Rarely does the underclass see any direct results from an election, but this year the results have been immediate and real, with hundreds of local tweakers and petty thieves — the two being interchangeable — getting out of jail for the holidays, their heavy fines lifted and their charges reduced from felonies to misdemeanors. If Proposition 47 hasn’t entirely dissolved their political apathy, it has at least made them eligible to vote.
Tens of thousands of felons will be released statewide under Proposition 47 in the coming months, saving the state hundreds of millions of dollars in prison costs. 65% of this loot is supposed to go into rehab programs, according to the sponsors of the Safe Neighborhoods and Schools Act (Prop. 47). The residential rehab programs currently in business are mostly full, with long waiting lists, and at any rate tweakers are not likely to sign up for the next available bed unless they have a prison sentence hanging over their head.
We see it every day. The only time a drug convict asks for one of these programs is just before being packed off to Quentin. Then they promise the moon and stars if only they can do day-for-day in rehab. Drug Court also uses the threat of imprisonment to ensure the druggers stay off the white powder.
District Attorney David Eyster, who is on record in opposition to Prop. 47, said he would “Wait and see,” when asked about the prospect of new rehab programs solving the meth scourge. “That’s the pot of gold at the end of the rainbow,” he said. “We’ll have to just wait and see if it’s real or not.”
DA Eyster had entered the courtroom with a bucket of petitions from felons anxious to get out of prison and jail. All week – and for two weeks before – defendants already on the calendar for hearings and other appearances had been taking advantage of the new law, playing their get-out-of-jail-free card, and by Wednesday a special 11:00 Calendar had been initiated to fit in prisoners already serving sentences who had no regularly scheduled court appearances.
Moises Villalpando was up first, looking very eager to begin a drug-free life, his girlfriend waiting impatiently in the gallery. Public Defender Linda Thompson announced that she had filed the petition to get Villalpando’s charges reduced and DA Eyster responded that he had reviewed the petition and had no opposition. Villapando had been serving 16 months from a 2013 case and there was also another 11350 felony (possession) he was doing time for.
Thompson said, “I thought I’d submitted petitions on both cases, but apparently I didn’t.”
Judge Ann Moorman said, “We’ll proceed without it.”
Both were reduced to misdemeanors under Prop. 47 and the judge turned to the DA.
Eyster said, “The people are requesting a bullet.”
A “bullet” in courthouse slang is 365 days, a year in jail. It’s the maximum sentence you can get for a misdemeanor. But under current law it amounts to only 180 days, six months in jail, because for every day you serve you get credit for two. Sentencing somebody to a year in jail when it’s really only six months seems unduly, if not inordinately, inflated – a way of complicating a simple matter – but it helps the lawyers and judges feel superior to the rest of us the same way the Penal Code does (saying “11550” when they mean “tweaking” for instance) and archaic Latin terms (like motions in limine instead of pre-trial motions).
The trouble with using all this jargon and numerical penal code references is that it further complicates the issue when new laws come along that even Their Honors haven’t had time to understand themselves, such as the new Proposition 47 law. We’ll wade into some of that quagmire at the end of this article, when a really good lawyer starts asking some really hard questions, and everybody admits they “don’t really know.”
DA Eyster noted that Mr. Villalpando had already “timed out,” which is to say he’d served 235 days which gave him enough “half-time” credit (and then some) for both cases, which were running concurrent. Judge Moorman said Villalpando's excess credits were enough to “wash” his fines and fees. She ordered him released that very day. Mr. V's girlfriend was so excited she had to be restrained by the bailiff while the correctional officers escorted Villalpando back to the jail to process him out.
Patrick A. Heppe’s cases were called. Both were reduced to misdemeanors and the DA requested a bullet. Heppe had only served 140 days “actual” for a total of 280 days credit, so he won’t be leaving the jail until March 22, but he seemed happy with that, and just for a little Christmas present Judge Moorman struck out a $600 fine.
Then came Cranston Negus, a fugitive the DA had had to extradite from Oregon. Negus's lawyer, Keith Faulder, asked if this case could be passed to the end so he could think through some of the implications of the new law concerning his client.
Michael L. Seifert was called instead.
Judge Moorman said, “How are you doing, Mr. Seifert?”
Ms. Thompson answered for him, “A lot better since he didn’t end up going to the joint.”
DA Eyster said, “He’s eligible under Prop. 47. His sentence can be modified from two years in prison down to 365 days, County.”
“He’s asking for probation,” Thompson said. “It’s now a misdemeanor; why can’t he just get out on probation?”
Eyster said, “He’s had a problem with following the terms of his probation.”
Moorman glanced through Seifert’s probation report and said, “I don’t think probation is appropriate for you Mr. Seifert, so we’ll just reduce it to a bullet with a terminal sentence and with 108 days actual, which gives you credit for 216 days served. Okay, I’ll sign the order.”
John W. Zerangue was called.
“There were no plea bargains in this case,” Eyster said, “and he’s eligible under Prop. 47. We’re requesting a bullet for a second degree burg [courthouse slang for burglary] and a petty theft – neither of which exceeded $950 [the new limit under Prop. 47].”
“I’ll grant the petition,” Moorman said.
“I don’t have the correct number of credits,” Thompson said.
“Well,” Moorman said, “he had 64 actual the day he was sentenced, and there’s been 74 days since then, so 138 times two equals 276 – I’ll give him credit for 276 days.”
Eyster said, “The People ask to reaffirm the restitution order that was in the file.”
Moorman said, “I’ll modify the fine to $300 – no longer $2400 – strike the victim’s restitution fund fine entirely; but the restitution of $607.67 to Ms. Henley is affirmed as a term of his probation. And the other matter was a plea bargain, Mr. Eyster?”
“Yes, judge. It was an armed robbery.”
“This is a fight we’ll have to deal with in court,” Thompson said.
“I’m going to deny the petition in that case,” Moorman said. “We’ll set aside the plea and reinstate proceedings as an attempted second degree robbery. We’ll set a prelim hearing on Count One, reduce Counts Two and Three to misdemeanors and bail will be set at $40,000. What about Mr. Lucas, Jessie L. Lucas?”
Eyster said, “I personally reviewed this case and the form is filled out wrong. That being said, he’s eligible for Prop. 47 and has 272 days actual.”
“I’ll apply some of it to his fines and fees,” Moorman said.
Ms. Thompson was busy inspecting the petition form for the mistake she’d made. Ms. Thompson is virtually synonymous with error.
Moorman continued, “The charge will be reduced to a misdemeanor with 548 days credit for time served and all fines and fees shall be deemed paid. I’m ordering him released today.”
Moorman: “Joshua M. Cole.”
Eyster: “He’s eligible with a bullet.”
Thompson: “He’s got 206 actual on an 11370.”
Moorman: “Mr. Cole I’m going to re-sentence you to 365 days, terminal – that means you’ll have no probation when you get out – and with 412 days credit for time served you’ll be released today; I’m going to strike all your fines and fees as well, due to the excess time you served.”
“Thank you Ms. Moorman,” Cole said brightly as the officer was ushering him out.
“Thank the voters, and stay out of trouble, Mr. Cole,” Moorman replied with equal good cheer.
“Thank you,” Cole murmured to me (I was sitting by the door with a “I voted” sticker on my cane).
“You’re welcome,” I replied, even though I voted against Prop. 47.
Cranston Negus got put over to Friday, and as we waited our old friend Joshua Keyes came up for Prop. 47 eligibility on a regularly scheduled court visit. Readers may remember Mr. Keyes as the guy who got out of jail and went shopping on someone else’s credit card when he was confronted at Sonny’s Donuts by the irate mother of one of his victims. Mr. Keyes had both the credit card thefts reduced to misdemeanors, along with two second degree burgs – each were under $950 – along with possession of meth and apparatus, defrauding an innkeeper, receiving stolen property, and an elaborate form of shoplifting from WalMart and Friedman’s Brothers. Deputy DA Joshua Rosenfeld was asking that all this be fixed with a bullet – 180 actual days in jail.
Mr. Keyes’ lawyer, Al Kubanis, after stomping indignantly around for a minute or two, went along with it. An amount as yet to be determined will be repaid to a Mr. Gillman (for the clothes buying spree) and a Ms. Stump (for the Sonny’s Donuts breakfast).
The case of Cranston Negus was complicated because Negus made a plea bargain, and if he chose to petition the court for a reduction of the remaining charge to a misdemeanor under Prop. 47, the DA was threatening to re-file the charges dismissed in the plea deal.
“Can he do that?” Mr. Faulder wondered.
Moorman said, “It’s a brand new issue, and I haven’t ruled on it. Ms. Saxby [Keith Faulder’s wife] – whom you may know, Mr. Faulder – was in court the other day with a very similar case, and I’ve said some things in court giving my impressions, but within the meaning of the double jeopardy clause it’s not final.”
Faulder: “To the extent I’ve analyzed this it’s very confusing. My client was on a grant of probation and he’s wondering if he’ll go to prison if he admits a violation of that probation, or…”
“…Or,” Moorman said, anticipating the lawyer’s drift, “if you advance the petition to reduce, the People will amend their opposition…?”
“Actually they [the People] said we [the People] have no objection, but we [the People] want the plea set aside,” Faulder clarified. “Now, if we [defense] do not pursue the reduction and Mr. Negus is found in violation of his probation, it would be in violation of a felony probation.”
Moorman: “I see. What the People did is they’re being practical on many levels. Prop. 47 gave them the right” –
Eyster: “It gave us [the People] the option” –
Moorman: “No, it gave them [the People] the right to do that. Some people may not want to go that route. If he goes back on felony probation [rather than advance the Prop. 47 petition]…”
Eyster: “He was a fugitive, he went missing, that’s a violation of his probation.”
Faulder: “He was on probation up there as well and when he got off he called his Probation Officer 15-20 times and his PO said his probation was washed. I didn’t even know he was here in custody until I walked in and saw him here.”
Eyster: “Oops – no, I’m not even gonna say it.”
Moorman: “We’ll have a hearing and decide how to go forward.”
Faulder: “Can I be heard? What about an OR release?”
Moorman: “Where will he go?”
Faulder: “Where will you go?”
Negus: “My parents will come pick me up. Or I could stay here – they’ll get me a room.”
Eyster: “We had to extradite him from Oregon.”
Faulder: “That’s because he didn’t know he was still on probation here.”
Eyster: “Still, we had to extradite him.”
Faulder: “He didn’t fight it, though.”
Eyster: “I’m not going to chase him around, up to Alaska or wherever.”
Faulder: “He’s made all his court dates.”
Moorman: “The reason for the no-bail hold was he’d not informed his Oregon PO of his address, and that alone is enough for me.”
Eyster: “Not only that, but he had appointments he blew off; he left a rehab program without notice to anyone or completing it…”
Moorman: “I’m not gonna release him. I’m not prepared to do that. Do you want to pursue the petition?”
Faulder: “Yes.”
Moorman: “I’ll check the box that says set for hearing and we’ll cram it in on the 12th at 9:00 am – just to confirm for argument, understood?”
Faulder: “Yes, you honor. And if my client wants to admit to the violation of probation, can the Probation Office have a recommendation ready before Christmas?”
Faulder seemed desperate to get the kid home before Santa dropped down the chimney in Oregon. Judge Moorman turned to Probation Officer Monica Vargas.
Vargas: “Sure. How about the 22nd at 9:00?”
Faulder: “Fine.”
Moorman: “Now, is anyone gonna brief the matter?”
Faulder: “I don’t know that there’s a lot of law out there to go into one, so it would have to be a very brief brief, your honor.”
Moorman: “You are going to interpret Prop. 47 and Mr. Eyster will do likewise.”
Faulder: “We’ve never reinstated charges before, your honor.”
Moorman: “He [Negus] was not convicted, he’s on probation; the People wanted to see him complete a grant of probation and they want the benefit of their bargain.”
Faulder: “But the voters of the State of California”—
Eyster: “When the benefits of a plea bargain are set aside” –
Faulder: “It never seems to help the defense!”
Moorman: “I’m giving you a lid, I don’t know when, but it’s gonna get there pretty fast.”
Eyster: “Anytime you have changes in the law, you’ll have case law coming in for years.”
* * *
Bang bang bang, the best legal minds in Mendoland, hammering out new law, hot from the forge, and I felt like a tailor in a smithy. But we’ll keep the reading public updated so they have some idea why all the tweakers are home for holidays and theft and burglary is suddenly on a steep rise.
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