TOM FUDGE: You are listening to Midday Edition on KPBS. I am Tom Fudge. In last week’s election, one of the statewide propositions that passed was Prop 47. It has reduced many nonviolent property and drug possession crimes from felonies to misdemeanors. The legislative analyst has said the reduced jail time of this, will free up more than a billion dollars over five years to be spent on education, substance abuse, and programs like that. Former San Diego Police Chief Bill Lansdowne is one of the initiatives big backers. The change in the law will lead to many appeals for resentencing and it will also cause the San Diego City Attorney who prosecutes misdemeanors to have a lot more work. Joining me to talk about the consequences for local law enforcement of Proposition 47 are Dave Greenberg and Marlea Dell'Anno. Dave Greenberg is chief Deputy District Attorney for San Diego County. Thank you for coming in. DAVE GREENBERG: You are welcome. TOM FUDGE: And Marlea Dell'Anno leads the San Diego City Attorney's Criminal Division Office. Thank you very much for coming in. MARLEA DELL'ANNO: Thank you for having me. TOM FUDGE: Well, let's talk about what is happening right now in response to Proposition 47 which is retroactive in the sense that people's already sentence will benefit from sentence reduction. Dave, it has been released in the county due to Prop 47? DAVE GREENBERG: Not as a result of a sentence reduction. Um, we are still just getting petitions right now from the public defender, the people that would that have been released were those folks that were pending cases whether they had not been sentenced yet or pled guilty. We filed new misdemeanor complaints against them and many of those people have pled guilty and are no long in custody as a result of that. TOM FUDGE: And from the City Attorney's Office, any comment on that sort of what you are having to deal with right now Marlea? MARLEA DELL'ANNO: Right now we are taking the cases as they come in. It has only been a few days so we haven't seen a huge influx yet. I think we will have a better idea of the numbers in a few weeks. TOM FUDGE: Well, um Dave give us one example of a property or a drug crime where the consequences have changed for the people who commit the crime? DAVE GREENBERG: All of the drug crimes. Simple possessions of drugs. If you have if you possess drugs it is a misdemeanor unless you have a very small selection of prior convictions. Either you are six registrant or just a couple of other violent crimes, other than that is it is now a straight misdemeanor and it doesn't matter what the criminal history has been and the same thing with the thefts. TOM FUDGE: Thefts, forgeries also the case. It seems that $950 is kind of the magic number as far as I can tell, if you are a theft or forgery is under that figure, it is a misdemeanor do I have that right? DAVE GREENBERG: You are correct. TOM FUDGE: Okay, um. Um, sorry (LAUGHTER) Marlea, now that so many more crimes are misdemeanors and not felonies, how does that affect your work? Are you getting more cases? Or will you get a lot more cases? MARLEA DELL'ANNO: Well, we are expecting a significant increase in our caseload, we have looked at the numbers and we are expecting about 3,000 more cases in our office. We process about 20,000 misdemeanors in the city of San Diego. So we are looking at about a 15 percent increase in our caseload so it is significant. TOM FUDGE: Are you going to get any help on that? Or are you going to get any more money or lawyers? MARLEA DELL'ANNO: Well, Tom, right now very luckily for our office we work very closely with the District Attorney's Office so the two offices between us, we are looking at ways to support each other through the change. So we are looking at a number of different options. Obviously down the line once we have a little bit more time when we have more time to assess what our needs are, there may be a point where we need to go and seek additional seek additional resources. We are going to wait and see what our numbers look like before we go there. TOM FUDGE: Well, Dave Greenberg, is there anything the DA's Office can do to help them out? DAVE GREENBERG: We have talked as Marlea said, we work real well together there is nothing concrete yet, but if they need additional resources we will be more than happy to provide them with additional resources to make sure that the community is going to be safe. Our number one goal is public safety. TOM FUDGE: Now, for officers this is actually a question that I put to Chief Zimmerman that was just on the show. For police officers is arresting someone with a misdemeanor different um than arresting them for a felony? Dave, do you need a higher or a lower standard of proof? DAVE GREENBERG: The standard of proof is the same, it is probable cause. It is probable cause that a crime was committed. For either of our departments to charge somebody we have to be able to prove that the case is beyond a reasonable doubt. So the real big change between the felony and the misdemeanor for the officers in the street is that in the past when they have arrested somebody for a felony they are going to book them into county jail. Now they are arresting them for misdemeanors, they don't get booked into the county jail, so they are going to be given a citation to appear in court. You committed this crime and you promise to appear in court in say 45 days, if our office file the case, the person is supposed to be there in 45 days. The likelihood that those felony defenders will be there in 45 days is not too high and there will be misdemeanor warrants out for their arrest. TOM FUDGE: A lot more warrants, would you agree with that Marlea? MARLEA DELL'ANNO: Absolutely. TOM FUDGE: Okay. Um, getting back to arresting someone for a misdemeanor as opposed to a felony. Dave, maybe you can help me out on this. I have been given the impression, this is part of what the chief said, that if it is a misdemeanor it has to be witnessed by a police officer or by another witness, the crime has to be seen, is that correct? DAVE GREENBERG: To arrest somebody, yes. TOM FUDGE: Is that the case, or is that not the case if it is a felony? DAVE GREENBERG: It is a felony it doesn't have to be committed in your presence, but someone is going to have to give you information so that you have probable cause to believe that that person committed the crime and then you would be able to arrest them. TOM FUDGE: I guess my point in my main question is is this something that police are going to have to be trained on? Are they going to have to do their jobs differently? DAVE GREENBERG: No, was when they go through the academy and all of their training they know when you can arrest somebody and when you can't. What it really does is there are a lot more crimes that they cannot arrest people for because they were not committed in their presence. TOM FUDGE: My guests here David Greenberg and Marlea Dell'Anno and Dave Greenberg is chief Deputy District Attorney for San Diego County and Marlea Dell'Anno leads the Criminal Division for the San Diego City Attorney's Office. We are talking about the effects of Prop 47 which was passed by voters in last week’s election. You know, we spent a little bit of time speaking with former Police Chief Lansdowne who is a big supporter of this, and he made the point Dave this is not going to be a get out of jail free card. Judges are going to have discretion when it comes to deciding whether somebody should be released if the crime they are arrested for has now become a misdemeanor. Is that correct? DAVE GREENBERG: Well, I was here a few weeks ago with the chief and I disagreed with him then, and I disagree with him now. On all of the cases where the petitions are being refiled we are going to have to decide if they are going to be resentenced. The criteria for dangerousness that a judge would have to make is that that person is going to commit one of several types of crimes, not that they might, but they would. Those are those crimes where you would have to register and a sex offender and for instance murder, assaulting a police officer with a firearm, possessing a weapon of mass destruction. If a judge doesn't believe that that person in front of them in court is going to commit that crime under the law, under the new initiative they are not a danger and they will get resentenced and they will be released. TOM FUDGE: So do you feel that as a result of this people in San Diego are going to be less safe? DAVE GREENBERG: I think that we are going to see a rise in the property crimes, we are going to have people getting out that won't necessarily get the treatment that they need. One of the interesting things in the initiative, it is not going to be until July of 2016 that the State is going to determine what the savings are. So for about two years, the savings, if there are any savings will not be passed on to anybody. So all of these folks are getting the benefit, so to speak, of the new initiative, they are being released, but there is no funding for any mental health treatment, drug treatment and that's not a good thing. TOM FUDGE: But that's not we have heard the exact opposite from supports of Prop 47, we have heard there is going to be $200 million a year in additional money for the things like education, things like drug treatment, are you disagreeing with that? DAVE GREENBERG: What I'm saying is I don't know how much money there is going to be or not, but the determination of how much money will or will not be saved is in the going to be made until the end of July 2016. So right now it is November 2014. Once if there is savings and a determination has been made, people will have to apply for grants to get that, so there is not going to be money for the entire group of people impacted for a minimum of 18 months to two years. TOM FUDGE: Well, Marlea Dell'Anno, why don't you tell us how you think Prop 47 is now going to affect your daily work and whether it is going to cause more recidivism among California criminals or less? MARLEA DELL'ANNO: You know as I said before it is a huge increase in our caseload and 15 percent increase, that's a pretty significant shift for us and we are going to have to figure out a way to deal with that. In terms of what the consequences are, I mean I understand the impotence behind that and clearly the voters have spoken and we obviously appreciate that, sometimes I think laws have unintended consequences and I am I am hopeful that we will see some treatment on the other end of this, but I have to agree with Dave on this, I have many concerns, many times what we were able to use to get people into treatment was kind of the stick of having um a jail sentence and we always as prosecutors were kind of hoping that the individual would choose treatment over custody. Now, the choice is treatment or nothing, and so you can imagine that's a concern um for us in terms of are we really going to see the effects we are hoping for which is people being rehabilitated and getting off of drugs and staying away from crimes that are usually associated with drug use like increased property crimes. TOM FUDGE: Okay. So you are arguing that that even if there is more money for drug treatment, you don't have to the stick to force them to go into drug treatment. MARLEA DELL'ANNO: We don't, so that becomes a disadvantage. DAVE GREENBERG: I can give you an example that um, an example would be the city runs a program called the serial inebriate program for people that have alcohol problems, and they offer, they are looking at 180 days. They are offering them, we will let you out of jail today if you go into treatment. If you don't, you are going to do 90 days in jail or 180 days in jail. The vast majority of people when offered that do not take the treatment, they do not want to get out, and they just say I want to do my time. That's really what you are also going to see with a lot of people with serious drug addictions, the maximum sentence is 346 days in jail with good time custody credits actually they can only serve 182 days in jail. When you look at a lot of these folks in their criminal histories and addictions, it is not a whole lot of time for them and they are not going to be interested in drug treatment. TOM FUDGE: Getting back to the subject of whether people are applying for shorter sentences under the Prop 47, I mean, Dave has your office heard from a lot of people? Is everybody doing this? DAVE GREENBERG: Well, we have not when you say we have not heard they are not getting a shorter sentence, they are getting their sentence resentenced. So now it would be a misdemeanor. We are not heard anything yet from retained lawyers, but we have worked with the public defender. The public defender has sent us many petitions, we are expecting by the end of this week to have received 4800 petitions for resentencing’s for about 1800 offenders. So 1800 people who are currently in custody are petitioning to have their cases reduced to a misdemeanor, and the total number of cases is 4800 because most of those people have multiple cases because as we have talked to people before, most people who are in custody whether they are in jail or prison, it is not their first offense, it is not their first conviction, they have multiple convictions. So that's why you have 1800 people with 4800 petitions. TOM FUDGE: You know it sound like both of you are quite skeptical of Prop 47 and what the effects might be, but um in a situation like Californians where the federal courts are tell us that you can't have so many people in prison, um, you know a lot of this is going to have to be restructured so we are dealing with folks at the local level putting them into jail instead of prison. Marlea, doesn't Prop 47 fit into that scheme? MARLEA DELL'ANNO: Actually, I wouldn't characterize what I think is skeptical. I'm hopeful, but the reality of it is you can't just change the name of something and expect that suddenly you are going to have magically different results. So essentially we have changed the name of what something is from a felony to a misdemeanor, but right at this moment as Dave mentioned we don't have that treatment piece in place to really address that issue. So that's a concern. TOM FUDGE: Dave, you said that the savings that we are anticipating from Prop 47 are not going to be seen for a couple of years, once they are seen who is going to get that money? Who is going to provide those services? DAVE GREENBERG: Well, it is going to be interesting because the um, the initiative talks about the savings to the State. It doesn't talk about the savings to local jurisdictions. So the question is when they make that calculation are they only going to be dealing with those people that are no longer in state prison and the number of those individuals is not that high because of realignment in October of 2011. Almost of all these crimes that are now misdemeanors are being handled at the local level unless the person had a prior strike offense. So the question will be how much of the savings and in terms of if it does come back down to the local jurisdictions, people will have to apply for grants. I would imagine HHSA Health and Human Services will be administering a lot of that because of the drug treatment and the mental health treatment and things of that nature which they are working on now as a result of realignment. TOM FUDGE: So Marlea, any chance that some of that money will come to your office so that you can hire more attorneys, is that just not in the cards? MARLEA DELL'ANNO: Well, I don't know what the future holds right now. Like I said, we are just going to be um looking at the numbers and working closely with the DA's Office and kind of make a very calculated decision about what we need in light of what we see in terms of numbers and if we need to ask for additional resources we will do that. TOM FUDGE: Dave Greenberg. DAVE GREENBERG: The money won't come from any savings in this initiative to help for additional prosecutions because 65 percent is supposed to be allocated to treatment, 25 percent for the schools, and I don't know if my numbers are right, I am not a Math major, but ten to 15 percent for victims. So, this money does not go to providing funding to law enforcement or prosecution or the courts that are also impacted by this. TOM FUDGE: Okay. Well, finally when is this all going to get sorted out? By the end of the year do you expect will know where they are going to be spending their time in prisoner in jail, Dave? DAVE GREENBERG: We already know where they are going to be spending their time whether it is prisoner jail, that's not really an issue. I would say for the next six months, it is going to be there will be give and take trying to figure out what we have and it should start dissipating and we will start handling them like we handle all of our cases. TOM FUDGE: Marlea, are you concerned about jail space frankly in San Diego County if a lot of people are going to be shifted as a result of this from prison to jail? MARLEA DELL'ANNO: I have been concerned about that on a number of different levels. We will just have to wait and see, but certainly the ability for the sheriff to house misdemeanants is less than it was previously given realignment. TOM FUDGE: Dave, any comment on that? DAVE GREENBERG: Well, first of all these people are not going from prison to jail. So these are all people that we were handling locally already now anyway as a general rule. In terms of jail space, it will be interesting. Right now last week the jail was at about 105 capacity or thereabouts and today I received some information it looks it is about 93 or 94 percent capacity. So, obviously the Sheriff's going to be taking a look at everything and their capacity to determine what misdemeanants they can and can't house. TOM FUDGE: So thank you very much to Dave Greenberg and Marlea Dell'Anno. Dave Greenberg is Chief Deputy District Attorney for San Diego County, thank you, Dave. DAVE GREENBERG: You are more than welcome. TOM FUDGE: And Marlea Dell'Anno is um leads the Criminal Division for the San Diego City Attorney's Office. Thank you very much. MARLEA DELL'ANNO: Thank you.
Under newly passed Proposition 47, certain non-violent crimes would be lowered from felonies to misdemeanors. Those crimes include drug possession, petty theft, shoplifting, receiving stolen property and forging and writing bad checks.
Chief Deputy District Attorney Dave Greenberg said new misdemeanor cases would be handled by the San Diego City Attorney's office. That means roughly 3,000 more cases each year will now fall under the jurisdiction of the city attorney.
The District Attorney's Office will continue to handle misdemeanor and felony cases at its branches in other parts of the county.
In addition to those awaiting sentencing, an estimated 1,800 people currently in custody in San Diego County may be eligible for re-sentencing. The San Diego County public defender's office created an eligibility checklist that has been distributed in the county jails.
