Can a Prisoner Demand Trial or Sentencing?

Yes. A prisoner can demand trial or sentencing on a pending case.¹ To make this request the prisoner. must:

Contact the district attorney where the charge is pending;
Tell the district attorney where they are incarcerated;
Demand to come to court for trial or sentencing.

The prisoner must make this request in writing. In response, the District Attorney obtains an order for the agency holding the prisoner bring them to court. If, however, the District Attorney does not bring the prisoner to court within 90 days, the judge must dismiss the case.

The prisoner can request or agree to a continuance of the 90 day deadline. The court must enter the prisoner’s agreement to continue the deadline into the court’s minutes.

Qualifications for Prisoner to Demand Trial

The prisoner must be serving:

A sentence of 90 days or more in county jail;
A term in state prison;
A term in a Youth Authority institution;
A state rehabilitation center.

The prisoner must have a pending charge in California.

Charges Filed After Incarceration

A prisoner may demand trial or sentencing on charges filed after the prisoner is incarcerated.

Penal Code § 1381.↩︎

Good Time Credit Limited under PC § 2933.1

Good time credit is limited under Penal Code (“PC”) § 2933.1. This limitation applies to persons convicted of violent felonies.

Penal Code § 4019 – Good Time Credit

A person incarcerated in a county jail can earn “good time” credits. To qualify for good time credits, the prisoner must serve a minimum of 4 days. In addition, the prisoner must comply with jail regulations and perform labor. If the prisoner meets these requirements, they earn four days of credit for every two days served in jail.

Example: A defendant who is in custody for 100 days would earn 100 days of good time credits.

Good Time Credit Limited by PC § 2933.1

Persons convicted of violent felonies listed in Penal Code § 667.5 can only earn 15% good time credits while in county jail.

Example: A defendant who is in custody for 100 days would earn 15 days of good time credits.

Penal Code § 667.5 Violent Felonies

Violent felonies include murder, mayhem, robbery, arson, kidnapping, and many other violent crimes.

In addition, a violent felony is any felony:

in which the defendant inflicts great bodily injury;
on a person other than an accomplice;
which has been charged and proved.

Charged means that the allegation of a violent felony under Penal Code § 667.5 appears on the face of the complaint or information.

Proved means that allegation is admitted by the defendant, or found to be true by a judge or jury.

PC § 2933.1 Applies to Credits Earned Before Sentencing

Before the defendant is convicted of a violent felony, they earn regular good time credits of 2+2. However, once they are convicted, the limitation in Penal Code § 2933.1 applies. At sentencing, their credits are re-calculated and their good time credits will be reduced to 15%.

The defendant cannot earn more than 15.00%. The credits are rounded down to the closest whole number that is not more than 15%. (see People v. Ramos (1996) 50 Cal.App.4th 810.)

Example: A defendant who served 213 actual days in custody would receive 31 days of good time credits. 15% of 231 is 31.95. Therefore, 31 is the larges whole number that does not exceed 15%. Contact RBX Law if you have a question about good time credits.

Firearm Prohibition for Misdemeanor Domestic Violence

Firearm Prohibition

Current law places a ten year firearm prohibition on person convicted of certain violent crimes. Basically, this means a person cannot own, possess, control, purchase, or receive a firearm.

This includes a misdemeanor conviction for domestic violence.

Assembly Bill 3129

Beginning January 1, 2019, a conviction for misdemeanor domestic violence (Penal Code Section 273.5) will result in a lifetime firearm prohibition.

The punishment for violating this law is a maximum fine of $1,000 and/or up to one year in jail or prison. Because prison is a possible sentence, this violation can be charged as a misdemeanor or a felony.

Which Crimes Result in Ten Year Firearm Prohibition?

The ten year prohibition applies to many violent misdemeanors, including battery, domestic violence, criminal threats, and brandishing a weapon.

For a list of all misdemeanor convictions that require a firearm prohibition, see Penal Code Section 29805.

How Long Does the Prohibition Last?

A misdemeanor domestic violation conviction under Penal Code Section 273.5 results in a lifetime ban. However, the law does not take affect until January 1, 2019.

All other misdemeanors listed under Penal Code Section 29805 result in a ten year ban.

Contact

924 Anacapa Street, Suite 1-T
Santa Barbara, CA 93101
(805) 635-7766
RABLAW805@gmail.com

When Do SB 1437 Changes to Felony Murder Rule Start?

Felony Murder Rule Relaxed by Senate Bill 1437

On September 30, 2018, Governor Brown signed Senate Bill 1437 into law. SB 1437 relaxed the felony murder rule. Beginning January 1, 2019, a participant in a felony is guilty of felony murder only if he or she:

Was the actual killer, OR
With the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, OR
Was a major participant in the underlying felony and acted with reckless indifference to human life.

When Does SB 1437 Take Affect?

Senate Bill 1437 takes affect beginning January 1, 2019. Qualified inmates convicted before that date can petition to be re-sentenced.

Qualifying for Re-sentencing

There are three qualifications for re-sentencing.

First, a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.

Second, the defendant was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or second degree murder.

Lastly, the defendant could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.

How to Petition for Re-sentencing

The first step is to file a petition with the sentencing court. The inmate must include a declaration by the inmate that he or she meets the qualifications for re-sentencing.

The second step is for the court to determine whether the inmate meets the three qualifications for re-sentencing.

If the inmate meets the qualifications for re-sentencing, the third step is a hearing. This hearing is called an “Order to Show Cause.” At that hearing, the court will determine whether to vacate the murder conviction.

Felony Murder Re-sentencing

The court may recall the felony murder sentence and re-sentence the inmate on any remaining counts.

The inmate can be sentenced as if he or she had not been previously been sentenced. However, the new sentence cannot be greater than the initial sentence.

Contact

924 Anacapa Street, Suite 1-T
Santa Barbara, CA 93101
(805) 635-7766
RABLAW805@gmail.com

Prop 47 Case Law Update

What is Prop 47?

Prop 47 makes certain drug and property offenses under $950 a misdemeanor.

Prop 47 Case Law

Prop 47 was passed on November 4, 2014. Since then, courts have ruled that the following charges should also be misdemeanors:

Embezzlement of $950 or less – Penal Code 503 (People v. Warmington)
Joyriding of a vehicle worth $950 or less – Vehicle Code 10851 (People v. Page)
Attempting to cash a check worth $950 or less – Penal Code 459.5 (People v. Gonzales)
Theft of Account Information of $950 or less – Penal Code 484e(d) (People v. Romanowski)

Proposition 47 Does Not Apply to the Following Charges

Medical Prescription Forgery – Health and Safety Code 11368 (People v. Gallardo)

Proposition 47 Applies to the Following Charges:

Shoplifting – Penal Code 459 – Shoplifting
Forgery – Penal Code 470-476
Fraud/Bad Checks of $950 or less – Penal Code 476a
Grand Theft of $950 or less – Penal Code 487
Petty Theft/Shoplifting of $950 or less – Penal Code 484, 484/666
Possession of Methamphetamine – Health & Safety 11377
Possession of Controlled Substance – Health & Safety 11350
Possession of Concentrated Cannabis – Health and Safety 11357(a)
Receiving Stolen Property – Penal Code 496

Prop 47 is Retroactive

Proposition 47 applies to cases prior to November 4, 2014. Inmates must file a petition in the county courthouse where they were convicted. The petition forms vary by county and can be accessed here.

Contact

(805) 635-7766
RABLAW805@gmail.com

SCR 48: Resolution to Reform Felony Murder Rule

SCR 48 – Senate Concurrent Resolution

SCR 48 is a senate concurrent resolution passed on September 22, 2017. It recognized the need for statutory reform to more equitably sentence offenders according to their involvement in the crime.

Although SCR 48 did not make any changes to existing law, it laid the foundation for Senate Bill 1437 – Accomplice Liability for Felony Murder.

Senate Bill 1437 is making its first pass through the California state legislature. After the Committee on Public Safety approved the bill by a vote of 6-1, it was referred to the Senate Appropriations Committee. A meeting before the Appropriations Committee is currently set for May 7, 2018.

SCR 48 – Punishment Should Match the Crime

Currently there are 2 laws – felony murder and aiding and abetting – that impose a punishment that is disproportionate to the criminal activity. SCR 48 recognizes that it is fundamentally unfair and in violation of basic principles of individual culpability to punish a person for the unforeseen results of another’s action.

SCR 48 – Overcrowded Prisons are Expensive

According to SCR 48, California continues to house inmates in numbers well beyond its maximum capacity at an average of 130% of capacity. WASCO, for example, is 2,000 inmates over the designed maximum capacity. Incarceration of an inmate in California costs taxpayers $70,836 per year. There are currently approximately 118,000 inmates incarcerated in California.

Malice

“Malice” is a deliberate unlawful intention to take away the life of another. Malice is required for a conviction for first or second degree murder, except in the case of felony murder.

Felony Murder

Under felony-murder, a defendant does not have to intend to kill anyone, nor commit the homicidal act, to be sentenced to first-degree murder. A defendant can be sentenced to first-degree murder even if the killing was unintentional, accidental, or negligent.

First-Degree Felony Murder

A conviction for first-degree murder results in a sentence of 25 years to life.

To be convicted of first-degree felony murder, the prosecutor only needs to prove that the killing was committed in the perpetration or attempt to perpetrate a felony specified in Penal Code Section 189.

Those felonies are arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd act on a child under 14, oral copulation, and rape by instrument.

Second-Degree Felony Murder

A conviction for second-degree murder results in a sentence of 15 years to life.

To be convicted of second-degree felony, the prosecutor only needs to prove that the killing was committed in the perpetration or attempt to perpetrate an “inherently dangerous felony.”

Inherently dangerous felonies include but are not limited to discharging a firearm at an inhabited dwelling, manufacturing methamphetamine, maliciously burning a car, and possessing a bomb in a residential area.

Contact

(805) 635-7766
RABLAW805@gmail.com

Proposition 57 Parole For Nonviolent Inmates

Proposition 57

Proposition 57, “The Public Safety and Rehabilitation Act of 2016,” allows parole consideration for people convicted of nonviolent felonies after they have completed the full term for their primary offense.

The goal of the law is to stop the revolving door of crime by better preparing inmates to succeed when they re-enter our communities.

Parole Process

All inmates currently serving a conviction for a non-violent offense as defined by the California Penal Code will be able to participate in the parole process. The new parole consideration process began on July 1, 2017.

However, inmates are not automatically granted parole. Parole MAY be granted to inmates who have completed the full term for their primary offense and demonstrated that they should no longer be considered a current threat to public safety.

Additional Credits

“Credits” are how the California Department of Corrections and Rehabilitation tracks the number of days remaining on inmate sentences. Proposition 57 allows inmates to earn additional credits for good behavior and participation in rehabilitative, educational and career training programs.

The previous credit system is based on the crime committed. Under proposition 57, credits will be based on conduct and participation in programs. The CDCR will now award increased credits for Good Conduct and Milestone Completion Programs. CDCR will also begin awarding credits for Rehabilitative Achievement and Educational Merit.

Who Can Receive Credits?

Inmates sentenced to death or life without parole are not eligible to receive credits. All other inmates are eligible.

When Did Credits Start?

Good Conduct Credits began on May 1, 2017.
Milestone Completion, Rehabilitative Achievement, and Educational Merit Credits began on August 1, 2017.

All credits except can be revoked for disciplinary infractions except Educational Merit Credits.

Changes To Juvenile Justice System

Proposition 57 removed the prosecutor’s authority to decide whether juveniles charged with certain crimes should be tried in juvenile or adult court. That decision will now be made by judges.

Contact

(805) 635-7766
RABLAW805@gmail.com

Proposition 47 Early Release From Prison

Proposition 47 – Reducing Charges

Proposition 47 reduces the punishment for certain felony drug and property offense charges under $950 to a misdemeanor. It does not apply to registered sex offenders and people with prior convictions for serious or violent crimes.

Re-sentencing For Inmates

Prop 47 permits re-sentencing for people currently serving a prison sentence, or with prior felony convictions. Charges eligible to be reduced to misdemeanors are listed below.

Must File A Petition

No one is automatically released from prison under Proposition 47. Instead you must petition the court to reduce your charges and re-sentence you.

Eligible inmates who petition the court are required to be resentenced unless the court finds an unreasonable risk to public safety.

Risk To Public Safety

When determining the risk to public safety, the court may consider the offender’s criminal history, the types of crimes committed and when they occurred, the extent of injury to victims, the length of prior prison commitments, the inmate’s disciplinary and rehabilitation records while incarcerated, and any other relevant evidence.

What Is The Deadline To Petition?

Your petition must be filed with the court before November 4, 2022.

How Do I File A Petition?

Under Prop 47, in order to petition for a reduction of a crime to a misdemeanor, you must first obtain a copy of your criminal record. Next, you must obtain a petition form for reclassification. Most counties have created petition forms that can be found here.

For counties that have not created petition forms, contact the local courthouse and ask which form to use.

Once the petition is complete, send one copy to the District Attorney’s Office in the county where you were convicted. The other copy is sent to the Superior Court in the county where you were convicted.

Proposition 47 Applies To The Following Charges:

Shoplifting – Penal Code 459 – Shoplifting
Forgery – Penal Code 470-476
Fraud/Bad Checks of $950 or less – Penal Code 476a
Grand Theft of $950 or less – Penal Code 487
Petty Theft/Shoplifting of $950 or less – Penal Code 484, 484/666
Possession of Methamphetamine – Health & Safety 11377
Possession of Controlled Substance – Health & Safety 11350
Possession of Concentrated Cannabis – Health and Safety 11357(a)
Receiving Stolen Property – Penal Code 496
Embezzlement of $950 or less – Penal Code 503 (People v. Warmington)
Joyriding of a vehicle worth $950 or less – Vehicle Code 10851 (People v. Page)
Attempting to cash a check worth $950 or less – Penal Code 459.5 (People v. Gonzales)
Theft of Account Information of $950 or less – Penal Code 484e(d) (People v. Romanowski)

Contact

(805) 635-7766
RABLAW805@gmail.com