By Eric Gelber
Senator Nancy Skinner is the author of two criminal justice reform bills responding to a new report from the state’s Committee on the Revision of the Penal Code (CRPC): Annual Report and Recommendations, Committee on Revision of the Penal Code, 2020 (CRPC Report). The CRPC Report includes ten recommended areas for revising the Penal Code. SB 81 and SB 82 would implement two of them.
SB 81 would create a set of guidelines for courts so that sentence enhancements would no longer be applied to nonviolent offenses unless a judge determines that they are necessary to protect public safety. SB 82 would update a 150-year-old statute that has allowed prosecutors to elevate a petty theft charge into felony robbery.
This article expands on and updates a prior Vanguard article on these bills (2/10/21) based largely on committee and public input, including the committee analysis and public testimony for the March 16th hearing in the Senate Public Safety Committee.
SB 81
What problem/issue would the bill address?
California’s Penal Code has multiple sentence enhancements that can be added to a criminal charge. Sentence enhancements are not elements of the crime, they are additional circumstances that increase the penalty, or time served, of the underlying crime. According to the Public Policy Institute of California (PPIC), as of September 2016, 79.9% of state prisoners had some kind of enhancement, and 25.5% had more than three. The CRPC Report notes that “California’s Penal Code includes over 150 different sentence enhancements. The vast majority of people in the state’s prisons (over 80%) are serving a term lengthened by a sentence enhancement. More than 25% of current prisoners are serving sentences extended by three or more enhancements. On average, enhancements more than double a defendant’s original sentence length. …
“Sentence enhancements can be dismissed by sentencing judges. The current legal standard instructs judges to dismiss a sentence enhancement when ‘in furtherance of justice.’ Courts have not clarified or defined this standard, and the California Supreme Court noted that the law governing when judges should impose or dismiss enhancements remains an ‘amorphous concept.’ As a result, this discretion may be inconsistently exercised and underused because judges do not have guidance on how courts should exercise the power. The lack of clarity and guidance is especially 
concerning given demographic disparities in sentences. As noted, Three Strikes sentences and gang enhancements in California are disproportionately applied against people of color. People suffering from mental illness are also overrepresented among people currently serving life sentences under the Three Strikes law for nonviolent crimes.”
Current law allows judges to dismiss sentencing enhancements “in furtherance of justice.” According to the bill’s author, this standard “lacks clarity and does not provide judges clear guidance on how to exercise this discretion. A ruling by the California Supreme Court noted that the law governing when judges should impose or dismiss enhancements remains an ‘amorphous concept,’ with discretion inconsistently exercised and underused because judges did not have adequate guidance.”
The CRPC Report recommended that the Legislature: Establish guidelines and presumptions (but not requirements) that judges should consider dismissing sentencing enhancements in furtherance of justice under specified circumstances; provide that the presumptions can be overcome if there is “clear and convincing evidence that dismissal of the enhancement would endanger public safety”; and clarify that the list is not exclusive. Judges maintain power to strike enhancements in other compelling circumstances.
What would the bill do?
SB 81 would not eliminate any enhancements. However, in response to the CRPC’s recommendation, SB 81 would establish a presumption that judges should not apply sentence enhancements unless there is clear and convincing evidence that not using the enhancement would endanger the public. This presumption would apply, for example, if the current offense is nonviolent, the current offense is connected to mental health issues, the enhancement is based on a prior conviction that is over five years old, the current offense is connected to prior victimization or childhood trauma, or the defendant was a juvenile when he/she committed the current offense or prior offenses. The bill also discourages enhancements in scenarios where a total prison sentence is already more than 20 years, and if a sentencing enhancement would result in a “disparate racial impact.”
Additionally, SB 81 would not apply if dismissal of an enhancement is prohibited by initiative statute. These would include enhancements enacted by Proposition 83, passed in 2006 (e.g., pertaining to sex offenses, firearms, and causing great bodily injury during the commission of specific crimes), and Proposition 115, passed in 1990 (pertaining to special circumstances for murder).
Comments
Research reviewed by the CRPC showed no evidence that the proliferation of sentencing enhancements in California has made the state safer. Although judges currently have the authority to dismiss most sentencing enhancements, they rarely exercise that discretion, in part because California law does not provide clear guidance on what judges should do.
In formulating its recommendation, the CRPC emphasized that it followed legal guidance provided to judges when exercising sentencing discretion in other contexts. For example, the CRPC noted, California law directs judges on how to exercise their sentencing discretion in the context of probation. The recommendation builds on existing California Rules of Court that guide judges on what circumstances they should consider in aggravation and mitigation in imposing a felony sentence, such as prior abuse, recency and frequency of prior crimes, and mental or physical condition of the defendant. According to the CRPC, the recommendation is also informed by the California Surgeon General’s recent annual report, which recommends that the criminal legal system implement policies and practices that address trauma in justice-involved youth and adults.
Finally, the CRPC emphasized its belief that judges should retain authority to impose sentence enhancements in appropriate cases: “The Committee’s recommendation leaves to judges the authority to impose sentence enhancements to protect public safety. But providing guidance on how and when judges should evaluate the appropriateness of sentence enhancements would provide more consistency, predictability, and reductions in unnecessary incarceration while ensuring that punishments are focused on protecting public safety.” Consistent with the CRPC’s concern, SB 81 would maintain judges’ authority to impose sentence enhancements in appropriate cases, when necessary to protect public safety.
In testimony given before the CRPC, Santa Clara District Attorney Rosen testified that enhancements have evolved to distort and dominate the criminal charging and sentencing process: “[W]hen I began as a prosecutor, enhancements could moderately shift the underlying sentence. Now they have become the tail that wags the dog. It’s quite common now that the entire trial and all pretrial negotiations are solely about the enhancement, not the crime itself.” Los Angeles District Attorney Gascón told the CRPC that enhancements were largely inappropriate, resulting in excessive sentences with “absolutely no connection to public safety.”
In support of SB 81, Smart Justice California noted that “[r]esearch examined by the CRPC revealed that sentence enhancements were applied disproportionately to women, people of color, and those exhibiting mental health issues. Many states have reformed sentence enhancement processes and provided more guidance—for example, by limiting the use of enhancements to convictions that occurred within 5 years.”
In opposing SB 81, the California Sheriffs’ Association stated that “SB 81 seeks to limit the application of many enhancements, including in circumstances in which multiple enhancements are alleged in a single case or the total sentence is over 20 years, the current offense is connected to mental health issues, the current offense is connected to prior victimization or childhood trauma, the current offense is nonviolent, or the enhancement is based on a prior conviction that is over five years old. Some of these conditions are subjective and potentially difficult to demonstrate or prove. Others, including the circumstances wherein multiple enhancements are alleged or a prior conviction is more than five years old, do not necessarily provide enough information as to whether an enhancement enacted by the Legislature or California voters should ultimately be imposed.”
SB 82
What problem/issue would the bill address?
Under current law, robbery is defined as the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. First degree robbery is a felony punishable by imprisonment in the state prison for 3, 4, or 6 years, or by imprisonment in the state prison for 3, 6, or 9 years if the robbery is accomplished in concert with two or more persons. Existing law punishes second degree robbery as a felony punishable by imprisonment in the state prison for 2, 3, or 5 years.
Grand theft is committed when the property taken is of a value exceeding $950, except in specified cases of theft authorizing a lower threshold. Any other case of theft is petty theft. Petty theft is a misdemeanor punishable by a fine not exceeding $1000 or by imprisonment in the county jail not exceeding 6 months, or both.
California’s robbery statute has not been updated since 1872. Under the existing, 150-year-old, robbery statute a person who uses minimal “force” or is perceived to invoke “fear” during a petty theft can be charged and convicted of felony robbery and sentenced to up to five years in prison. The terms “force” and “fear” are often interpreted loosely. For example, someone accused of having made a verbal threat during a shoplifting incident, even when no force was used and no weapon was involved, can be charged with robbery. Likewise, if the person accused of shoplifting bumps into another customer or security guard while running out of the store, causing no serious injury, the charge can be elevated to robbery.
Under current law, prosecutors can elect not to charge robbery when minimal force is used. However, that discretion is not always exercised resulting in many shoplifting or other petty theft crimes being elevated to robbery, a felony that carries up to a five-year prison sentence.
Data show that robbery charges are much more likely when the shoplifter is a person of color. People experiencing a mental health crisis or who have a developmental disability also have a higher likelihood of having their charge include “force” or “fear.”
What would the bill do?
SB 82 would reform the robbery statute to ensure that petty theft is no longer treated like armed robbery by doing the following:
- Creating a new category of “petty theft in the first degree” for thefts under $950 that may involve force or fear but did not cause serious injury or the use of a deadly weapon. This new category would include a higher penalty than simple petty theft and is punishable by up to one year of jail time and/or $1,000 fine.
- Categorizing petty theft that does not involve any force or fear as “petty theft in the second degree” which would remain punishable by jail time for up to six months and/or $1,000 fine.
- Prohibiting either category of petty theft from being charged as robbery or burglary.
- Applying this change retroactively allowing individuals convicted of robbery to apply for resentencing if they meet the criteria.
Comments
The CRPC discussed at length the need to address the problem of theft being charged as robbery and recommended the code changes contained in SB 82. According to the CRPC Report:
“California’s robbery statute has not been updated since 1872. Over the years, the punishment has been extended to a violent felony with a mandatory prison sentence of up to five years, without enhancements. At the same time, courts have also expanded the conduct that constitutes robbery to cover thefts of any value, even when there is no weapon involved nor physical injury to the victim. Additionally, the number of people currently in prison for robbery in California are disproportionately people of color. …
“Following the landmark People v. Estes case in 1983, courts have allowed prosecutors to charge robbery in cases that were previously considered simple shoplifting. In effect, shoplifting can be elevated from a mandatory misdemeanor to a violent crime with a mandatory sentence to state prison. Purse snatches and stealing a cell phone can also be considered robbery, even if a victim is not physically touched. In addition, robbery’s automatic classification as a ‘violent felony,’ regardless of the circumstances, can subject a person to enhanced penalties, including a life sentence under the Three Strikes law. …
“California is currently out of step with other states, which distinguish between different types of thefts and forbid thefts involving minor use of force or fear from being charged as robberies or other felonies. … The Committee recommends adding a new offense to this hierarchy: petty theft in the first degree, punished as a misdemeanor. The offense would cover any thefts from a person or commercial establishment that involved the use of force or fear but where no serious injury was caused and no deadly weapon was used.”
In support of SB 82, the Prosecutors Alliance of California stated that the bill “will establish a clear distinction between theft and robbery by creating a second category of petty theft for cases where no deadly weapon was used and no one was seriously injured, but where there may have been an inadvertent use of force. The [CRPC], which includes judges in its membership, discussed at length the need to address the problem of theft being charged as robbery and recommended the code changes contained in SB 82. New York, Oregon, Illinois and Texas are among the states that have enacted similar statutes.”
In opposing SB 82, the Alameda County District Attorney argued that “The answer to this issue is not to essentially eliminate the crime of robbery, which is violent. Rather, the answer is to provide resource options to the offenders to stop the continued criminal conduct.”
The Yolo County District Attorney’s Office testified in opposition asserting that the bill would base whether a theft is charged as robbery on how well a victim can take a punch.
SB 82 has received considerable opposition from the Asian/Pacific Islander community. The bill comes at a time when there has been an upswing in crimes targeting A/PI individuals. A representative of the Oakland Chinatown Chamber of Commerce characterized the bill, “especially at this time” as “tone deaf.” Chinatown Chamber of Commerce president Carl Chan said most counties do not prosecute petty theft cases.
In response to these concerns, Senator Skinner condemned the recent spate of violent assaults on elder Asian residents and called the recent brutal attack on an elderly man in Oakland “an absolute travesty.” Regarding SB-82, Skinner stated that, if enacted, the proposed bill will not change or reduce the criminal penalty on violent assaults. Violent thefts would remain as felonies.
Both SB 81 and SB 82 passed out of the Senate Public Safety Committee on March 16th. Both bills are now headed to the Senate Appropriations Committee.
Eric Gelber, now retired, is a 1980 graduate of UC Davis School of Law (King Hall). He has nearly four decades of experience monitoring, analyzing, and crafting legislation through positions as a disability rights attorney, Chief Consultant with the Assembly Human Services Committee, and Legislative Director of the California Department of Developmental Services.
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