I. Prop 36 Introduction

By now, many of you might have seen the following viral video of 3 suspected shoplifters coming to terms with the new law in California known as Prop 36 which increases the penalties for certain crimes:

Courtesy: KTLA5

Prop 36 was passed by California voters on the November 2024 ballot. For the first time in a long time, the penalties for certain crimes in California are increasing, not decreasing. The key areas where penalties are increasing are theft crimes and drug crimes. How did we get here? Let’s take a quick look at the history of the last 30 to 40 years in California Criminal Justice.

II. A brief history of California Criminal Justice in the 1980s

In the 1980’s the war on drugs led to a significant increases in criminal penalties for drug crimes. California was also in the middle of the “3 strikes” system and the prison population was rapidly on the rise. According to an Los Angeles Times article written by Shawn Pogatchnik published on May 21, 1990, “California outpaced all other states in prison population growth in the 1980s, with the number of inmates jumping 263%, according to Justice Department statistics…the growth rate of California’s inmate population more than doubled the national average of a 113% increase from 1980 to 1989, the department’s Bureau of Justice Statistics reported.”

III. California Criminal Justice in the 1990s

Starting in the mid 1990’s, the last 30 years in California, we have seen a lot of reform to reduce penalties in criminal court. Treatment for people with substance abuse problems, treatment for mental health disorders, special programs for Veterans, Judicial Diversion, and an overall political climate that favored the reduction of jail and prison sentences and an increase in treatment and rehabilitation.

Many of these diversion programs remain in place today and we have helped many clients take advantage of these opportunities to obtain alternative sentencing. In many instances our clients have been able to avoid jail and often end up with a clean record. To see if your case qualifies for these diversion programs, please give our offices a call at 800-797-8406 or email us at email@socaldefenselawyers.com.

IV. Proposition 47

The most recent major change reducing criminal penalties was Prop 47. Prop 47 reduced many crimes that were previously felonies down to misdemeanors. Most notably drug possession and theft crimes. Prosecutors and law enforcement were strongly opposed to these ‘soft on crime” changes to the system. The defense community and the general public supported these changes under the belief that drug problems and low-level theft crimes were more often than not the result of social challenges than true criminal enterprise. The theory was that if we helped people in need, crime could be reduced without the need for incarceration.

These policies ultimately failed to reduce crime and in hindsight most members of the public felt like this was a step too far. Shoplifting and open drug use have overrun many of California’s metropolitan areas. Years from now when we look back at the history of criminal justice in California, Prop 47 might be viewed as the straw that broke the camel’s back and shifted the momentum from the reduction of punishment for criminal charges back to the increase in punishment.

V. Proposition 36

Prop 36 was passed by 60% of California voters in 2024. To better understand Prop 36, please see the following information bulletin published the Office of the District Attorney County of Riverside:

According to the Office of the District Attorney County of Riverside:

“Sentencing for these wobblers varies. A first offense usually results in county jail time, while subsequent offenses may lead to state prison sentences. Importantly, there are no age limits or time restrictions on prior convictions that could qualify an individual for these enhanced charges. An arrest on either the drug or theft felony charge necessitates DNA collection, as well as a review by a judge assessing the defendant’s risk to public safety to any pre-trial release from jail.

For the treatment mandated felony found in the Health and Safety Code section 1395, the offender can opt for drug treatment to avoid jail or prison time, and if they complete treatment, they do not suffer a conviction for the offense. These changes represent a significant shift in California’s approach to prosecuting specific crimes.

Beyond the new wobbler offenses, Prop. 36 significantly increases penalties for fentanyl trafficking, especially large-scale operations, and imposes stricter sentences for drug dealing involving firearms. This reflects a determined effort to combat the opioid crisis and highlights the serious dangers associated with drug trafficking.

The new law also mandates that courts explicitly warn convicted hard drug dealers of potential murder charges if someone dies due to their drug trafficking activities—a “Watson-style” advisement intended to deter such dangerous behavior. The Watson advisement has been used in DUI cases to tell those convicted of a DUI that they can be charged with murder if they drive under the influence, and someone dies as a result.

Regarding property crimes, the new law allows for the aggregation of stolen property value from multiple thefts. This means that multiple smaller thefts can be combined to determine if the overall value meets the felony threshold. Prop. 36 also increases penalties for property crimes resulting in losses exceeding $50,000 and for crimes involving multiple perpetrators. These changes aim to deter large-scale property crime and organized criminal activity. The overall effect of these provisions is a more robust and comprehensive approach to prosecuting drug and theft offenses in California.”

VI. We Can Help

With Prop 36 in full effect this year, if you are facing a criminal charge, you could be facing felony penalties which include up to 3 years in custody even for a case that would have been a misdemeanor under the old law. It is imperative that you hire an experience criminal defense attorney to help you get the best possible outcome for your case. Attorney Mark Gallagher has had over 20 years of experience fighting for Californian’s rights. If you need help with a criminal matter, call our offices at 800-797-8406, visit our website at https://www.socaldefenselawyers.com or email us at email@socaldefenselawyers.com.