by Kent A. Russell, Esq.
In the November 2016 elections, California voters enacted Propositions 57 and 64, two new laws that will potentially benefit thousands of prisoners and scores of prior marijuana offenders.
Prop 57 makes most non-violent prisoners eligible for much earlier parole consideration than was possible under the prior law. Although Prop 57 does not automatically require that parole be granted to non-violent offenders covered by the new law, by generating earlier parole consideration it jump-starts the complex parole process that, properly handled, could lead to release on parole.
Prop 64 substantially reduces sentences for most marijuana offenses. Moreover, it is retroactive in the sense that it applies to reduce sentences applicable to prior marijuana offenses which, had they been committed today, would have resulted in either a lesser penalty or no penalty at all under the new law.
Although both Prop 57 and Prop 64 take effect immediately, regulations that govern the way these laws operate in individual cases have yet to be enacted, and it may be some time before such regulations are published and applied. In the meantime, prisoners and their families will be well advised to understand the basics of these new laws and how they are intended to operate.
“Early Parole Consideration and Conduct Credits”
Proposition 57 has three main provisions, two related to adults and one to juveniles. The focus here is on the adult provisions that make changes to parole eligibility and credit awards – the factors that determine when a prisoner will first be considered for release on parole.
I suggest that prisoners use the “formula” set out and explained below to determine the extent to which early parole consideration will be granted under Prop 57. If the formula indicates parole consideration will be coming up within the foreseeable future, you should either hire an attorney to assist you in seeking parole release as soon as you become eligible, or devise a plan on your own that will give the parole board what it needs to release you when your hearing comes up and counsel is appointed for you.
For a concise but comprehensive analysis of the entire parole process and what needs to be done to maximize one’s chances for being released on parole at the first eligibility hearing, see Chapter 10 of the California Habeas Handbook 2.0, “Parole for California Prisoners Serving Life Sentences,” written by parole specialist Susan L. Jordan.
Parole Eligibility Under Prop 57 Statutory Language
“Any person convicted of a non-violent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.
For purposes of this section only, the full term for the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.”
A state prisoner who has not committed a disqualifying crime as their most serious offense will be eligible for parole after expiration of the longest term that could be imposed for that offense, exclusive of any increase based on enhancements, consecutive sentences or alternative sentences.
Prop 57 only grants parole consideration for convictions involving “non-violent felony offenses.” It does not define “non-violent felony”; however, California law currently provides two statutory lists: one for “violent felonies” and another for “serious felonies.” Therefore, one should assume that the only disqualifying crimes are those on the “violent” list, which includes murder, attempted murder, voluntary manslaughter, mayhem, forcible sex offenses, rape, spousal rape or rape in concert, robbery, arson of inhabited structure or causing physical injury, assault with intent to commit mayhem or forcible sexual offenses, continuous sexual abuse of a child, kidnapping, carjacking, extortion in support of gang offenses, threats to victims or witnesses, first-degree burglary where a victim is present, any felony punishable by death or life imprisonment, any felony in which a gun is “used” and use of a weapon of mass destruction.
Based on the definition used above, it should be noted that the following crimes, some of which could be considered to be “violent” and appear on California’s list of “serious felonies,” are not disqualifying: assault with a deadly weapon, battery with serious bodily injury, solicitation to commit murder, domestic violence, inflicting bodily injury on a child, first-degree burglary where a victim is not present, rape/sodomy/oral copulation of an unconscious person, human trafficking involving a minor, hate crimes, arson of forest land causing physical injury, assault with deadly weapon on a police officer and active participation in a criminal street gang.
“Full term for the primary offense”
The “primary offense” is the one with the longest sentence attached to it. The “full term” means the longest sentence for that crime without the addition of (a) enhancements, (b) consecutive sentences or (c) alternative sentences.
Examples of enhancements, which cannot be added in to the “full term,” include the following: weapons use (+1), prior prison term (+1 to +5), gang allegation (+2 to +10), excessive loss (+1 to +4), drug quantity (+3 to +25), elderly or vulnerable victim (+1 to +5), sex crime with AIDS (+3) and hate crime (+2 to +4).
Consecutive sentences are imposed on the basis of the following circumstances, which cannot be used to increase the full term under Prop 57: Charges for additional charged crimes, crimes committed on separate occasions and crimes committed against additional victims.
Alternative sentences are ones where a fact, if proved, doesn’t add more time but instead changes the sentence for the underlying offense, usually to a life sentence. Some examples of alternative sentences, which cannot be used to increase the full term under Prop 57, include: Three Strikes (25 to life), gang enhancement (7-life to 15-life) and habitual sexual offenders (25 to life).
The Prop 57 “Formula”
First, determine that your primary offense is “non-violent.” Do this by making sure it is not on the list of “violent” offenses which are disqualifying.
Second, calculate the new parole eligibility date. Use the maximum term for the primary offense, exclusive of any add-ons for enhancements, consecutive sentences or alternate sentences (e.g., Three Strikes).
For example, a defendant who was convicted of (a) 3 counts of burglary with (b) one prior strike and (c) one prison prior. Before Prop 57, he would face a six-year sentence for the first burglary count, doubled due to the second strike for 12 years, plus the two other burglaries merit consecutive sentences for another 5 years and four months, and the prior adds 5 years for a total of 22 years and 4 months. Under the old parole eligibility criteria with 20% credits, the defendant would be eligible for parole after serving 17.86 years.
However, under Prop 57 only the longest term for the principal offense is counted. Therefore, parole eligibility is based only on the primary offense. In this example, for the primary offense of burglary the maximum term would be six years with no additions for consecutive sentences or prior prison terms, with parole eligibility after six years (less credits).
As another example, consider a defendant who was convicted of assault with a knife plus a gang allegation, a prison prior and a prior strike. Before Prop 57, he would face a maximum prison term of 4 years for the knife assault, doubled due to the second strike for 8 years. The gang enhancement would add 5 years and the prison prior would add another 5 years, for a total sentence of 18 years and parole eligibility (with 15% credits) after 15 years and four months.
But under Prop 57 only the longest term for the principal offense is counted. Therefore, the primary offense of the knife assault would carry a prison term of 4 years with parole eligibility after serving four years (less credits).
Credit Earning Under Prop 57 Statutory Language
“The Department of Corrections shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements.”
Although parole eligibility under Prop 57 is limited to non-violent felonies, there is no such limitation for earning credits, which can be awarded for all felonies.
Currently, ordinary felonies earn 50% credit; second strikers with a current serious offense can earn 20% credit; and violent felonies get 15% credit. Prop 57 gives the CDRC the authority to award credits in addition to those already authorized by law, and places no limits on the amount of credits awarded.
“Adult Use of Marijuana Act”
Proposition 64 legalizes marijuana for recreational use and allows anyone convicted of various marijuana offenses to either (a) reduce their conviction to a misdemeanor, (b) reduce it to an infraction or (c) fully expunge and remove the conviction from their record.
Prop 64 operates by adding section 11361.8 to the California Health and Safety Code. The new section applies to possession, cultivation, transportation, distribution, sale and possession of marijuana for sale.
Individuals arrested for marijuana offenses in the wake of Prop 64 will now face much lesser penalties, and in many cases conduct which previously could have led to a felony conviction is now completely legal. Moreover, individuals with prior marijuana convictions can petition the court for a reduction of their sentence if the prior carries a lesser penalty or is made legal under Prop 64. For example, if Prop 64 makes a former felony a misdemeanor, a defendant with a prior felony conviction can petition to have it reduced to a misdemeanor. Similarly, if Prop 64 legalizes what used to be a crime under prior law, the offender can petition to have the conviction expunged and stricken from their record.
The easiest way to see how Prop 64 will apply to various marijuana-related activity is to compare the sentencing structure under the old law to that which will apply under Prop 64.
The table that accompanies this article summarizes the major sentence reductions mandated by Prop 64. The column on the left describes the activity; the middle column shows the sentence under prior law; and the right-hand column describes the reduced penalty under Prop 64.
Obtaining Relief Under Prop 64
Although most prior marijuana offenses can either be reduced or expunged, the process is not automatic. A prior offender must petition a court for relief, establish that the prior is one covered by Prop 64 and demonstrate to the court that he or she is not a danger to society. If the petitioner is successful, the court will reduce the sentence and/or expunge (erase) the conviction. If a conviction is expunged, it cannot be used as a roadblock to employment opportunities or to deny civil rights such as voting or gun ownership.
A petition for relief under Prop 64 can be filed with or without using the services of an attorney. If you elect to try it on your own, the process involves filing the petition, getting a hearing date, appearing in court to convince the court you are not a danger to society and obtaining a signed order granting the requested relief.
Although the California Judicial Council is said to be developing a specific form for relief under Prop 64 (i.e., Health & Saf. Code § 11361.8), at the time this column is being published the only printed form that can be used is the older “Petition for Dismissal,” which applies Penal Code sections 17 and 1203.4. While the existing form can be adapted for relief under Prop 64, shoe-horning will be necessary to get a decent fit.
Be aware that Prop 57 and Prop 64 are just two of a series of recent California laws that open up the chances for post-conviction relief beyond traditional habeas corpus. Other recent enactments include Prop 36 (Three Strikes resentencing – reduces a 3rd strike sentence where it does not involve a serious or violent felony); Prop 47 (reduces low-level property and drug offenses to misdemeanors); the Youth Offender Parole Law (allows for earlier parole for offenses committed before age 23); and Senate Bill 9 (allows for recall of an LWOP sentence imposed on a juvenile). All of these new laws are covered in the California Habeas Handbook 2.0, Chapter 9, “California Time,” co-written by Kent Russell and Susan L. Jordan.
Kent Russell, a contributing columnist to Prison Legal News, is the author of the California Habeas Handbook 2.0, which thoroughly explains state and federal habeas corpus under AEDPA, the federal law that governs habeas corpus practice throughout the United States. Edition 2.0 of the Handbook, revised from top to bottom in 2016, is available for purchase directly from Kent Russell at 3169 Washington Street, San Francisco, CA 94115, or online at www.russellhabeas.com.
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