The measure was aimed to reduce prison overcrowding by reducing a number of felonies to misdemeanors, including certain theft crimes by raising the threshold from $400 to $950, as well as certain drug-related charges. Moreover, the Proposition provided that the money saved from incarceration will be funneled towards the funding of mental health and drug treatment programs, K-12 schools, and crime victims.

A number of studies have demonstrated that the measure more or less achieved its aims, with a decline in recidivism, reduction of prison population, and savings of over 800 million dollars. Moreover, since the passage of Prop 47, the rate of violent crimes, burglary, or robbery, has not increased. However, opponents of the measure have continuously argued that Prop 47 is the reason for the uptick of retail theft during the COVID pandemic as well as the increase in homelessness in the state. An attempt to amend Prop 47 in 2020 failed at the ballot box.

This is year, however, there is a new initiative on the ballot, Proposition 36 (The Homelessness, Drug Addiction, And Theft Reduction Act). It aims at rolling back some of the changes made by Prop 47, by increasing the penalties for certain theft and drug crimes. Proposition 36 has wide support across the political spectrum, including endorsements by the mayors of San Francisco, San Diego, and San Jose, as well as a number of Democratic state legislators. More importantly, polls show that overwhelming majority of Californians support it and the measure is destined to become law.

Therefore, it is important to summarize the main changes that Proposition 36 will bring and how they might affect a person in the future:

• First, the initiative provides for a new “treatment-mandated felony.” This new type of crime would allow DAs to charge someone with a felony for a third drug-related offense. Under the new felony, if a person does not contest the charge, he or she would be given the chance to participate in a drug or mental health treatment and upon completion of the court-mandated treatment have the charge expunged from their record. However, if the person refuses or fails to complete treatment, they would get to serve up to three years in prison.
• Second, under Prop 36, judges will be obligated to warn all individuals convicted of distributing any amount of the so-called “deadly drugs” like fentanyl, heroine, cocaine, and methamphetamine, that if in the future they distribute such drugs to a person who later dies from them, that they could be charged with murder. This provision will make it easier to prosecute such a person for murder in the future and it will apply to anyone, including individuals who provide a friend with drugs.
• Third, the initiative adds fentanyl to the list of drugs that result in a felony charge if the person possesses any amount of the so-called “deadly drugs” and a loaded firearm, even if the person is in lawful possession of the firearm.
• Forth, Prop 36 would increase the criminal penalties for some theft crimes when the person has had two or more prior theft-related convictions. In such cases, the person can be charged with a felony for a subsequent theft crime regardless of the value of the stolen property. Furthermore, the initiative will give DAs discretion to add together multiple unrelated misdemeanor thefts in order to charge a person with a felony instead of misdemeanor petty theft.
• Finally, the measure provides for the addition of harsh mandatory sentencing enhancements. The initiative adds fentanyl to the mandatory sentencing enhancements for drug sale or possession. Moreover, it gives judges discretion to impose sentencing enhancements when a person steals, destroys, or damages any amount of property by acting jointly with two or more other people; or if the person acts alone but causes losses exceeding $50,000.

As already mentioned above, Proposition 36 is set to pass in November 2024 and become a law. The measure will have serious consequences and impact negatively countless people, especially minority and low-income communities.

If you or a loved one has been arrested, the highly skilled and reliable attorneys at the Justice Firm are here to help and answer any questions you might have. Our criminal defense attorneys have decades of experience representing individuals in all misdemeanor and felony cases and you can contact them today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

Needless to say, the end result of the STEP Act has been devastating and has caused an immeasurable damage to entire neighborhoods and communities. For defendants, a gang member designation can have a very negative impact through their entire interaction with the criminal system, including pretrial release, sentencing, incarceration, parole, reentry, and for non-citizens an almost guaranteed deportation.

In 2020, Governor Newsom commissioned the Committee on Revision of the Penal Code to examine the California Penal Code and to issue recommendations for reform. According to the Committee’s 2020 report, the STEP Act has been applied inconsistently and has disproportionately affected communities of color. Furthermore, the report pointed out that while between 2011 and 2019 California reduced its prison population, during the same period, the number of inmates who were serving gang enhancements increased by approximately 40 percent. Moreover, according to the report, in Los Angeles, more than 98 percent of defendants with gang enhancements were people of color.

The report went further in pointing out that gang enhancement evidence are regularly grouped together with evidence of the underlying charges, which makes those evidence not only unreliable, but highly and unfairly prejudicial to a jury. In addition, because of the lax standards of proof, many people have unjustly been lumped into gang networks simply because of their families or communities. Finally, there have been no evidence to show that the wide imposition of gang enhancements has been an effective deterrent to gang related crimes or violence.

As a result of the report and other studies, the California legislature passed Assembly Bill 333 or the STEP Forward Act of 2021, which came into effect on January 1, 2022. The purpose of AB 333 was to address the inequities caused by the STEP Act and its subsequent amendments by redefining certain terms and making the standards for applying gang enhancements more rigorous, so that they are used only when it is necessary and fair. The most important changes in the law include:

• Removing certain crimes from the list of crimes eligible for gang enhancement charge. The new law removes looting, felony vandalism, and certain identity fraud violations from the list of offenses that can be used to establish a “pattern of criminal gang activity.”
• Redefining a “pattern of criminal gang activity.” The new law requires that in order to form a pattern of criminal gang activity, the crimes committed must be shown to have commonly benefited a criminal street gang and that benefit has to be more than reputational, such as financial gain, retaliation, gang rival targeting, or intimidating witnesses.
• Moreover, AB 333 explicitly prohibits the use of the crime being prosecuted to prove a pattern of criminal activity.
• Finally, the STEP Forward Act added Section 1109 to the California Penal Code, which requires that, if requested by the defense, the underlying offense must be proven first, and only if there is a finding of guilt, there should be further and separate proceedings on the truth of the gang enhancement.

At the Justice Firm, our highly skilled and experienced attorneys continuously follow the new developments in California’s laws and are always prepared to fight for our clients for lesser penalties, sentence reductions, and appeal of sentences or convictions.

We understand that the attorney-client relationship is an important aspect of your legal journey and our highly knowledgeable and compassionate attorneys are here to help and answer any questions you might have. If you or a loved one has questions about this law, or if you think that AB 333 could impact your case, contact our California criminal attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

Throughout the years, many immigrants in California have entered a plea or have been convicted at trial, without being properly informed of the immigration consequences of a criminal conviction. And for most non-citizens, the immigration consequences of a conviction only come to light when they find themselves in immigration court facing deportation, which, in many instances, can be years after they had completed their criminal sentence. In most of those cases, the only way for a non-citizen to avoid deportation and to remain in the United States is to challenge their criminal conviction. However, because California law did not provide a post-conviction relief for people who were no longer in custody, many people have been unjustly deported, or at best, have been stuck in the backlogged immigration system for years.

Recognizing that there are a large number of immigrants in California who have already finished serving their sentences, but who have not received the proper legal advice about the impact their convictions could have on their immigration status, the California legislature enacted Assembly Bill 813, which was codified as PC 1473.7, and became effective on January 1, 2017. Essentially, the new law gave people who were no longer in custody the ability to challenge their criminal convictions and vacate their judgments. Initially, the law was limited to convictions that were the result of a plea of guilty or nolo contendere. However, in 2021, the state legislature passed AB 1259, which amended PC 1473.7. As a result, as of January 1, 2022, the law now also provides a post-conviction relief for non-citizens who were convicted at trial.

A PC 1473.7 motion to vacate can be filed on two grounds: (1) if a prejudicial error had occurred, which damaged the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence, or (2) if evidence of actual innocence had been discovered. Notably, the prejudicial error ground for filing a successful motion to vacate does not require a finding of ineffective assistance of counsel. Moreover, in order to establish prejudice, the moving party does not have to prove that he or she would have obtained a more favorable result in the absence of the error.

PC 1473.7 includes a timing requirement that such motions be filed with “reasonable diligence” after receiving a notice to appear in immigration court, other notice from immigration authorities, or after a notice of final removal order, whichever is later.

All PC 1473.7 motions are entitled to a hearing, and if the moving party successfully establishes by a preponderance of the evidence that he or she is entitled to a relief, the motion will be granted, and the conviction will be vacated and erased from the person’s criminal record. However, that does not guarantee that the case will be dismissed. The case will only be dismissed, if the prosecution agrees to dismiss it. In the alternative, the prosecution may offer a different plea, and if not, the case will proceed to trial.

If an individual has a criminal record, obtaining a permanent legal status or citizenship is extremely difficult, if not impossible. At the Justice Firm we fight zealously to protect our clients’ rights and we believe that everyone is entitled to the opportunity to build a better future.

If you or a loved one is facing criminal charges, or needs assistance with a post-conviction relief, our highly skilled and compassionate attorneys are here to help and to answer any questions you might have. You can contact our experienced California Criminal and Immigration attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

In essence, AB 3234 gives judges the power to grant a diversion to a defendant in a misdemeanor case and to postpone the case for up to 24 months. Importantly, under this law, a judge has the power to “divert” a case, even if the prosecuting attorney objects. The offer of a diversion is entirely within a judge’s discretion, which means that the defendant has to show good reasons for why he or she is worthy of being granted a diversion. In considering whether to grant judicial diversion, judges would take into account defendant’s history, character, background, and the specific facts of the case and every diversion will be tailored to the specific circumstances of each case and the crime charged.

A defendant would be deemed to have successfully completed the judicial diversion program when they complete all court-ordered terms, conditions, and programs, which can include community services, treatment programs, anger management or domestic violence classes among others. In addition, during the duration of the program a defendant has to comply with any court-ordered protective or stay-away orders, or orders prohibiting firearm possession. Finally, a defendant has to make full restitution to the victim. However, the law specifically states that a defendant’s inability to pay restitution due to indigence cannot be grounds for denial of diversion or a finding of failure to comply with the terms of the diversion.

Upon successful completion of a diversion program, the court is obligated to dismiss the case against the defendant. Not only would the case be dismissed, but also the arrest upon which the diversion was ordered will be deemed to have never occurred. In practice, what that means is that following a dismissal, in response to any question about an individual’s criminal history, a defendant can legally say that they have never been arrested. The only exception is, that if a defendant applies for employment as a peace officer, the Department of Justice can still access the arrest information, and if asked directly, a defendant has to answer that he or she has been arrested.

It is worth noting that AB 3234 specifically disqualifies certain offenses from eligibility under this diversion program, including registrable sex offenses, domestic violence offenses, and stalking offenses. Moreover, although the new law is silent on DUI misdemeanors, DUI crimes are nevertheless specifically excluded from any diversion-type programs pursuant to other laws.

Even with the above listed exceptions, the judicial diversion program does cover an extensive list of misdemeanor criminal offences. Some of the most common crimes that are eligible under the program include simple assault, simple battery, petty theft, vandalism, possession of drug paraphernalia, public intoxication, disturbing the peace, possession of a controlled substance, trespass, and much more.

A criminal record can and does have a long-term effect on an individual’s life, and a criminal conviction can lead to very harsh consequences including the retaining of or obtaining employment, a professional license, or certain benefits, and for non-citizens, it can have a devastating impact on their immigration status.

The Misdemeanor Diversion Program gives defendants a chance to have their misdemeanor cases dismissed and to avoid all the negative consequences of an arrest or conviction. At the Justice Firm, we understand the value of a solid attorney-client relationship, and are ready to work with you to achieve the best outcome possible.

If you or a loved one has been arrested and would like to know more about the judicial diversion program or any other matter, our highly skilled and reliable attorneys are here to help and answer any questions you might have. Our criminal defense attorneys have decades of experience representing individuals in all misdemeanor and felony cases and you can contact them today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

Fortunately, in light of the adverse immigration consequences noncitizens face, some district attorneys are starting to adjust their offices’ immigration-related policies, including the Los Angeles District Attorney, George Gascon. On December 6, 2022, Mr. Gascon issued a new special directive outlining the new immigration policies of the LA District Attorney’s Office, which, among other things, is aiming to address the overly punitive consequences accused noncitizens could face.

First, according to the new policy, prior to when a charging decision is made, any person who is under investigation or their attorney, can present information demonstrating the potential adverse immigration consequences that could follow. In such cases, all charging determinations by the DA office should be made with the goal of avoiding or mitigating any adverse consequences a charge could have, and if there are possible alternatives to charges being filed, the DA office should pursue those alternatives. In addition, the new policy encourages prosecutors to expand the use of pretrial diversion programs that do not require an admission of guilt.

Second, in line with section 1016.3 of the California Penal Code, which requires that in all plea negotiations, the prosecution has to consider the avoidance of adverse immigration consequences as a factor in reaching a resolution, the new directive makes clear that “it is in the interest of justice to endeavor to avoid or mitigate immigration consequences of criminal convictions whenever possible.” Accordingly, the new directive lays out a comprehensive plan for plea bargaining, including:

• Allowing for flexibility in sentencing, including splitting sentences across counts, as well as flexibility in sentencing for a probation violation; and
• Avoiding sentence enhancements that would turn a neutral offense into an immigration damaging one.

Furthermore, the new directive lays out the Office’s policy on post-conviction relief. In 2016, the California legislature passed section 1473.7 of the California Penal Code, which created a vehicle for noncitizens, who are no longer in criminal custody, to seek post-conviction relief by allowing them to move to vacate prior convictions when there is a “prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.” In accordance with this, the new immigration policy directs prosecutors to concede without delay all motions to vacate, where it is clear from the record that a defendant was not able to comprehend, defend against, or knowingly accept the immigration consequences of a plea or a sentence.

Moreover, the new policy lists several type of cases in which it can be expected that a motion to vacate would not be opposed by prosecutors. These cases include:

• Motions to bring a sentence down from 365 to 364 days;
• Proposition 36 cases, where the defendant has completed the drug treatment diversion program;
• Post-plea deferred entry of judgment cases;
• Marijuana cases, which have been dismissed as part of the mass cannabis record clearance;
• As well as cases where the defendant has been in the military and has been honorably discharged.

In general, the new policy makes clear, that regardless of the type of case, in all motions to vacate based on immigration consequences, prosecutors should consider all mitigating factors, including whether the defendant was a juvenile; how old the conviction is; the severity of the crime and the facts of the case; as well as the defendant’s character, including family history, work history, and contributions to the community. And, in cases where it is determined that a different resolution would have been reached, if the adverse immigration consequences had been raised initially, the prosecution should stipulate to a motion to vacate.

At the Justice Firm, we know that the attorney-client relationship is an important aspect of your legal journey and we work hard for all of our clients to achieve the best outcome possible.

If you or a loved one is facing criminal charges, or is seeking post-conviction relief, or needs help with any criminal matter, our highly skilled and reliable attorneys are here to help and to answer any questions you might have. You can contact our experienced California Criminal and Immigration attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.