California to enact Prop. 36, increasing punishment for theft, drug crimes and homelessness

California Attorney General Rob Bonta has laid out how The Homelessness, Drug Addiction and Theft Reduction Act, passed by voters on Nov. 5., will be implemented.

Prop. 36 alters existing areas of the Penal Code and Health and Safety Code when it comes to theft, property damage and drug-related crimes. These changes include the creation of new felony theft and drug crimes, removing the provision that allows certain sentences to be served in county jail and aligning the punishment for crimes involving fentanyl with that of other similar controlled substances.

“Ultimately, our success in combating organized retail crime hinges on our ability to work together, innovate, and remain steadfast in our commitment to protecting our neighborhoods and businesses,” Bonta said in a statement. “Let us harness the strength of our partnerships, the power of new legislation, and the collective resolve of our community to create a safer and more secure environment for everyone. My office is committed to fighting organized retail crime head on.”

Prop. 36 creates a new penal code section, 490.3, which allows the total value of stolen merchandise to be aggregated in order to meet the $950 felony threshold without having to prove that the different crimes were motivated by one intention or plan. 490.3 applies “notwithstanding any other law,” overriding other laws that only law aggregation of thefts if it can be proved that all of them were committed in an organized way with one purpose.

The proposition creates another felony, penal code 666.1, if an individual commits petty theft or shoplifting while having two or more prior misdemeanor or felony convictions for theft-related crimes no matter how long ago they occurred.

It will also re-enact penal code section 12022.6 enhancement which was repealed at the end of 2017. This law enhances additional prison terms for felonies where an individual takes, damages, receives, possesses, sells or damages stolen property. A one-year enhancement is allowed if there is a loss of property value over $50,000, two-year enhancement if the value is over $200,000, three-year enhancement if the value is over $1 million, four-year enhancement if the value is over $3 million and a one-year enhancement for every additional loss of property value of $3 million.

Additionally, Prop. 36 adds a new provision to Health and Safety Code section 11369 that would require drug dealers convicted of dealing a hard drug that is dangerous or deadly to human life that if the conduct continues they could be charged with homicide up to and including murder.

One of the biggest aspects of Prop. 36 is the Treatment-Mandated Felony Act. This section of the Health and Safety Code does numerous things including creating a felony for possessing a hard drug and having two or more prior felony or misdemeanor convictions for drug-related crimes and is punishable by prison. Additionally, judicial review is required prior to release from custody to determine the arrestee's risk of public safety.

Section 11395 also allows an option for treatment in lieu of incarceration.

“Health and Safety Code section 11395, subdivision (d) provides that a defendant may choose treatment instead of county jail, state prison, or a grant of probation with county jail as a condition of probation,” reads the Prop. 36 bullet released by the attorney general’s office. “Upon successful completion of the treatment program, the positive recommendation of the treatment program, and a motion by the defendant, the court shall dismiss the Health and Safety Code section 11395 charge.”

This specific provision received backlash ahead of the election from numerous organizations, including the ACLU of California.

“Prop 36 would create ‘treatment-mandated’ felony charges for simple drug possession, without providing any funding for treatment,” reads a statement from the ACLU. “If a person is unable to successfully complete mandated treatment, they will not only have a felony conviction, they will also face up to three years in jail or prison. We know mandated treatment doesn’t account for how relapse is part of the recovery process and shouldn’t be punished. We also know people impacted by incarceration are ten times more likely to have a drug overdose than the general population. Californians for Safety and Justice estimates Prop 36 would send over 50,000 people to prison and jail for drugs.”

Other concerns about Prop. 36 include that it would be rolling back Prop. 47, a 2014 criminal legal system reform that turned some non-violent felonies into misdemeanors.

“Backers of Prop 36 want you to believe Prop 47 is responsible for houselessness, drug addiction and theft, but that’s just not the case,” reads a statement from ACLU. “Prop 36 would create new (and resurrect old) sentencing enhancements, requiring judges to add extra years of prison to someone’s sentence despite how study after study show that longer sentences do not deter crime and that just one day in jail is so destabilizing it increases the likelihood of re-arrest.”