prop 47 in san diego county frank birchak, deputy public defender march 4, 2015 at adi, inc
TRANSCRIPT
Prop 47 in San Diego County
Frank Birchak, Deputy Public DefenderMarch 4, 2015At ADI, Inc.
Court Process
Pre-sentence cases
DA believes eligible, they re-file charging documents as misdemeanors
DA does not believe eligible, but we do – litigate!• Mostly on the shoplifting cases
Post-sentence cases
Revocation cases
Clients on supervision alleged to have violated on a case eligible for prop 47 relief
DA has been working with us to deal with those quickly, and has even persuaded probation not to seek warrants for violators
Judges for the most part are not sentencing more that the potential misdemeanor sentence for the violations
Fairly successful of expediting 1170.18 relief or getting no more than the misdemeanor punishment
PROGRESS SO FAR
More than 17,000 petitions filed
About 1400 granted
About 400 rejected
Major litigation issues in progress
Applicability to Delinquency
Juvenile Court said 1170.18 does not apply to delinquency because does not say conviction
We have filed a writ and the 4th DCA has requested a response from the government
The juvenile court appears to be using the new maximum term of confinement from prop 47, and released those youth in facilities for those types of offense. The fight seems to be more on the 1170.18 process.
Scope of Shoplifting
Multiple hearings set on whether offenses qualify for 1170.18 relief under shoplifting theory.
DA position is must be entry to commit larceny of merchandise from a retail establishment.
Our position is entry to commit any theft from a commercial establishment.
Shoplifting motions pending
Entry into a pawnshop to sell stolen property
Entry into a bank, using fake check
Entry into a casino
Entry in a library
Entry into a Public Defender Office to steal a fax machine
PC 12022.1
DA seems to agree enhancement should be stayed if enhancement is attached to the case that 1170.18 relief was granted on. They dispute the court’s ability to do anything on a case not granted 1170.18 relief.
The issue is pending in several departments
Won a motion this week in Presiding to stay enhancement on non-prop 47 secondary offense case because of grant of 1170.18 relief on primary offense. DA may appeal.
Parole orders• Client gets relief under 1170.18• new sentence is 180 days• Client has 448 actual days of credit• Client has 448 4019 credits• Court orders year of parole• “[w]here the presentence credits exceed the total state prison
term, the excess credits, commonly known as Sosa credits are deducted from the defendant's parole period.” (People v. Espinoza (2014) 226 Cal.App.4th 635, 638 citing In re Sosa (1980) 102 Cal.App.3d 1002.)
That shouldn’t happen
Pen. Code, § 1170, subd. (a)(3) – says don’t send to parole where credits > custody + parole period
“[w]here the presentence credits exceed the total state prison term, the excess credits, commonly known as Sosa credits are deducted from the defendant's parole period.” (People v. Espinoza (2014) 226 Cal.App.4th 635, 638 citing In re Sosa (1980) 102 Cal.App.3d 1002.)
DA seems to agree
Presiding has rescinded its parole orders in those cases
Still litigating in front of one judge
Parole ordered off 1170(h)
Client has an 1170(h) commitment [no tail], of two years
9 days before term complete 1170.18 granted
Court orders year of parole
1170.18, subd. (e)
“Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence.”
The period of parole is part of the sentence. (People v. London (1988) 206 Cal.App.3d 896, 910 citing Penal Code, §§ 3000 & 1170, subd. (c).)
Dangerousness
Very few sought by DA. Maybe 16 set for evaluation of dangerousness
At least half of those DA has not litigated dangerousness after receiving the prison records
Hearings are still pending
Recognition by Court and DA that it is a very high burden for the DA
PriorsSeveral cases in several departments have motions about prison priors pending. Some positive informal tentative comments by judges.
Working on test cases to seek 1170.18 relief on cases where the offense not eligible, but the prison prior is based on a case reduced under 1170.18. Slower process because have to get the 1170.18 granted on the underlying case first.
Litigated and are appealing loss on PC1203(k)
Failure to Appear
Working on a test case and briefing. Do not believe hearing set on this yet.
Other Questions
Application Plea Bargains
If the sentence has already been imposed, the DA is not arguing that the plea bargains prevent the relief!
Unlike many other Counties
Some weird issues popping up, like potential refiling of cases dismissed related to now prop 47 eligible cases, but nothing filed yet
Prop 47 dangerousness applied to P36
I do not handle the prop 36 cases. My understanding is that we are making the argument on pending cases.
Appeal pending
“The defendant's petition under Penal Code section 1170.18 alleges that petitioner is eligible for relief. The court takes judicial notice that this matter is currently pending before the Court of Appeal. People v. Yearwood (2013) 213 Cal.App.4th 161, in the context of Proposition 36, held that the resentencing process cannot be utilized while a case is on appeal. The court reasoned that the trial court does not have jurisdiction over a cause during the pendency of an appeal and cited People v. Flores (2003) 30 Cal.4th 1059, 1064. Consistent with Yearwood, a petition under Proposition 47 must be filed once this judgment is final and jurisdiction over the cause has been returned to the trial court. Appellant's eligibility for relief under Penal Code section 1170.18 will be determined at that point in time.”
Assistance to Unrepresented Defendants
We will assist anyone who requests it with the petition/application process.
The potential for conflict issues is low, but there is some • the burglary of the PD office discussed above• re-sentencings
Non-specified crimes that are LIO/LRO
Not sure of an example of this where the LIO is not already a misdemeanor.
We have filed on attempts.
We are definitely willing to look at the issue. My gut feeling is a LIO we would file on, but a LRO we would not.
Issues 4th DCA refused to hear by writ
Denial of application on MDO case
Whether library is a commercial establishment
Additional issues appealed
Is VC10851 covered – using Santa Clara and Contra Costa arguments – from a pre-sentencing case, not 1170.18 relief.
Does a PC 1203(k) restriction go away when the case the client was on probation recalled and resentenced under Prop 47
Other issues
• Resentencings where only a few counts eligible• Resentencings on consecutive subordinate cases when • Parole revocations did the client receive notice• Parole revocations what penalties can they imposes• DNA registry• Juror rolls• Gun rights• Expungment already granted
General Concepts
In re Estrada
Analogize to 1170(d) recall and resentence versus 17(b)
Statutory construction and the voter pamphlet
Enacting authority presumed to know existing law – 490a, In re Sosa, etc.
Our current team
Troy Britt, [email protected] Oliver, [email protected] Gaston, [email protected] Birchak, [email protected]
• Email is much better for us than phone calls