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Prop 47 in San Diego County Frank Birchak, Deputy Public Defender March 4, 2015 At ADI, Inc.

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Presentation on theme: "Prop 47 in San Diego County Frank Birchak, Deputy Public Defender March 4, 2015 At ADI, Inc."— Presentation transcript:

1 Prop 47 in San Diego County Frank Birchak, Deputy Public Defender March 4, 2015 At ADI, Inc.

2 Court Process

3 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

4 Post-sentence cases

5 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 relief or getting no more than the misdemeanor punishment

6 PROGRESS SO FAR

7 More than 17,000 petitions filed

8 About 1400 granted About 400 rejected

9 Major litigation issues in progress

10 Applicability to Delinquency Juvenile Court said does not apply to delinquency because does not say conviction We have filed a writ and the 4 th 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 process.

11 Scope of Shoplifting Multiple hearings set on whether offenses qualify for 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.

12 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

13 PC DA seems to agree enhancement should be stayed if enhancement is attached to the case that relief was granted on. They dispute the court’s ability to do anything on a case not granted 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 relief on primary offense. DA may appeal.

14 Parole orders Client gets relief under new sentence is 180 days Client has 448 actual days of credit Client has 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.)

15 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

16 Parole ordered off 1170(h) Client has an 1170(h) commitment [no tail], of two years 9 days before term complete granted Court orders year of parole

17 , 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).)

18 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

19 Priors Several cases in several departments have motions about prison priors pending. Some positive informal tentative comments by judges. Working on test cases to seek relief on cases where the offense not eligible, but the prison prior is based on a case reduced under Slower process because have to get the granted on the underlying case first. Litigated and are appealing loss on PC1203(k)

20 Failure to Appear Working on a test case and briefing. Do not believe hearing set on this yet.

21 Other Questions

22 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

23 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.

24 Appeal pending “The defendant's petition under Penal Code section 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, 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 will be determined at that point in time.”

25 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

26 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.

27 Issues 4 th DCA refused to hear by writ Denial of application on MDO case Whether library is a commercial establishment

28 Additional issues appealed Is VC10851 covered – using Santa Clara and Contra Costa arguments – from a pre-sentencing case, not relief. Does a PC 1203(k) restriction go away when the case the client was on probation recalled and resentenced under Prop 47

29 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

30 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.

31 Our current team Troy Britt, Euketa Oliver, Marian Gaston, Frank Birchak, is much better for us than phone calls


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