Plans for Penal Code changes are taking shape

Recommendations from a state committee of judges, academics and lawmakers for overhauling segments of California's Penal Code to make it less discriminatory and punitive are taking shape in the form of proposed legislation.

Sen. Nancy Skinner, D-Berkeley, introduced two bills this week that would give judges more guidance for deciding if dismissal of a sentence enhancement is in the interest of justice and would prevent prosecutors from elevating petty theft charges to felony robbery.

The proposed bills, SB 81 and SB 82, are modeled after two of nearly a dozen recommendations included in an 89-page report released Tuesday by the Committee on the Revision of the Penal Code. Gov. Gavin Newsom and the Legislature appointed the committee last January and tasked it with making recommendations for simplifying and rationalizing the state's criminal laws. Skinner is one of two legislative members of the committee.

The recommendations made in the report are those that can likely be passed in the Democratic-led Legislature if they take the shape of proposed bills. They include reducing infractions of driving without a license to misdemeanors and reducing the fines and fees associated with them; requiring short prison sentences to be served in county jails; ending mandatory minimum sentences for nonviolent offenses such as drug crimes; limiting gang enhancement charges to only the most serious cases and requiring direct evidence of current and active gang involvement when filing such charges; retroactively applying repealed sentence enhancements; and clarifying parole suitability standards to focus on a convict's risk of committing violent or serious offenses if released.

The committee said in its report that it avoided making any recommendations that would require a voter initiative or a two-thirds vote by lawmakers to be enacted. However, because this was the first year the committee was tasked with recommending Penal Code revisions, the group suggested it will take on those types of changes in the future, hinting at the three strikes law, life without parole sentences and capital punishment.

Sen. Dave Cortese, D-San Jose, also introduced two bills on Thursday that he said are in line with general recommendations that California's criminal laws should focus on rehabilitation as opposed to incarceration for nonviolent offenders.

SB 383, called the Juvenile Justice Diversion Act, would remove procedural barriers and expand diversion programs for nonviolent juveniles who commit crimes in counties they don't reside in. SB 384, called the Family Finding Act, would create new protocols that would make it more likely for children who are removed from parental care to be placed in the care of relatives. Both measures are supported by the California Judges Association.

Last September, during a virtual hearing of the Penal Code committee, former Gov. Jerry Brown was asked by Skinner if he had any specific recommendations for restructuring California's sentence enhancement laws, which prosecutors rely on to seek increased prison sentences for specified crimes.

"You might take a bite at getting rid of all the enhancements," Brown responded, adding that the Legislature could introduce a bill that would "move it in a way that a judge should be disinclined to put on enhancements."

According to the committee's report, at least 80% of people incarcerated in state prison are serving sentences that were lengthened by one or more of the state's more than 150 sentence enhancements that are on the books. The report also found that enhancements such as gun use or gang affiliation are disproportionately applied against people of color and those suffering mental illness.

Under current statutes, in order to dismiss an enhancement in an active case, judges must determine whether doing so would be in the interest of justice. The committee said because the Legislature has never defined or clarified that standard, sentence enhancements have been applied inconsistently across the state.

Skinner's SB 81 follows the committee's recommendation that the Legislature establish clear guidelines and presumptions that judges should consider when determining if dismissing enhancements favors justice. Unless there is clear and convincing evidence that doing so would endanger the public, SB 81 would direct judges to not allow enhancements in cases involving nonviolent crimes; cases involving multiple alleged enhancements; cases where the total sentence is more than 20 years; cases where enforcing the enhancement would result in a "disparate racial impact"; cases where the alleged enhancement is based on a prior conviction that's more than five years old and cases where the defendant was a juvenile when they committed an alleged offense.

"SB 81 sends a clear message to our courts: Sentence enhancements should be used judiciously, and only when the enhancement is necessary to protect the public," Skinner said in a statement.

Sentence enhancements have been a hotly debated subject in recent months after district attorneys in San Francisco and Los Angeles took them off the books in their office policy. A superior court judge in Los Angeles ruled earlier this week that unless prosecutors have legal grounds to argue that dismissing an enhancement is in the interest of justice, a blanket policy prohibiting them from being alleged is unlawful. LA DA George Gascón, who had directed his prosecutors to read a statement in court saying statutory sentences without enhancements are sufficient to improve public safety while promoting criminal rehabilitation, is appealing that decision.

Another recommendation from the committee that Skinner drafted into proposed Legislation would amend a criminal statute that hasn't been touched in nearly two centuries. Enacted in 1872, SB 211 simply states that robbery is a felony offense when it is "accomplished by means of force or fear."

Skinner's SB 82 would prevent prosecutors from being able to charge petty thefts under the statute if they do not involve force or fear and do not result in serious bodily injury. "Petty theft, like shoplifting, should never be treated as felony robbery," Skinner said.

The bill would create two new categories of petty theft. "Petty theft in the first degree" would include thefts under $950 that may involve force or fear and would be punishable by up to a year in jail and or a $1,000 fine. "Petty theft in the second degree" would include thefts that don't involve the use of force or fear and would be punishable by up to six months and or a $1,000 fine. Prosecutors would not be able to charge either category as robbery or burglary, and the measure would apply retroactively, allowing convicts to petition courts for resentencing.

Skinner said California is behind New York, Oregon, Illinois and Texas in restructuring its robbery and theft statutes.