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SB-82 Petty theft.(2021-2022)

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Date Published: 03/18/2021 09:00 PM
SB82:v97#DOCUMENT

Amended  IN  Senate  March 18, 2021
Amended  IN  Senate  February 08, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 82

Introduced by Senator Skinner

December 15, 2020

An act to amend Sections 486, 488, and 490 of, and to add Section 1170.98 to, the Penal Code, relating to theft.


LEGISLATIVE COUNSEL'S DIGEST


SB 82, as amended, Skinner. Petty theft.
Existing law, the Safe Neighborhoods and Schools Act, enacted as an initiative statute by Proposition 47, as approved by the electors at the November 4, 2014, statewide general election, requires the theft of money, labor, or property to be considered petty theft, punishable as a misdemeanor by up to 6 months in county jail, a fine of up to $1,000, or both, whenever the value of the property taken does not exceed $950 or in other cases that are specifically defined as grand theft.
This bill would define the crime of petty theft in the first degree as taking the property from the person of another or from a commercial establishment by means of force or fear without the use of a deadly weapon or great bodily injury. The bill would specifically exclude from the crime of petty theft in the first degree acting in concert with one or more persons to steal merchandise from one or more merchant’s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value. The bill would define the crime of petty theft in the 2nd degree as all other petty theft. The bill would impose a penalty of imprisonment in county jail for up to one year, a $1,000 fine, or both, for petty theft in the first degree and would prohibit an act of petty theft from being charged as robbery or burglary. By creating a new crime, this bill would impose a state-mandated local program.
This bill would provide a means of vacating the sentence of, and resentencing, a currently incarcerated defendant who had been convicted of robbery, who was sentenced under an alternative sentencing scheme based on one or more prior convictions for robbery, or whose sentence includes an enhancement based on one or more prior convictions for robbery and who would not be convicted of robbery based on the changes made in this bill. The bill would also provide a means of vacating the sentence of, and resentencing, a person who had previously served a term of imprisonment for robbery and who would not be convicted of robbery based on the changes made in this bill. By requiring the participation of district attorneys and public defenders in the resentencing process, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares both of the following:
(a) The Penal Code Review Committee has concluded that the current law regarding theft is out of date and leads to unjust results, warranting reform.
(b) It is the intent of the Legislature to reform the theft statutes to ensure fair punishment and to apply those changes retroactively.

SEC. 2.

 Section 486 of the Penal Code is amended to read:

486.
 Theft is divided into three degrees, the first of which is termed grand theft; the second, petty theft in the first degree; and the third petty theft in the second degree.

SEC. 3.

 Section 488 of the Penal Code is amended to read:

488.
 (a) Theft in other cases is petty theft.
(b) (1) Petty theft in the first degree is taking property from the person of another or from a commercial establishment by means of force or fear without the use of a deadly weapon or causing great bodily injury.
(2) This subdivision does not apply to organized retail theft in violation of subdivision (a) of Section 490.4.

(2)

(3) An act of petty theft in the first degree shall be charged as such, and shall not be charged as robbery or burglary.
(c) Petty theft in the second degree is all petty theft that is not in the first degree.

SEC. 4.

 Section 490 of the Penal Code is amended to read:

490.
 (a) Petty theft in the first degree is punishable by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or both.
(b) Petty theft in the second degree is punishable by fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding six months, or both.

SEC. 5.

 Section 1170.98 is added to the Penal Code, to read:

1170.98.
 (a) A person currently serving a sentence in state prison or in a county jail pursuant to subdivision (h) of Section 1170 may file a petition to have the petitioner’s conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:
(1) The person is currently serving a sentence based on a conviction for robbery pursuant to Section 211, the person was sentenced under an alternative sentencing scheme based on one or more prior convictions for robbery, or the person’s sentence includes an enhancement based on one or more prior convictions for robbery.
(2) The person did not use a deadly weapon or cause great bodily injury during the robbery that is the basis of the current conviction or one or more of the prior convictions used in sentencing the individual.
(3) The person could not be convicted of robbery based on the changes to Sections 486 and 488 effective January 1, 2022.
(b) Any other person previously convicted of robbery pursuant to Section 211 may file a petition to have the petitioner’s conviction vacated when all of the following conditions apply:
(1) The person did not use a deadly weapon or cause great bodily injury during the robbery.
(2) The person could not be convicted of robbery based on the changes to Sections 486 and 488 that became effective January 1, 2022.
(c) (1) The petition shall be filed with the presiding judge of the court that sentenced the petitioner and shall be served by the petitioner on the district attorney, or on the agency that prosecuted the petitioner, and on the attorney who represented the petitioner in the trial court or on the public defender of the county where the petitioner was convicted. The presiding judge may assign the petition to the judge that originally sentenced the petitioner or another judge designated to review such petitions. The petition shall include all of the following:
(A) A declaration by the petitioner that the petitioner is eligible for relief under this section, based on the requirements of subdivision (a) or (b).
(B) The superior court case number and year of the petitioner’s conviction.
(C) Whether the petitioner requests the appointment of counsel.
(2) If any of the information required by this subdivision is missing from the petition and cannot be readily ascertained by the court, the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.
(d) The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor’s response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause.
(e) (1) Within 60 days after the order to show cause has issued, the court shall hold a hearing to determine whether to vacate the conviction and, if the petition is filed pursuant to subdivision (a), whether to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously sentenced, provided that the new sentence, if any, is not greater than the initial sentence. This deadline shall be extended for good cause.
(2) The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have the conviction vacated and for resentencing.
(3) At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction shall be vacated and the petitioner shall be resentenced on the remaining charges. The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.
(f) This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner.
(g) A person who is resentenced pursuant to this section shall be given credit for time served.

SEC. 6.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.