Kill the batman

No matter how old the conviction, qualified defendants whose crime would have been a misdemeanor had
Prop 47 been the law at the time may ask the court for resentencing as a misdemeanant.  

 Effective on November 5, 2014, Proposition 47 drastically altered the way California charges and punishes many low-level theft and drug possession cases, making them misdemeanors instead of felonies. Tens of thousands of people, no matter how old their convictions, have become eligible to ask for redesignation as misdemeanants; and those currently serving felony sentences may petition for resentencing.

Proposition 36 (2012) amended California’s Three Strikes Law, making certain offenses ineligible to serve as a “third strike.” Proposition 47 (2014) made many low level felonies into misdemeanors, enabling those serving felony sentences to be resentenced as misdemeanants. Under each law, judges may decline to give the defendant benefit of the law if the judge concludes that the defendant poses “an unreasonable risk of danger to public safety.” The question is, when asked to reduce a Three Strikes’ sentence, what does “unreasonable risk” mean, and what factors should the judge consider when making that assessment?

Proposition 36

Proposition 36, the Three Strikes Reform Act, amended California’s Three Strikes Law by allowing people who were convicted for non-serious, non-violent felonies that were designated at sentencing time as a third “strike” to ask the sentencing judge for resentencing as a second striker (without the third strike, the defendant would not have a life sentence). However, to reduce the sentence, the sentencing judge must find that the prisoner no longer poses an unreasonable risk of danger to public safety. Proposition 36 did not define what “unreasonable risk of danger to public safety” meant, nor did it give judges guidance in what factors to consider, leaving the determination up to the judge’s discretion.

Proposition 47

Proposition 47 passed in 2014, and became effective immediately on November 5, 2014. It downgraded many low level theft and drug possession crimes to misdemeanors, and was fully retroactive. Accordingly, many people serving jail or prison time for crimes that would have been misdemeanors had Prop 47 been the law when they were sentenced became eligible for resentencing as misdemeanants. However, the resentencing judge would have to find that the defendant “would not pose an unreasonable risk of danger to public safety.” (Penal Code Sec. 1170.18(b).) That’s the same caveat that’s in Prop 36,  but unlike Prop 36, Prop 47 provided a list of factors that judges may consider when ruling on the “public safety” issue; and specified that an “unreasonable risk” meant an unreasonable risk that the defendant would commit a violent felony as listed in Penal Code Sec. 667(e)(2)(C)(iv). These felonies are known as “super strikes,” and are comprised of the most serious and violent crimes.