Proposition 47: The Safe Neighborhood and Schools Act

election-buttonProposition 47, on this November’s ballot, would bring sweeping changes to how various crimes in California are classified.  If passed by California voters, Proposition 47 would reduce the classification of most “nonserious and nonviolent property and drug crimes” from a felony to a misdemeanor. 

The single greatest area of impact this act would have is the reclassification of the personal use of most drugs from a felony to a misdemeanor.  This, in and of itself, is a huge step in a positive direction, on a multitude of levels.  Other crimes that would be reclassified as misdemeanors are: Shoplifting, where the value of property stolen does not exceed $950; grand theft, where the value of the stolen property does not exceed $950; receiving stolen property, where the value of the property does not exceed $950; forgery, where the value of forged check, bond or bill does not exceed $950; fraud, where the value of the fraudulent check, draft or order does not exceed $950; and writing a bad check, where the value of the check does not exceed $950. 

Further, this act would allow for re-sentencing for anyone currently serving a prison sentence for the aforementioned crimes, which could be as many as 10,000 inmates. The act would require a “thorough review” of criminal history and risk assessment of any individuals before re-sentencing to ensure that they do not pose a risk to the public.

However, one major caveat to the above relates to defendants who have prior convictions for murder, rape, certain sex offenses or certain gun crimes, as they can still receive felony sentencing for the above-enumerated crimes. 

This measure could have a huge fiscal impact at the state and county level, with annual savings projected to be in the hundreds of millions of dollars.  Savings at the state level would be passed on to school truancy and dropout prevention, mental health and substance abuse treatment, and victim services, where the money would generate exponentially greater utility than it would incarcerating individuals convicted of the above offenses.  

While reservations about some aspects of this ballot measure, such as reclassifying the theft of a firearm costing less than $950 to a misdemeanor, have been expressed, it is important to remember that Proposition 47 is a minor tweak to California’s Penal and Health & Safety Codes.  The counter-argument to the above is that in the vast majority of cases, the theft of a firearm would also constitute burglary, which would remain felonious conduct, and anyone who breaks into a commercial building or residential dwelling to steal a firearm, still faces the potential of a felony strike conviction, depending on the facts of the case. 

On the whole, I think Proposition 47 is a major step in the right direction from both a fiscal and moral perspective, especially as it relates to the personal use of controlled substances, and how we penalize such conduct. 

 

People v. Baniani: A Huge Win for California’s Medical Marijuana Patients and Collectives- Law Office of Scott C. Thomas Press Release

Santa-Ana-Court-of-AppealsOn August 22, 2014, the Court of Appeal, Fourth District, Division Three, rendered a landmark opinion in support of the rights of qualified patients and collectives in having an affirmative defense under California’s Medical Marijuana Program Act (MMPA). 

Attorney Scott C. Thomas, of the Law Office of Scott C. Thomas, and Attorney Christopher Glew, of the Law Offices of Glew & Kim, were appellate counsel on the matter. 

According to Mr. Thomas, “This is a landmark ruling which affirms the rights of qualified patients, who are members of a collective, to have a defense under the MMPA.  No longer can prosecutors make the argument that anytime money is exchanged for marijuana, between members of a collective, the defenses afforded under the MMPA are voided because any monetary transactions are per se unlawful, or that these transactions constitute a ‘profit,’ in violation of the law.  The case clearly spells out that anytime a criminal defendant raises a reasonable doubt as to his or her qualified patient status, they are afforded a defense under the MMPA, and the question of whether or not the collective made a profit is a question for the jury, not the trial judge, to decide.” 

“This decision is another giant step toward legitimacy for medical marijuana patients,” said Mr. Glew. “It has the potential to end the prosecution of collectives that are attempting to follow the ambiguous laws.”

Baniani, the founder of Herbal Run, a medical marijuana collective in Newport Beach, CA, was represented by Mr. Glew during his first trial, and was afforded a defense under the MMPA.  Accordingly,the jury on his first trial hung on both the sale of marijuana, and possession of marijuana for sale, charges.  At Mr. Banianai’s second trial, the trial court denied Mr. Baniani a defense under the MMPA, because the court found that there was evidence Mr. Baniani charged for marijuana.  Mr. Baniani was subsequently convicted of possession of marijuana for sale.

The Court of Appeal reversed the trial court’s ruling, with regard to the denial of a defense under the MMPA, and remanded it for a new trial, agreeing with appellate counsel’s assertion that the denial of a defense under the MMPA was erroneous and prejudicial to Mr. Baniani, especially in light of the fact that at Mr. Baniani’s first trial, when he was afforded a defense under the MMPA, the jury hung on both counts. 

“This victory follows in the steps of the Colvin and Jackson decisions, and will put an end to prosecutors arguing that qualified patients, who collectively associate to cultivate marijuana, are not afforded a defense under the MMPA.  Now prosecutors will have to put the issue before a jury, who will receive an MMPA affirmative defense jury instruction, and prove their case beyond a reasonable doubt.  It’s a big win for the medical marijuana community,” said Mr. Thomas.

Case reference number G048535 (Super. Ct. No. 10HF1852)

The opinion, which has been certified for publication, can be found here: http://www.courts.ca.gov/opinions/documents/G048535.PDF