By Vanguard Capitol Staff
STATE CAPITOL – In response to a new report from a state “Committee on the Revision of the Penal Code” – which recommended 10 changes to the penal code – state Sen. Nancy Skinner (D-Berkeley) late Tuesday announced two significant criminal justice reform bills.
Skinner is a member of the committee, which was formed to comprehensively examine California’s Penal Code and issue recommendations for reforming it.
Skinner introduced SB 81, which would reform the state’s use of sentencing enhancements that add years to prison sentences. Studies have shown those enhancements do not improve public safety, she maintains.
SB 81 would create a set of guidelines for courts so that sentence enhancements would no longer be applied to nonviolent offenses and certain other cases unless a judge determines that the enhancements are necessary to protect public safety.
SB 82, the second measure authored by Skinner, updates a 150-year-old statute that has allowed prosecutors to elevate a petty theft charge into felony robbery. SB 82 establishes a “clear distinction between theft and robbery for cases when no deadly weapon was used and no one was seriously injured.”
“Serving on the Committee on the Revision of the Penal Code gave me the opportunity to engage with experts and advocates to identify 
commonsense proposals for criminal justice reform,” Sen. Skinner said.
“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. And SB 82 will help ensure that in the case of theft, the punishment meets the crime,” she added.
She noted that the 80 percent of people in state prisons are “serving a sentence term that includes extra time added on by a sentencing enhancement. In some cases, the amount of prison time added due to sentencing enhancements is five to 10 years or more — longer than the term for the underlying conviction.”
She added “research reviewed by the Penal Code Revision Committee showed no evidence that the proliferation of sentencing enhancements in California has made the state safer, and the committee’s report noted “enhancements are applied disproportionately against people of color and people suffering from mental illness.”
Former Governor Jerry Brown, Skinner added, said California should “get rid of all of the enhancements” or change the penal code so that judges are steered toward not imposing enhancements.
Judges, Skinner said, currently have the authority to dismiss most sentencing enhancements but rarely exercise that discretion, in part because California law does not provide clear guidance on what judges should do, claims Skinner, and quotes the state Supreme Court calling sentencing enhancements an “amorphous concept.”
Skinner detailed her new legislative proposals:
“SB 81 addresses this lack of clarity on the use of enhancements by establishing a presumption that directs judges to not use sentencing enhancements — unless there is clear and convincing evidence that not applying the enhancement would result in endangerment to the public — in the following circumstances:
- “The underlying conviction involves a nonviolent offense or did not include a loaded firearm
- “Enforcing the sentencing enhancement would result in a disparate racial impact
- “The enhancement is based on a prior conviction that is more than five years old
- “The underlying conviction is connected to mental health issues or to prior victimization or childhood trauma
- “The defendant was a juvenile when they committed the underlying offense or prior offenses
- “Multiple enhancements are alleged in a single case or the total sentence is more than 20 years.”
“The Penal Code Revision Committee is absolutely correct: Petty theft, like shoplifting, should never be treated as felony robbery,” Sen. Skinner said. “California’s robbery statute hasn’t been updated since 1872. It’s time for us to make sure the punishment is proportionate to the crime committed.”
“Under California’s 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.
“Data shows 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.”
SB 82 would:
- “Create a new category of ‘petty theft in the first degree’ for thefts under $950 that may involve force or fear but do not result in serious injury or involve the use of a deadly weapon. This new category would be punishable by up to one year in jail and/or a $1,000 fine
- “Categorize petty theft that does not involve force or fear as ‘petty theft in the second degree,’ which remains punishable by jail time of up to six months and/or $1,000 fine
- “Prohibit either category of petty theft from being charged as robbery or burglary
- “Apply this change retroactively, allowing those convicted of robbery to apply for resentencing if they meet the criteria.”
Members of the Committee on the Revision of the Penal Code include judges, a law school dean, legislators, and others, who discussed at length the need to reform California’s 150-year-old robbery statute, because it allows prosecutors to elevate petty theft charges into felony robbery cases. SB 82 was crafted in response
New York, Oregon, Illinois, and Texas are among the states that have enacted reforms similar to SB 82, Skinner said.
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Little doubt the timing of the introduction of SB 81 was tied to the previous day’s ruling in the Gascón case in favor of the L.A. County Deputy DAs. That ruling will be cited by supporters of the bill as the reason legislation is necessary. So, paradoxically, the L.A. lawsuit may end up resulting in a change in statewide policy being advocated by criminal justice reformers and progressive DAs.
It may also lead to a backlash from voters, who believe that their decisions are being undermined by the legislature.
I believe this may be (yet) another example of a deepening chasm between elected officials, and those that they supposedly represent.
What decisions are you referring to that relate to this bill?
Three strikes?
But even if that’s not technically correct, I don’t necessarily assume that voters drill down to the level of detail that you might.
Voters often make decisions on general impressions/direction.
I also believe that there’s chasms developing between elected officials and voters (and perhaps even non-voters) on other issues, as well.
Not an issue. SB 81 specifically says, “This subdivision does not apply to an enhancement if dismissal of that enhancement is prohibited by any initiative statute.”
That’s exactly the type of technical comment that most voters don’t consider. Instead, they vote based upon general impressions – which are probably more accurate regarding their overall views.
Unfortunately for most voters, the system only presents them with two (predetermined / realistic) “choices”. The problem is the system itself, which leads to that.
To clarify, the problem is not necessarily that there’s only two choices.
The problem is the system/interests which led to those two choices.
And let’s not even go into how propositions get placed on the ballot, and the interests behind them. That process is often much worse.
If I was running a political blog, that’s the type of issue that I’d explore, rather than an endless parade of leftist (or right-leaning) propaganda (with the resulting nonsense which predictably occurs as a result).
You actually can’t undermine voter decisions that way. If the voters pass a measure only the voters can change that measure.
I believe that you can, as evidenced by the “new category” (e.g., below $950). Perhaps the “force and fear” portion (and retroactive application), as well.
As such, you can “chip away” at what voters intended.
I don’t have any idea what you are talking about – the amount was set by Prop 47 passed by the voters. What this law would do is eliminate a loophole by which DA’s could still charge petty theft as a felony.
It’s your article.
Hell – I might have voted for Proposition 47, for all I know.
I don’t pay as close attention to these things as you do. It’s a general impression.
The phrase “involve force or fear” may be more relevant, if that’s the “loophole” that you’re referring to.
(A) It’s not my article
(B) It doesn’t change any law governed by a voter initiative
and (C) If anything it closes a loophole exploited by prosecutors to subvert voter intention of Prop 47
I guess you’re referring to the “force and fear” loophole.
Right – I’m sure that voters intended to eliminate that. 🙂
What is it that you think was a voter-passed initiative that this undoes?
“Vanguard Capitol Staff” – sounds official.
But, it’s probably more accurate than the use of “we” that sometimes arises on here. Especially when “we” doesn’t always include Don, for example. 🙂
But it is a more carefully-written article than some of what we’ve seen on here.
And it describes a “new category”.
The legislature can establish new categories unless a voter initiative specifically defines the statute.
Shouldn’t that be “and”, not “or” ?
Sentences are for individuals — how on Earth would you include a disparate racial impact, which is a broad city, county or even statewide measure, in an individual sentencing?
Isn’t that a ‘get out of jail free’ card? Can’t everyone pretty much prove ‘prior victimization or childhood trauma’?
How about when someone yells a racial slur during the commission of another crime when they may be drunk or filled with adrenelin, but made a verbal threat during the incident, even when no force was used and no weapon was involved. Can they be charged with a greater crime? Are hate crime laws not themselves enhancements?
There is a difference between “status” enhancement and “Conduct enhancement.”
Well . . .
Create a new category of ‘petty theft in the first degree’ for thefts under $950 that may involve force or fear but do not result in serious injury or involve the use of a deadly weapon. This new category would be punishable by up to one year in jail and/or a $1,000 fine
What if the perpetrator decided to steal $900 from me and threatened me and I decide to just beat the holy crap out of the guy can I put him in the intensive Care unit for 6 months am I responsible for the bill? What if I got carried away and killed him would I be charged with a crime then and if so what would I be charged with and why?
It seems to me changes to law like this does nothing but encourage lawlessness.
I’d suggest that you just warn him, by explaining that he might be fined $1,000 for taking $900 from you by force or threat. (Resulting in a loss of $100.) 🙂
The underlying conviction involves a nonviolent offense or did not include a loaded firearm
what is the definition of a loaded firearm is that a projectile in the chamber or does that mean an unloaded chamber but yet a magazine with projectiles within the magazine
” that has a cartridge, a detonator, or powder in the chamber, magazine, cylinder, or clip.”