadline for filing a petition for recall and resentencing for offenses reduced to a misdemeanor by Proposition 47.
2. Contains an urgency clause.

COMMENTS

According to the Author

"SB 749 allows counties to use Proposition 47’s original more streamlined process for qualified individuals to file petitions to seek records reclassification or resentencing that lapsed this past year. A felony conviction can follow an individual and hinder their ability to find gainful employment and stable housing for the rest of their life. Under Proposition 47, more than a million Californians have had the opportunity to reduce old, low-level, non-violent felonies on their record to misdemeanors, allowing them to move on from their past and move on with their lives. Unfortunately, while Prop 47 offered the most efficient and streamlined mechanism for providing this relief, that process is no longer available. County courts are now required to make a finding of ‘good cause,’ which is undefined in code, to approve this kind of records relief, which leaves the state with no consistent way to ensure these rulings are fair."

Arguments in Support

According to Californians for Safety and Justice, the sponsor of this bill, "Prop. 47 changed the penalty for simple drug possession and five petty theft-related crimes from a felony to a misdemeanor. Resulting State correctional savings are redirected to three distinct local investments aimed at reducing crime and increasing community health and wellness through enhancing diversion opportunities, reducing recidivism, promoting improved outcomes for K-12 students, and supporting crime victims. Reclassifying old felonies to misdemeanors opens many doors that otherwise would remain off-limits – doors to jobs, housing, educational and other opportunities to provide family stability, economic security, and self-sufficiency.

"By eliminating the November 2022 sunset date, SB 749 would ensure that all Californians with eligible low level, non-violent felonies on their record could move past the thousands of permanent restrictions placed on the lives of people living with an old felony conviction. We estimate there are still thousands of individuals that have eligible felony records that could benefit from reclassification. Since the deadline has now passed, otherwise eligible individuals do have redress for record changes only upon a showing of good cause, which was not defined in Prop. 47. Each county will now need to determine what constitutes "good cause." The new process will require additional court workload and additional state costs as compared to the petition process that was in place for the last eight years.

"CSJ, one of the original co-authors of Prop. 47, continues to proactively promote the opportunity for records reclassification and continues working to advance the larger principles of diversion and reentry. By permanently extending resentencing and record change opportunities under Prop. 47, SB 749 advances greater efficiency for the already overburdened courts and ensures that eligible individuals will continue to benefit from reclassifying their convictions."

Arguments in Opposition

According to the California State Sheriffs’ Association, "Prop 47 originally gave affected persons three years to seek resentencing on offenses that were reclassified. That three-year window was extended by an additional five years, meaning people had eight years to address qualifying offenses. Additionally, the measure provided that a petition could be brought at any time upon a showing of good cause.

"Offenders have had plenty of time to seek the relief provided by Prop 47, and in fact, are not time limited from continuing to do so assuming they can demonstrate good cause. We should not exacerbate the problems caused by Prop 47 by further limiting consequences for breaking the law."

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. Minor and absorbable costs to the courts to adjudicate petitions for resentencing filed as a result of this measure. According to the Judicial Council, based on the recent decline in similar petitions and the limited number of anticipated petitions that could result from this bill, the bill will have a minimal impact on court workload.
2. Possible cost savings (General Fund) to the California Department of Corrections and Rehabilitation (CDCR) of an unknown amount. It is unknown how many currently incarcerated people who qualify for Proposition 47 resentencing have not yet filed petitions and would be eligible to do so under this bill. To the extent this bill reduces the time in CDCR custody of petitioners whose sentences are reduced by the courts, CDCR would experience cost savings in the long term. CDCR’s savings may be somewhat offset by the cost of parole supervision for people resentenced under this provision, released from prison, and placed on parole supervision by the courts. The actual fiscal impact on CDCR depends on the number of eligible petitioners outstanding, the number of petitions filed, and judicial discretion at resentencing.

VOTES

SENATE FLOOR: 28-11-1

YES: Allen, Archuleta, Ashby, Atkins, Becker, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Alvarado-Gil, Blakespear, Dahle, Grove, Hurtado, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

ABS, ABST OR NV: Rubio

ASM PUBLIC SAFETY: 6-0-2

YES: Jones-Sawyer, Bonta, Bryan, Ortega, Santiago, Zbur

ABS, ABST OR NV: Alanis, Lackey

ASM APPROPRIATIONS: 11-4-1

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Weber, Wilson

NO: Megan Dahle, Dixon, Mathis, Sanchez

ABS, ABST OR NV: Soria

UPDATED

VERSION: February 17, 2023

CONSULTANT: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0001259

Date of Hearing: August 16, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

SBPCA Bill Id:SB 749

Author:(Smallwood-Cuevas) – As Introduced Ver:February 17, 2023

Urgency: Yes State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill removes restrictions on a person’s ability to file a petition in court seeking resentencing for a felony conviction of an offense that has since been reclassified as a misdemeanor.

FISCAL EFFECT:

1. Minor and absorbable costs to the courts to adjudicate petitions for resentencing filed as a result of this measure. According to the Judicial Council, based on the recent decline in similar petitions and the limited number of anticipated petitions that could result from this bill, the bill will have a minimal impact on court workload.
2. Possible cost savings (General Fund) to the California Department of Corrections and Rehabilitation (CDCR) of an unknown amount. It is unknown how many currently incarcerated people who qualify for Proposition 47 resentencing have not yet filed petitions and would be eligible to do so under this bill. To the extent this bill reduces the time in CDCR custody of petitioners whose sentences are reduced by the courts, CDCR would experience cost savings in the long term. CDCR’s savings may be somewhat offset by the cost of parole supervision for people resentenced under this provision, released from prison, and placed on parole supervision by the courts. The actual fiscal impact on CDCR depends on the number of eligible petitioners outstanding, the number of petitions filed, and judicial discretion at resentencing.

COMMENTS:

1. Purpose. According to the author:

SB 749 allows counties to use Proposition 47’s original more streamlined process for qualified individuals to file petitions to seek records reclassification or resentencing that lapsed this past year. A felony conviction can follow an individual and hinder their ability to find gainful employment and stable housing for the rest of their life. Under Proposition 47, more than a million Californians have had the opportunity to reduce old, low-level, non-violent felonies on their record to misdemeanors, allowing them to move on from their past and move on with their lives. Unfortunately, while Prop 47 offered the most efficient and streamlined mechanism for providing this relief, that process is no longer available. County courts are now required to make a finding of ‘good cause,’ which is undefined in code, to approve this kind of records relief, which leaves the state with no consistent way to ensure these rulings are fair.

1. Background. Proposition 47, passed in 2014, reduced certain crimes from felonies to misdemeanors, including drug possession and minor theft offenses. The proposition also allowed, with some exceptions, a person who was serving a sentence for one of the affected felonies to file a petition in court seeking resentencing because their conviction offense was now a misdemeanor. A person who had already served a sentence for an affected felony could file a petition to reduce their conviction to a misdemeanor. Proposition 47 authorized filing of these resentencing and reclassification petitions for three years after the measure was passed. The filing deadline was later extended so a person to file a petition until November 4, 2022, or at a later date if they made a showing of good cause.

This bill eliminates the deadline for filing such a petition for relief and eliminates the requirement that good cause be shown. Under this bill, a person currently serving a sentence for an offense that was reclassified under Proposition 47 may file a petition for resentencing at any time without special justification.

1. Prior Legislation. SB 1178 (Bradford) of the 2021-2022 Legislative Session, was substantially similar to this bill. The bill died on the Assembly floor.

AB 2765 (Weber), Chapter 767, Statutes of 2016, extended the deadline for Proposition 47 petitions for resentencing until November 4, 2022, or later upon showing of good cause.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: July 11, 2023

Counsel: Cheryl Anderson

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 749

Author:(Smallwood-Cuevas) – As Introduced Ver:February 17, 2023

SUMMARY: Removes the deadline to file petitions for relief for persons seeking reduction of prior felony convictions to misdemeanors as authorized by Proposition 47. Specifically, this bill:

1. Removes the deadline for filing a petition for recall and resentencing for offenses reduced to a misdemeanor by Proposition 47.
   
2. Contains an urgency clause.

EXISTING LAW:

1. Authorizes a person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under Proposition 47 had it been in effect at the time of the offense to petition for a recall of sentence before the trial court that entered the judgment of conviction in their case to request resentencing of the offense as a misdemeanor. (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. A person who has one or more prior disqualifying convictions or is required to register as a sex offender is not eligible for relief. (Pen. Code, § 1170.18, subds. (b) & (i).)
   
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:
   
   1. 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;
      
   2. The petitioner’s disciplinary record and record of rehabilitation while incarcerated; and,
      
   3. 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. (c).)
   
5. Provides that a person who is resentenced shall be given credit for time served and shall be subject to parole for one year following completion of their sentence, unless the court, in its discretion, as part of the resentencing order, releases the person from parole. (Pen. Code, § 1170.18, subd. (d).)
   
6. Allows a person who has completed their 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 been in effect at the time of the offense, to apply to have the felony conviction designated as a misdemeanor. (Pen. Code, § 1170.18, subd. (f).)
   
7. Requires a petition for recall and resentencing to be filed before November 4, 2022, or at a later date upon a showing of good cause, except as specified. (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).)
   

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “SB 749 allows counties to use Proposition 47’s original more streamlined process for qualified individuals to file petitions to seek records reclassification or resentencing that lapsed this past year. A felony conviction can follow an individual and hinder their ability to find gainful employment and stable housing for the rest of their life. Under Proposition 47, more than a million Californians have had the opportunity to reduce old, low-level, non-violent felonies on their record to misdemeanors, allowing them to move on from their past and move on with their lives. Unfortunately, while Prop 47 offered the most efficient and streamlined mechanism for providing this relief, that process is no longer available. County courts are now required to make a finding of ‘good cause,’ which is undefined in code, to approve this kind of records relief, which leaves the state with no consistent way to ensure these rulings are fair.”
2. Proposition 47: Proposition 47, also known as the Safe Neighborhoods and Schools Act, was approved by the voters in November 2014. According to the California Secretary of State’s web site, 59.6% of voters approved Proposition 47. (http://elections.cdn.sos.ca.gov/sov/2014-general/pdf/2014-complete-sov.pdf)
   
   Proposition 47 reduced the penalties for certain drug and property crimes and required that the resulting state savings be directed to mental health and substance abuse treatment, truancy and dropout prevention, and victims’ services. Proposition 47 contained specific language reflecting the purpose and intent of the proposition:

“In enacting this act, it is the purpose and intent of the people of the State of California to: . . . (3) Require misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes. . . ” (http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-laws1.pdf#prop47)

“One of Proposition 47’s primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.” (Harris v. Superior Court (2016) 1 Cal.5th 984, 992, citing Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.)

Specifically, the initiative reduced the penalties for possession for personal use of most illegal drugs to misdemeanors. The initiative also directed that theft crimes of $950 or less shall be considered petty theft and be punished as a misdemeanor, with limited exceptions for individuals with specified prior convictions.

1. Time Limit for Filing for Relief under Proposition 47: Proposition 47 also authorized defendants who were serving sentences for felonies that were now misdemeanors under the proposition to petition for resentencing, with prohibitions on relief that apply to persons with specified prior sex crimes for which registration is required and especially egregious serious felonies. Persons who had completed a sentence for such an offense were authorized to petition to reduce the convictions to misdemeanors. Felony convictions resentenced or reclassified as misdemeanors under the proposition are considered misdemeanors for all purposes, except that such relief does not permit the person to own, possess, or have in his or her custody or control any firearm. The initiative required persons seeking relief to file a petition within three years of the effective date of the initiative. The deadline specified in the initiative was November 5, 2017.
   
   In 2016, this filing deadline was amended by AB 2765 (Weber), Chapter 767, Statutes of 2016. AB 2765 provided an extended deadline of November 4, 2022, or at a later date upon showing of good cause.
   
   SB 1178 (Bradford), of the 2021-2022 Legislative Session, would have removed the deadline and contained an urgency clause so that it would have gone into effect before the November 4, 2022 deadline lapsed. On Third Reading on the Assembly Floor, the urgency clause was not adopted and no further action was taken on SB 1178.^[1]

As with SB 1178, this bill would eliminate the deadline to file a petition for sentence reduction of the offenses reclassified as misdemeanors pursuant to Proposition 47. It also contains an urgency clause so that it would go into effect immediately, as the extended deadline has now lapsed.

1. California Constitutional Limitations on Amending a Voter Initiative: Because Proposition 47 was a voter initiative, the Legislature may not amend the statute without subsequent voter approval unless the initiative permits such amendment, and then only upon whatever conditions the voters attached to the Legislature’s amendatory powers. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal. Const., art. II, § 10, subd. (c).) The California Constitution states, “The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.” (Cal. Const., art. II, § 10, subd. (c).) Therefore, unless the initiative expressly authorizes the Legislature to amend, only the voters may alter statutes created by initiative.
   
   The purpose of California’s constitutional limitation on the Legislature’s power to amend initiative statutes is to protect the people’s initiative powers by precluding the Legislature from undoing what the people have done, without the electorate’s consent. Courts have a duty to jealously guard the people’s initiative power and, hence, to apply a liberal construction to this power wherever it is challenged in order that the right to resort to the initiative process is not improperly annulled by a legislative body. (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473.)
   
   As to the Legislature’s authority to amend the initiative, Proposition 47 states: “This act shall be broadly construed to accomplish its purposes. The provisions of this measure may be amended by a two‑thirds vote of the members of each house of the Legislature and signed by the Governor so long as the amendments are consistent with and further the intent of this act. The Legislature may by majority vote amend, add, or repeal provisions to further reduce the penalties for any of the offenses addressed by this act.” (<http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-laws1.pdf#prop47>.)
   
   This bill makes amendments to provisions of law enacted by Proposition 47 that are consistent with and further the intent of this act, specifically allowing people to reduce prior felony convictions to misdemeanors, thus this bill is keyed as requiring a 2/3 vote.
2. Argument in Support: According to Californians for Safety and Justice, the sponsor of this bill, “Prop. 47 changed the penalty for simple drug possession and five petty theft-related crimes from a felony to a misdemeanor. Resulting State correctional savings are redirected to three distinct local investments aimed at reducing crime and increasing community health and wellness through enhancing diversion opportunities, reducing recidivism, promoting improved outcomes for K-12 students, and supporting crime victims. Reclassifying old felonies to misdemeanors opens many doors that otherwise would remain off-limits – doors to jobs, housing, educational and other opportunities to provide family stability, economic security, and self-sufficiency.
   
   “By eliminating the November 2022 sunset date, SB 749 would ensure that all Californians with eligible low level, non-violent felonies on their record could move past the thousands of permanent restrictions placed on the lives of people living with an old felony conviction. We estimate there are still thousands of individuals that have eligible felony records that could benefit from reclassification. Since the deadline has now passed, otherwise eligible individuals do have redress for record changes only upon a showing of good cause, which was not defined in Prop. 47. Each county will now need to determine what constitutes “good cause.” The new process will require additional court workload and additional state costs as compared to the petition process that was in place for the last eight years.
   
   “CSJ, one of the original co-authors of Prop. 47, continues to proactively promote the opportunity for records reclassification and continues working to advance the larger principles of diversion and reentry. By permanently extending resentencing and record change opportunities under Prop. 47, SB 749 advances greater efficiency for the already overburdened courts and ensures that eligible individuals will continue to benefit from reclassifying their convictions.”
   
3. Argument in Opposition: According to the California State Sheriffs’ Association, “Prop 47 originally gave affected persons three years to seek resentencing on offenses that were reclassified. That three-year window was extended by an additional five years, meaning people had eight years to address qualifying offenses. Additionally, the measure provided that a petition could be brought at any time upon a showing of good cause.
   
   “Offenders have had plenty of time to seek the relief provided by Prop 47, and in fact, are not time limited from continuing to do so assuming they can demonstrate good cause. We should not exacerbate the problems caused by Prop 47 by further limiting consequences for breaking the law.”
   
4. Prior Legislation:
   
   1. SB 1178 (Bradford), of the 2021-2022 Legislative Session, was the same as this bill. SB 1178 was returned without further action when the urgency clause failed to be adopted on the Assembly Floor.
      
   2. AB 2765 (Weber), Chapter 767, Statutes of 2016, eliminated the deadline to file petitions for relief for persons seeking reductions of prior felony convictions to misdemeanors under Proposition 47 and authorized the filing of a petition until November 4, 2022, or later upon a showing of good cause.
      
      

REGISTERED SUPPORT / OPPOSITION:

Support

Californians for Safety and Justice (Sponsor)

A New Way of Life Reentry Project

All of Us or None Orange County

Bend the Arc: Jewish Action

California Attorneys for Criminal Justice

California Catholic Conference

California Public Defenders Association (CPDA)

California Religious Action Center

Caravan 4 Justice

Chrysalis

Communities United for Restorative Youth Justice (CURYJ)

Community Coalition

County of Los Angeles Board of Supervisors

Courage California

Ella Baker Center for Human Rights

Faith in Action East Bay

Initiate Justice (UNREG)

Los Angeles County

Los Angeles Regional Reentry Partnership (LARRP)

National Association of Social Workers, California Chapter

Prosecutors Alliance California

Rubicon Programs

Sacramento Youth Advocacy Fellowship Pipeline

San Francisco Public Defender

Seeds for Youth Development

Smart Justice California

Starting Over, INC.

United Core Alliance

Opposition

California State Sheriffs' Association

Analysis Prepared by: Cheryl Anderson / PUB. S. / (916) 319-3744

1. An urgency clause must be passed separately from the bill by a 2/3 vote of each house. (Cal. Const., art. IV, § 8.) ↑

THIRD READING  

Bill No: SB 749

Author: Smallwood-Cuevas (D)

Introduced: 2/17/23

Vote: 27 - Urgency

SENATE PUBLIC SAFETY COMMITTEE: 4-1, 4/11/23

AYES: Wahab, Bradford, Skinner, Wiener

NOES: Ochoa Bogh

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/18/23

AYES: Portantino, Ashby, Bradford, Wahab, Wiener

NOES: Jones, Seyarto

SUBJECT: Criminal procedure: sentencing

SOURCE: Californians for Safety and Justice

DIGEST:

This bill removes the deadline to file petitions for relief for persons seeking reductions of prior felony convictions to misdemeanors as authorized by Proposition 47, approved by California voters on November 5, 2014.

ANALYSIS:

Existing law:

1. Authorizes a person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under Proposition 47 had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her their case to request resentencing of the offense to a misdemeanor. (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 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:
   1. 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;
   2. The petitioner’s disciplinary record and record of rehabilitation while incarcerated; and,
   3. 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 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. Requires a petition for recall and resentencing to be filed before November 4, 2022, or at a later date upon a showing of good cause, except as specified. (Pen. Code, § 1170.18, subd. (j).)

This bill:

1. Removes the deadline for filing a petition for recall and resentencing for offenses reduced to a misdemeanor by Proposition 47.
2. Contains an urgency clause

Comments

According to the author of this bill:

One of the central goals of Prop. 47 was “to maximize alternatives for non-serious, nonviolent crime.” However, low-level felony records, even for very old convictions, create barriers to housing, employment, educational opportunities and governmental benefits. These obstacles deprive individuals of self-sufficiency, perpetuate cycles of incarceration, and disproportionately impact communities of color. We should be removing barriers to the formerly incarcerated reentering society, not erect new ones that create additional work for our overburdened court system. SB 749 would restore the process a person convicted of a qualifying felony who has served their sentence may use to petition the court and have their sentence reduced to a misdemeanor. By eliminating the deadline altogether, all Californians who otherwise qualify for record redress for old felonies will have equitable access to the intended benefits provided by Prop. 47, regardless of their access to resources.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• Judicial Branch: Unknown workload cost pressures to the courts to process and adjudicate resentencing petitions (Trial Court Trust Fund, General Fund).
• CDCR: Potential savings on incarceration costs to the California Department of Corrections and Rehabilitation (General Fund).

SUPPORT: (Verified 5/18/23)

Californians for Safety and Justice (source)

A New Way of Life Reentry Project

All of Us or None Orange County

Bend the Arc

California Attorneys for Criminal Justice

California Catholic Conference

California Public Defenders Association

California Religious Action Center

Caravan for Justice

Chrysalis

Communities United for Restorative Youth Justice

Community Coalition

Courage California

Faith in Action East Bay

Initiate Justice

Jewish Action

Los Angeles Regional Reentry Partnership

National Association of Social Workers – California Chapter

Prosecutors Alliance California

Rubicon Programs

Sacramento Youth Advocacy Fellowship Pipeline

San Francisco Public Defender’s Office

Seeds for Youth Development

Smart Justice California

Starting Over Inc.

United Core Alliance

OPPOSITION: (Verified 5/18/23)

California State Sheriffs’ Association

ARGUMENTS IN SUPPORT: According to Californians for Safety and Justice, the sponsor of this bill:

Prop. 47 changed the penalty for simple drug possession and five petty theft-related crimes from a felony to a misdemeanor. Resulting State correctional savings are redirected to three distinct local investments aimed at reducing crime and increasing community health and wellness through enhancing diversion opportunities, reducing recidivism, promoting improved outcomes for K-12 students, and supporting crime victims. Reclassifying old felonies to misdemeanors opens many doors that otherwise would remain off-limits – doors to jobs, housing, educational and other opportunities to provide family stability, economic security, and self-sufficiency.

By eliminating the November 2022 sunset date, SB 749 would ensure that all Californians with eligible low level, non-violent felonies on their record could move past the thousands of permanent restrictions placed on the lives of people living with an old felony conviction. We estimate there are still thousands of individuals that have eligible felony records that could benefit from reclassification. Since the deadline has now passed, otherwise eligible individuals do have redress for record changes only upon a showing of good cause, which was not defined in Prop. 47. Each county will now need to determine what constitutes “good cause.” The new process will require additional court workload and additional state costs as compared to the petition process that was in place for the last eight years.

ARGUMENTS IN OPPOSITION: According to the California State Sheriffs’ Association:

Prop 47 originally gave affected persons three years to seek resentencing on offenses that were reclassified. That three-year window was extended by an additional five years, meaning people had eight years to address qualifying offenses. Additionally, the measure provided that a petition could be brought at any time upon a showing of good cause.

Offenders have had plenty of time to seek the relief provided by Prop 47, and in fact, are not time limited from continuing to do so assuming they can demonstrate good cause. We should not exacerbate the problems caused by Prop 47 by further limiting consequences for breaking the law.

Prepared by: Stella Choe / PUB. S. /

5/20/23 13:05:43

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SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 749 (Smallwood-Cuevas) - Criminal procedure: sentencing

Bill Summary:

SB 749, an urgency measure, would remove the deadline to file petitions for relief for persons seeking reductions of prior felony convictions to misdemeanors, as authorized by Proposition 47 (2014). The bill would also remove the requirement that a petitioner show good cause for filing after that deadline.

Fiscal Impact:

• Judicial Branch: Unknown workload cost pressures to the courts to process and adjudicate resentencing petitions (Trial Court Trust Fund, General Fund).*
• CDCR: Potential savings on incarceration costs to the California Department of Corrections and Rehabilitation (CDCR) (General Fund).*

* See Staff Comments for additional details.

Background:

Proposition 47 authorized defendants who were serving sentences for felonies that were now misdemeanors under the proposition could petition for resentencing, with prohibitions on relief that apply to persons with specified prior sex crimes for which registration is required and especially egregious serious felonies. Persons who had completed a sentence for such an offense were authorized to petition to reduce the convictions to misdemeanors. Felony convictions resentenced or reclassified as misdemeanors under the proposition are considered misdemeanors for all purposes, except that such relief does not permit the person to own, possess, or have in his or her custody or control any firearm. The initiative required persons seeking relief to file a petition within three years of the effective date of the initiative.

In 2016, this filing deadline was amended by AB 2765 (Weber), Chapter 767, Statutes of 2016. AB 2765 provided an extended deadline of November 4, 2022, or at a later date upon showing of good cause. This bill eliminates the deadline to file a petition for sentence reduction of the offenses reclassified as misdemeanors pursuant to Proposition 47 and the requirement that a person show good cause to file after that deadline. The bill also contains an urgency clause.

Proposed Law:

• Removes the November 4, 2022 deadline for filing a petition for recall and resentencing for offenses reduced to a misdemeanor by Proposition 47 and removes the requirement that a petitioner show good cause for filing after that deadline.
• Contains an urgency clause.

Related Legislation:

• SB 1178 (Bradford, 2022) was identical to this bill. SB 1178 failed passage on the Assembly Floor.
• AB 2765 (Weber) Ch. 767, Stats. of 2016 eliminated the deadline to file petitions for relief for persons seeking reductions of prior felony convictions to misdemeanors under Proposition 47 and authorizes the filing of a petition until November 4, 2022, or later upon a showing of good cause.
• AB 972 (Bonta) of the 2019 – 2020 Legislative Session would have required the Department of Justice (DOJ), on or before July 1, 2020, to review the records in the state summary criminal history information database and identify past felony convictions that are potentially eligible for resentencing as misdemeanors under Proposition 47 (2014). AB 972 was held on the Assembly Appropriations Suspense File.

Staff Comments:

This bill is likely to result in an increase in court workload to review additional petitions that were not filed by the current deadline in November of 2022. It is unclear how many eligible petitioners remain who have not yet filed, but in the first three quarters of 2022, over 4,000 resentencing petitions were filed. It generally costs about $1,000 to operate a courtroom for one hour. Consequently, if the additional petitions take 50 or more hours of court involvement across the State, the cost pressures of this measure would surpass the Suspense File threshold. Although courts are not funded on the basis of workload, increased staff time and resources may create a need for increased funding for courts from the General Fund (GF) to perform existing duties. Numerous trial court operations are funded through the imposition and collection of criminal fines and fees. However, the Legislature has reduced and eliminated criminal fines and fees over the past decade. As a result, the 2023-24 proposed budget anticipates an ongoing annual allocation of $109.3 million from the GF to backfill declining revenue to the Trial Court Trust Fund.

This bill may also result in incarceration savings to CDCR as a result of inmates being resentenced and released from prison. When a person is taken out of custody, CDCR is no longer responsible for paying certain costs such as food or medical care for that person. However, when a CDCR inmate successfully petitions for resentencing under Proposition 47, and the result is that the incarcerated person’s time has been fully served, the court may, but does not have to, place the person on parole for one year. If the person is placed on parole, CDCR will incur supervision costs, potentially offsetting any savings resulting from release. The annual marginal rate to detain a person in prison is approximately $13,000. The per capita cost to supervise a person on parole per year is $13,917. Actual savings from SB 749 would therefore depend on the number of persons who are resentenced and consequently released from prison, and not placed on parole by the court.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 749 Hearing Date: April 11, 2023

Subject: Criminal procedure: sentencing

HISTORY

Source: Californians for Safety and Justice

Prior Legislation: SB 1178 (Bradford), failed Assem. Floor, 2022

AB 972 (Bonta), held Assem. Approps., 2019

AB 2765 (Weber), Ch. 767, Stats. 2016

Support: A New Way of Life Reentry Project; All of Us or None Orange County; Bend the Arc: Jewish Action; California Attorneys for Criminal Justice; California Catholic Conference; California Public Defenders Association; California Religious Action Center; Caravan for Justice; Chrysalis; Communities United for Restorative Youth Justice; Courage California; Faith in Action East Bay; Initiate Justice; Los Angeles Regional Reentry Partnership; National Association of Social Workers – California Chapter; Prosecutors Alliance California; Rubicon Programs; Sacramento Youth Advocacy Fellowship Pipeline; San Francisco Public Defender’s Office; Seeds for Youth Development; Smart Justice California; Starting Over Inc.; United Core Alliance

Opposition: California State Sheriffs Association

PURPOSE

The purpose of this bill is to remove the deadline to file petitions for relief for persons seeking reductions of prior felony convictions to misdemeanors as authorized by Proposition 47 (2014).

Existing law authorizes a person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under Proposition 47 had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her their case to request resentencing of the offense to a misdemeanor. (Pen. Code, § 1170.18, subd. (a).)

Existing law 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 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).)

Existing law 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:

• • 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;
    
  • The petitioner’s disciplinary record and record of rehabilitation while incarcerated; and,
    
  • 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).)
    

Existing law 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).)

Existing law 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.

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

Existing law 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).)

Existing law 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).)

Existing law requires a petition for recall and resentencing to be filed before November 4, 2022, or at a later date upon a showing of good cause, except as specified. (Pen. Code, § 1170.18, subd. (j).)

This bill removes the deadline for filing a petition for recall and resentencing for offenses reduced to a misdemeanor by Proposition 47.

This bill contains an urgency clause.

COMMENTS

1. Need for This Bill

According to the author of this bill:

One of the central goals of Prop. 47 was “to maximize alternatives for non-serious, nonviolent crime.” However, low-level felony records, even for very old convictions, create barriers to housing, employment, educational opportunities and governmental benefits. These obstacles deprive individuals of self-sufficiency, perpetuate cycles of incarceration, and disproportionately impact communities of color. We should be removing barriers to the formerly incarcerated reentering society, not erect new ones that create additional work for our overburdened court system. SB 749 would restore the process a person convicted of a qualifying felony who has served their sentence may use to petition the court and have their sentence reduced to a misdemeanor. By eliminating the deadline altogether, all Californians who otherwise qualify for record redress for old felonies will have equitable access to the intended benefits provided by Prop. 47, regardless of their access to resources.

1. Proposition 47

Proposition 47, approved by voters on November 4, 2014, reduced the penalties for certain drug and property crimes and required that the resulting state savings be directed to mental health and substance abuse treatment, truancy and dropout prevention, and victims’ services. Proposition 47 contained specific language reflecting the purpose and intent of the proposition:

“In enacting this act, it is the purpose and intent of the people of the State of California to: “. . . (3) Require misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes. . . ” (http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-laws1.pdf#prop47)

“One of Proposition 47’s primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.” (Harris v. Superior Court (2016) 1 Cal.5th 984, 992, citing Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.)

Specifically, the initiative reduced the penalties for possession for personal use of most illegal drugs to misdemeanors. The initiative also directed that theft crimes of $950 or less shall be considered petty theft and be punished as a misdemeanor, with limited exceptions for individuals with specified prior convictions.

1. Time Limit for Filing for Relief under Proposition 47

Proposition 47 also authorized defendants who were serving sentences for felonies that were now misdemeanors under the proposition could petition for resentencing, with prohibitions on relief that apply to persons with specified prior sex crimes for which registration is required and especially egregious serious felonies. Persons who had completed a sentence for such an offense were authorized to petition to reduce the convictions to misdemeanors. Felony convictions resentenced or reclassified as misdemeanors under the proposition are considered misdemeanors for all purposes, except that such relief does not permit the person to own, possess, or have in his or her custody or control any firearm. The initiative required persons seeking relief to file a petition within three years of the effective date of the initiative. The deadline specified in the initiative is November 5, 2017.

The Legislative Analyst’s ballot summary explained this portion of the initiative:

This measure allows offenders currently serving felony sentences for the above crimes to apply to have their felony sentences reduced to misdemeanor sentences. In addition, certain offenders who have already completed a sentence for a felony that the measure changes could apply to the court to have their felony conviction changed to a misdemeanor. However, no offender who has committed a specified severe crime could be resentenced or have their conviction changed. In addition, the measure states that a court is not required to resentence an offender currently serving a felony sentence if the court finds it likely that the offender will commit a specified severe crime. Offenders who are resentenced would be required to be on state parole for one year, unless the judge chooses to remove that requirement.

In 2016, this filing deadline was amended by AB 2765 (Weber), Chapter 767, Statutes of 2016. AB 2765 provided an extended deadline of November 4, 2022, or at a later date upon showing of good cause.

This bill eliminates the deadline to file a petition for sentence reduction of the offenses reclassified as misdemeanors pursuant to Proposition 47 and contains an urgency clause so that it may go into effect before the November 4, 2022 deadline lapses.

1. California Constitutional Limitations on Amending a Voter Initiative

Because Proposition 47 was a voter initiative, the Legislature may not amend the statute without subsequent voter approval unless the initiative permits such amendment, and then only upon whatever conditions the voters attached to the Legislature's amendatory powers. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal. Const., art. II, § 10, subd. (c).) The California Constitution states, "The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval." (Cal. Const., art. II, § 10, subd. (c).) Therefore, unless the initiative expressly authorizes the Legislature to amend, only the voters may alter statutes created by initiative.

The purpose of California's constitutional limitation on the Legislature's power to amend initiative statutes is to protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent. Courts have a duty to jealously guard the people's initiative power and, hence, to apply a liberal construction to this power wherever it is challenged in order that the right to resort to the initiative process is not improperly annulled by a legislative body. (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473.)

As to the Legislature's authority to amend the initiative, Proposition 47 states:

This act shall be broadly construed to accomplish its purposes. The provisions of this measure may be amended by a two‑thirds vote of the members of each house of the Legislature and signed by the Governor so long as the amendments are consistent with and further the intent of this act. The Legislature may by majority vote amend, add, or repeal provisions to further reduce the penalties for any of the offenses addressed by this act. (<http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-laws1.pdf#prop47>.)

This bill makes amendments to provisions of law enacted by Proposition 47 that are consistent with and further the intent of this act, specifically allowing people to reduce prior felony convictions to misdemeanors, thus this bill is keyed as requiring a 2/3 vote.

1. Argument in Support

According to Californians for Safety and Justice, the sponsor of this bill:

Prop. 47 changed the penalty for simple drug possession and five petty theft-related crimes from a felony to a misdemeanor. Resulting State correctional savings are redirected to three distinct local investments aimed at reducing crime and increasing community health and wellness through enhancing diversion opportunities, reducing recidivism, promoting improved outcomes for K-12 students, and supporting crime victims. Reclassifying old felonies to misdemeanors opens many doors that otherwise would remain off-limits – doors to jobs, housing, educational and other opportunities to provide family stability, economic security, and self-sufficiency.

By eliminating the November 2022 sunset date, SB 749 would ensure that all Californians with eligible low level, non-violent felonies on their record could move past the thousands of permanent restrictions placed on the lives of people living with an old felony conviction. We estimate there are still thousands of individuals that have eligible felony records that could benefit from reclassification. Since the deadline has now passed, otherwise eligible individuals do have redress for record changes only upon a showing of good cause, which was not defined in Prop. 47. Each county will now need to determine what constitutes “good cause.” The new process will require additional court workload and additional state costs as compared to the petition process that was in place for the last eight years.

1. Argument in Opposition

According to the California State Sheriffs Association:

Prop 47 originally gave affected persons three years to seek resentencing on offenses that were reclassified. That three-year window was extended by an additional five years, meaning people had eight years to address qualifying offenses. Additionally, the measure provided that a petition could be brought at any time upon a showing of good cause.

Offenders have had plenty of time to seek the relief provided by Prop 47, and in fact, are not time limited from continuing to do so assuming they can demonstrate good cause. We should not exacerbate the problems caused by Prop 47 by further limiting consequences for breaking the law.

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