Prop. 47: Can police keep you locked up by combining misdemeanors?

Prop. 47, CA Penal Code § 1170.18 (2013), is causing some trouble for Fresno police who are trying to keep a man in jail for shoplifting, according to a KMPH 26 (Fox) story published earlier this week.

Prop. 47, which was passed in 2014, makes it so criminal offenders who commit certain non-serious and non-violent drug and property crimes would be sentenced to reduced penalties (such as shorter terms in jail), according to the California Legislative Analyst’s Office. It effectively re-categorized some crimes that could be charged as either a felony or a misdemeanor as strictly misdemeanors.

Previously, shoplifting property worth $950 or less (a type of petty theft) was often a misdemeanor. However, such crimes could also be charged as burglary, a felony. This is why colloquially these sorts of crimes are called “wobblers”; they could go either way depending on the district attorney’s assessment. Under the new law, shoplifting property worth $950 or less would always be a misdemeanor and could not be charged as burglary, and would carry the consequences of a misdemeanor.

It is this consequence of the law that is causing Fresno police some grief, and police are trying to “take the law into their own hands,” according to KMPH.

According to KMPH, a man named Emilio Mancia is currently behind bars facing several charges after being accused of stealing a car and making threats against officers. In the past, Mancia had three shoplifting incidents that were all under the $950 minimum. Police are attempting to get more serious charges pressed against Mancia by combining the three shoplifting incidents that happened in the past, hoping the district attorney brings more serious charges, and hoping to keep Mancia in jail.

This goes completely against the intent of the proposition, which was to reduce the burden of growing prisoner populations on California’s jails.

The Intent of California’s Prop. 47

“My thought is that they are trying to circumvent the clear legislative intent behind the statute. In some cases they may be able to aggregate the value of the goods, but in this case you have three separate incidents that should not be aggregated”Mark Coleman, Fresno Criminal Defense Attorney

“My thought is that they are trying to circumvent the clear legislative intent behind the statute,” says Mark Coleman, a partner at the Law Offices of Nuttall & Coleman. Coleman also has been called upon in the past as a legal analyst for ABC 30 Action News in Fresno.

“In some cases they may be able to aggregate the value of the goods, but in this case you have three separate incidents that should not be aggregated,” Coleman says.

Adam Rodriguez, an associate at the same criminal defense firm, which is based in Fresno, echoes this sentiment.

“The statutes are clear; They cannot aggregate these separate incidents in order create a felony charge,” Rodriguez says.

But that doesn’t leave the state without recourse.

“The district attorney is not without options. Each theft related crime can carry up to one year in custody. Therefore, three convictions for theft could result in three consecutive one year sentences,” Rodriguez says.

“The sheriffs and police continue to complain about Prop 47. However, even if the case is filed as a misdemeanor, the defendant can still be sentenced up to a year in jail for each offense. That is a significant amount of time” Coleman says.

“If they argue that it is a continuous course of conduct, then any sentence he receives would run concurrent pursuant to PC 654. Otherwise he could be subject to up to a year on each offense for a PC 459 for a commercial burglary. A petty theft only carries a 6-month maximum. Under PC 666 petty theft with a prior, he would be subject to a year,” Coleman says.

Sources: CA Penal Code § 1170.18 (2013) Story: Fresno police try to keep career criminal behind bars (KMPH 26)

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