Vanguard Analysis: How Prop. 47 Changes Prosecution of Petty Theft and Drug Laws

In March of 2010, Robert Ferguson was sentenced to seven years and eight months in prison for stealing a $3.99 package of shredded cheese from the Woodland Nugget Market. For a time, Mr. Ferguson faced the prospect of spending life in prison as a third strike offender, before national attention convinced the Yolo County District Attorney’s office to treat the offense as a second strike offense.

Mr. Ferguson’s conviction and sentence are not an isolated incident in Yolo County. In November of the same year, Judge Timothy Fall sentenced Michael Caddick to seven years in prison for being the lookout in a shoplifting heist that saw him aid and abet the stealing of Chinese food, also from the Woodland Nugget.

During the summer of 2010, a man bounced two checks valued at a total of $215 and got a nine-year prison sentence.  The DA in that case could have charged them separately as misdemeanors, but insisted on combining the value to enhance it to a felony.

In 2011, a Woodland man faced petty theft, with a series of prior convictions which enhanced the charge to a felony, for stealing a candy bar from the JC Penny store in the Woodland County Fair Mall.

Deputy DA Jennifer Davis argued that it should not be reduced to a misdemeanor because of his record with the other felony cases, along with the violation of probation. Judge Paul Richardson argued, on the other hand, that this was just a candy bar that was worth $2.95.  There was no need for this case to be a felony.  He reduced it to a misdemeanor in the interest of justice.

Earlier this year, Judge David Rosenberg, in a preliminary hearing, granted the defense’s motion allowing the court to scale down a defendant’s felony charge to a misdemeanor.

Defendant Michael Stanley was accused of felony theft of $10.62 of grocery items from the Woodland Food 4 Less. While the deputy district attorney urged that the defendant’s past thefts warrant a felony conviction, the defense argued that the defendant had no criminal intentions and only committed the crime while homeless and for his pregnant girlfriend.

The Vanguard started the Yolo County Court Watch program in 2010, and while there are a number areas of criticism we have leveled against the District Attorney’s office, perhaps the most egregious has been in the area of putting felony charges onto small petty thefts and shoplifting crimes, either through the use of petty theft with a prior or by charging that the defendant entered the store with the intent to commit a crime, thereby charging the defendant with burglary.

Milena Black, the Policy and Legislative Advocate for Californians for Safety and Justice, a non-profit that seeks to reduce prison and justice system waste, told the Vanguard that taking a case to a preliminary hearing alone costs about $1000 per case, based on research from the State Senate Appropriations Committee.

She noted that is just in court time – the fact is that this also takes up time from the public defender, prosecutor and police officers, “who have to testify that they arrested the guy for stealing a candy bar.”

“That’s over $1000 down the drain because someone stole a candy bar, that’s not a good use of our criminal justice resources,” she said. “We would rather see that money spent prosecuting someone who committed serious and violent crimes.”

Not only does Prop. 47 remove the possibility of charging someone with a third strike offense for petty theft, and remove petty theft and second degree burglary as felonies for merchandise less than $950, but now Robert Ferguson and others sentenced to lengthy prison terms are eligible to be considered for release.

Milena Black told the Vanguard in a phone interview last week, “Assuming they meet the requirements for release… assuming they meet those requirements, they’ll now face a misdemeanor charge instead.”

She noted that there are some exclusions, such as a prior for murder and rape, in which case the individual would not be eligible for release.

Misdemeanor charges tend to move through the system much quicker, as they don’t require preliminary hearings, they often get settled on the first appearance, and they have a reduced sentence. For many of these charges, as a felony the maximum penalty was three years, but as a misdemeanor it is one year.

She said, “I think the biggest changes you’re going to see are refocusing law enforcement resources on serious and violent crime. Not just warehousing people for being addicted to drugs.”

But some worry that releasing these prisoners and reducing sentences from a felony to a misdemeanor will lead to an increase in crime. Milena Black disagrees, “Every offense that was changed by Prop. 47 is literally the lowest level felony you could have, the lowest potential for incarceration, the maximum sentence is three years, but the mean sentence is two years.”

“So we’re not talking about huge reductions, people are already coming out, but they were coming out without any rehabilitative services,” she pointed out. Moreover, they are coming out “without any access to mental health services. So they were coming out just as bad as the way they were coming in. We know that California has some terrible recidivism rates.”

Sixty-five percent of people who come out of prison reoffend within three years.

“Clearly what we were doing is not working,” Ms. Black stated. “It doesn’t make sense to lock someone up for being a drug addict, not get them treatment and expect them to be better.”

She said that Prop. 47 allows the state to re-direct the money, that would have been used to lock people up, to drug treatment to hopefully stop the cycle.

Many have argued that Prop. 47 will cut the legs out of drug court by removing the incentive for people to enroll in the program. Ms. Black countered, “Drug court only works if there is treatment attached to it, and there hasn’t been any money in treatment for drug court in a very long time.”

She added, “There is not any evidence to show that having a felony hanging over somebody’s head is more effective than a misdemeanor for compelling attendance for a drug treatment group.”

She noted that other states, where drug possession is a misdemeanor, have as good if not higher treatment rates than states where drug possession is a felony.

The opposition spent a lot of time arguing that this was not going to free up the type of resources that the proponents were suggesting.

Malena Black noted, however, “It depends on how individual budgets are done.” She added, “If you have $100,000 in police officers’ time this month and some of that time has to be spent in a courtroom testifying in a case where a guy stole a candy bar, it makes sense that if he no longer has to do that” it will free up his time and resources for more serious crime.

This is the first in a series of articles that look into the impact of Prop. 47.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. South of Davis

    David wrote:

    > In March of 2010, Robert Ferguson was sentenced to seven years,

    > eight months in prison for stealing a $3.99 package of shredded

    > cheese from the Woodland Nugget.

    When he should have wrote:

    In March of 2010 after a long life of crime and multiple convictions (including assault with a DEADLY weapon) the courts were left with no other choice to try and stop career criminal Robert Ferguson but to lock him up for a while.

    > The DA in that case could have charged them separately as misdemeanors,

    > but insisted on combining the value to enhance it to a felony.

    It sounds like David  feels that someone who stole everything in a families home should be charged with “petty” theft as long no single item was worth over $900 (and the DA would be wrong to add up the value of the items to make it a felony)…

    1. South of Davis

      More info on the poor “victim” Ferguson:

      “Ferguson was a career criminal who wouldn’t change. He had 13 prior convictions and had spent 22 of the past 27 years behind bars, yet still would not obey the law, the prosecutor said. On Jan. 6, jurors convicted Ferguson of two counts of petty theft for snatching a woman’s wallet from the counter of a 7-Eleven store and for stuffing a bag of Tillamook shredded cheese worth $3.99 into his pants at Woodland’s Nugget Market.”

      It looks like David “forgot” to mention that he also stole a woman’s wallet (and if he got away would have maxed out her credit cards and made her go through the torture of trying to straighten things about with the people in India working at the credit card company call in lines).

      I’m betting that in the 5 of the past 27 years Ferguson was out of jail not a week went by when he didn’t commit a crime.  Living in a safe South Davis Neighborhood with million dollar homes it is easy for David (and others that more often than not live in even nicer and safer neighborhoods) to say we need to let these guys out.

      If David was living in a tough part of Woodland or Sacramento (They almost never move to Pioneer Park or Lake Alhambra)  and his wife and kids were getting robbed and assaulted on a regular basis it would be interesting to see if he still had the same views about letting most criminals out of jail…

        1. hpierce


          SOD was speaking about one individual and their circumstance, and you respond with questioning it as a universal premise.  Nice rhetorical device.  Invalid, but nice.

      1. Miwok

        Kudos for stating the obvious. District Attorneys are vilified for reviewing a criminal record and convicting a criminal based on the pattern of behavior.

        When these people defending this behavior ready the spare room for these career criminals and give them a key to their house, I might listen to some of their arguments.

        As DP mentions below, “you really believe someone should get 25 to life for stealing a $3.99 bag of cheese and someone’s wallet?”

        No – I think they should get a lot more than that. When you or your wife/kid/dad comes home without their wallet are you going to excuse that?

        Parolees and Probationers are told, don’t do that again, and they do. If they really were not a danger, why aren’t they in County Lockup?

        1. Davis Progressive

          “No – I think they should get a lot more than that. When you or your wife/kid/dad comes home without their wallet are you going to excuse that?”

          good idea.

    2. David Greenwald

      Quick response, I’m pretty sure that the assault with a deadly weapon charge was fairly old. The bottom line is that they put him in prison based on the $3.99 theft.

      1. Barack Palin

        This is so typical of bleeding heart liberals.  They cite a few extreme cases and use them to change a whole system that may not be broken, just in need of a few fixes.

        1. Davis Progressive

          that’s an ironic comment.  so you have the prison overcrowding issue, people have been warning about overcarceration for minor crimes for years, could local da’s control themselves?  no.  even now, you don’t want to admit the problems, see this thread.  so you get what you deserve, the voters got fed up.

        2. Tia Will



          The underlying problem is that this is not “just a few extreme cases”.

          This is a huge systemic problem within our prison system in California.

          My partner works for the state Department of Corrections which has been facing extremely costly lawsuits for approximately 20 years largely related to the issues of overcrowding and subsequent inability to provide adequate health care and particularly mental health care to the incarcerated population.

          The oft quoted $60,00o per year per inmate does not begin to describe the total costs including the amount to defend against legal challenges related to over crowding. This is not an area in which I could be considered a “bleeding heart liberal”. I completely believe that individuals should be held accountable for their crimes whether misdemeanors or felonies. Having said that, an ankle bracelet coupled with a work program makes much more sense to me than a $60,000 a year bunk at our expense.


    3. Davis Progressive

      i believe the checks bouncing were separate incidents.  stealing from someone’s home is first degree burglary and a felony regardless of the value.

        1. Davis Progressive

          learned nothing from what?  he bounced two checks a few weeks apart, it’s doubtful he even knew the first check had bounced when he wrote the second check.

  2. justme

    I dont care what the crime is, it is never victimless!  Whether it be the store who is being robbed, the owners of the house that is being robbed, or the next shopper who will now pay $5.00 for that stolen $3.99 shredded cheese…..  If you dont want to face years in prison, here is a grand idea..  Work for what you want!  Or at the very least, get assistance to buy food.  There are many many options for people in need!

    1. Davis Progressive

      “If you dont want to face years in prison, here is a grand idea..  Work for what you want! ”

      the people who changed the law are not the people who are getting felonies, as those people have been disenfranchised for life.  the question is how best to deal with people who commit minor crimes, spending $50k a year to incarcerate them insanity and it doesn’t work.  the recidivism rate remains high.

        1. Barack Palin

          With the higher crime everyone is going to experience insurers will have no choice but to raise rates even higher.  How is that saving the average Joe any money?

        2. Davis Progressive

          something to consider while the limitation is $950 on a misdemeanor – most shoplifting is charged as a misdemeanor now – if that.  so the standard practice is not even arresting people on shoplifting, they get cited and released.  none of that is going to change.  so this idea that crime is going to through the roof or costs are going to increase are without foundation.  more than that, if someone decides to shoplift from multiple stores or the same store multiple times, the da can still charge them with grandtheft if the cumulative is more than $950.  that’s what happened in the bounced check case above, those were two separate checks but they were allowed to charge with a felony.

        3. Davis Progressive

          “With the higher crime everyone is going to experience insurers will have no choice but to raise rates even higher.  How is that saving the average Joe any money?”

          why are you so convinced that the crime is going to be that much higher?

          if you read the article the maximum sentence goes from three years for a felony to one year on a misdemeanor.  but the median term is two years.  so it goes from two years to one year.

          on the other hand, by reducing the number of felons, allows more people to be eligible for work, benefits, etc. that might reduce crime.

          transferring money from incarceration to treatment and prevention may reduce crime as well.

          the theft issues are wobblers anyway, that means that most often they are charged as misdemeanors to begin with, meaning that there will be little change in the law.

          1. Don Shor

            Agreed. There is no method of treatment for drug or alcohol abuse that has any level of efficacy greater than people just quitting on their own. And it is known that many people quit abusing drugs and alcohol due to external pressures (doctor, spouse, or legal issues). Treating most alcohol and drug abuse as an illness that is ‘treatable’ is fallacious and harmful to the individuals and to the rest of us.

        4. Barack Palin

          Please explain to everyone how releasing tens of thousands of drug addicts and criminals is going to reduce crime?  You might want to believe that in your bleeding heart little world, but the fact is crime will go up when there are more criminals on the streets.  It doesn’t take a Rhodes Scholar to deduce that.

      1. Davis Progressive

        “Please explain to everyone how releasing tens of thousands of drug addicts and criminals is going to reduce crime? ”

        for one thing, most of them were going to be released anyway in the next year or so.  so you’re just changing the timing, not the fact that they are released.  second, they will be released without a felony status.  that means they can get jobs, job training, and have a chance.  third, if it frees up resources those are resources available for drug treatment.  it also frees up resources for better monitoring and additional law enforcement.  those things will reduce crime.

        1. justme

          That is assuming the junkies want to get clean and the thieves want to stop stealing…  How many junkies and theives do you know of that are currently out job hunting??????

        2. Davis Progressive

          usually they are former junkies who have cleaned up and then they suddenly realize that their felony status is preventing them from getting a good job.  i’m always amazed how many of my former clients reach that point in life where suddenly they’ve cleaned up.  it does happen.

      2. Grassroots

        Finland agrees so when a person steals, he is put to work so he can maintain himself and pay off the debt to the victim. They have only 2,999 people in prison. Americans make a profit off social  harm and thereby inadvertently create conditions that cause recidivism.

        1. tribeUSA

          Grassroots–good news that a work policy seems to be effective in Finland; something like this seems to make a lot of sense. I have a feeling the ACLU would be all over policies like this; likening it to slavery (but for some reason we instead allow a prison system  where prisoners are  not required to do any work to earn their keep, and have plenty of time and energy to make trouble; prisoner-on-prisoner abuse is commonplace; not an environment favorable to atonement or rehabilitation).

      1. Davis Progressive

        i call bullshit.  most offenders commit crimes at low rates.  a few offenders commit a lot of crimes per year.  so i would have to see the study that you once read to understand their findings. so maybe for high repeat offenders the 20 figure is true, but not the typical offender.

        1. tribeUSA

          Seems like it would be an easy statistic to generate; statewide or nationwide the number of crimes for which a conviction is established divided by the total number of crimes committed. The total number of crimes should include both reported crimes and an estimate of unreported crimes (there are stats on this).

          1. David Greenwald

            There is a problem with that approach at least if I understand how the data look. You have really two different populations – you have a large population of people who have basically committed only one crime and then a smaller population that have committed a large number of crimes. So by simply averaging the crimes by the arrested or convicted, you may end up with a distorted result.

        2. tribeUSA

          DP & DG–there’s nothing distorted about the statistic I proposed at 1:23 am. As long as the statistic is well-defined; it is what it is. Of course there may be some offenders that get away with 20 crimes before getting caught (or are never caught), and others who get caught on their first or second offense. There may be no easy way of knowing exactly what the complete statistical distribution is for the statistic #crimes/#convictions for the population of perps. Values likely range from 1 to over 20 (for a small % of perps); by knowing the state-wide or country-wide totals of the numerator and denominator separately; and using other methods to determine a likely frequency distribution model; rough confidence limits can be put on a range for the median #crimes/#convictions.

          1. David Greenwald

            Actually that’s not true. But it depends on what you want to know, if you want to know how many crimes the typical criminal commits before being caught, knowing that a large number the answer is one and a small number the answer is much higher, complicated the model because you have an uneven distribution. It’s somewhat simple to account for it, but you can’t simply answer it and get a realistic answer.

      2. Tia Will


        Lets suppose for the moment that this unreferenced study is accurate. I would see this as a compelling argument to divert money from our currently over crowded prisons to primary crime prevention in the form of community policing.

  3. WesC

    The cost of keeping 10 of these career petty criminals in prison is over  $620,000/year.  The cost of a Probation Officer I at top step with full benefits is approx $74,817 in Yolo County.  Per a report by the LAO in 2009, the typical regular caseload for a probation officer is about 100-200 cases/officer and the officer meets with each offender about 1-2x/month.  That means the officer who has a caseload of 100 and sees them just once per month has about 5 contacts per day with people on his caseload.  At the other extreme the officer with 200 cases and 2 contacts/month would have 20 contacts with people on his caseload per day.

    If you gave a probation officer a case load of just these 10 criminals (a ridiculously low caseload), he could very easily see each of of these guys three times per week (6 contacts/day) to make sure they were they were staying out of trouble.   This would result in a savings of approx. $545,000/year.

    1. South of Davis

      WesC wrote:

      > The cost of keeping 10 of these career petty criminals in

      > prison is over  $620,000/year.  

      I know the prison guard union never wants anyone to ask this question, but maybe we could save a lot of money by letting ALL drug “users” out of jail and locking up non violent repeat offenders in a camp like setting for a LOT less than $62K a year…

      1. Davis Progressive

        anything to avoid dealing with the real problem – and i have no sympathy for the prison guard union, but the real problem is this: “It doesn’t make sense to lock someone up for being a drug addict, not get them treatment and expect them to be better.”

        1. South of Davis

          DP wrote:

          > but the real problem is this: “It doesn’t make sense

          > to lock someone up for being a drug addict, 

          That is why I want to let them ALL out of jail (not leave them locked up in expensive high security jails and prisons so the prison guards can make $100K plus an extra $100K every year  sneaking stuff in to them from their families while continuing to pay off more politicians than any other group)…

        2. Davis Progressive

          and most can’t succeed without the resources.  unlike you, i have known hundreds of drug offenders and most even when motivated cannot kick the habit alone and most don’t have the resources to do so in treatment programs.

      2. TrueBlueDevil

        Agreed. Sheriff Joe houses them in large tents, and feeds them baloney sandwiches. We can also reduce costs by having them clean freeways, streets, etc., bringing back work details.

        1. Davis Progressive

          no offense, but you’re being hysterical here.  this is going to have impact on the margins.  if you read the article, the impact is about a year’s difference in custody from the maximum misdo charge to the median felony charge.

        2. TrueBlueDevil

          Not so sure, I think San Francisco is a good case study. Ten or more years ago I saw a real life TV crime show where they follow the police around 24/7. In SF, there were numerous crimes that were not followed up on, and then “minor” crimes the police witnessed that they left off with a warning. Then numerous crimes where they arrested the criminal, and the DA refused to prosecute, I guess partly for politics, and partly because they will only prosecute cases with a high chance of success. They caught one robber, who had been previously been caught robbing a citizen, and at the end of the program they showed that no charges were filed against him.

          In the whole one hour program, not one alleged criminal was ever charged, but plenty of crime was being committed all over the place.

  4. ryankelly

    Perhaps if the jail was not so crowded with shoplifters, the Yolo County Sheriff could have time to  monitor guys who are making thousands of phone calls – harassing and stalking their victims from jail – and would have enough staff time to notify the DA/Victim Witness staff and the victims of crimes during business hours before releasing people in the evening, after hours, who then go on to immediately murder their victims.

    1. WesC

      All calls made by detainees who are in jail are made as collect calls.  The recipient simply has to refuse to accept the call if they don’t want to talk to the caller from the jail.  I am sure they have a pretty good idea who might  be calling them from county jail.  As is often the case in domestic violence cases, the victims often seem to have  considerable difficulty in cutting the ties to their tormentor, and thus will continue to accept the collect calls and not notify the DA.

  5. ryankelly

    This still doesn’t explain why the Sheriff’s Office choose to wait until the evening to release the prisoner and seemed to think an email to Victim Witness staff after hours was sufficient notification for the victim and her family.  The email was not read until staff arrived the next morning when the criminal was already on his way to kill the victim.

    I just saying that with these low level shoplifters crowding the jails, maybe the job is too large for the local Sheriff.  Maybe by reducing the number of people he oversees in Yolo County Jail, his staff will be better at monitoring criminals in their care.

    1. justme

      I recently had a family member in jail.  I registered my phone with the jail..  They give you notices several days in advance of a pending release and notice upon release.  I had 3 phone calls leading up to release….

      Thats not even including the VineLink system where you can self serve and find out an inmate staus…

  6. Frankly

    As California expands the percentage of people being supported through the taking of money earned by others, it is no surprise that a prop 47 eventually  passes.  Just consider it yet another tax on the makers.

    This was a move toward the disfunction of much of Europe where petty theft is more an accepted career choice.


  7. WesC

    California is not going down an uncharted path.  Seventeen other states are now participating in a criminal justice reform initiative that invests savings from reducing prison populations into programs to decrease first-time incarceration and recidivism. Sponsored by the Justice Department, the program includes better drug treatment programs and post-release services. Policymakers have geared parole monitoring toward mending behavior with graduated punishments that increase in severity with continued non-compliance.

  8. Clem Kadiddlehopper

    If one thing stands out about Prop 47, it is that it has nothing to do with keeping the streets safer from anybody. Far from it-it actually makes things worse by releasing criminals into the public, and thus will drive up costs overall instead of lowering it.

    Many people think legalizing drugs and decriminalizing offenses will make things better. That only makes sense when the externalities are not factored in. Air pollution doesn’t have a monetary cost to the pollutant, but it taxes the population horribly when folks can’t breathe. More people on the street dealing drugs won’t decrease crime-it’ll increase it as dealers jockey for power with the inevitable violence associated. Prison costs will be reduced, only to be re-assessed as police overtime when homicide cops’ case load increases from all the drug related shootings sure to increase.

    But that’s part of the plan-because pandering to criminals in urban California is how one gets elected. It is a deplorable state of affairs, but if you want to get political office nowadays in some places one has to essentially campaign on coddling criminals. Except it isn’t called that, its called “being friendly to minorities”. Next election cycle, politicians will step all over each other to claim they’re progressive because they supported Prop 47, while they’re also ordering Police HQ to doctor the crime stats on the back end.

    Leroy Drug dealer can now do business confident that if he gets busted he’ll only walk with misdemeanor charges, and if he’s caught with a stolen gun the worst that happens is he pays a fine and moves on. Meanwhile, law abiding citizens with day jobs have to deal with more hassle challenging a parking ticket. Perhaps we should follow the money to find out why that is instead of trusting the blind mantra of “reducing prison costs”. The entire purpose of a prison is because there are some people whose very presence in society poses an incalculably expensive risk for us all.

    1. Matt Williams

      Clem, let me take your first paragraph to the next step. If we look at your point from a Return on Investment perspective, what you have defined that there is a very clear meaningful Return obtained by additional incarcerations. The piece that is missing is a matching very clear and meaningful Investment in order to produce that Return. One way to match the ever increasing Return with an equivalent Investment would be to add a Surcharge component to California’s Income Tax (or Property Tax) that increments up each time an additional inmate enters the doors of a California jail/prison detention center.


    2. Davis Progressive

      “Leroy Drug dealer can now do business confident that if he gets busted he’ll only walk with misdemeanor charges, and if he’s caught with a stolen gun the worst that happens is he pays a fine and moves on.”

      that’s likely not true.  first, drug dealing is still a felony.  and if he’s caught dealing drugs with a stolen gun, he’d immediately have at least a ten year enhancement.

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