California Proposition 36, also known as the "Homelessness, Drug Addiction, and Theft Reduction Act," was enacted on December 18, 2024, with the primary goal of addressing the issues of homelessness, drug addiction, and theft in the state.

This law has brought about significant and substantial changes to the state's statutes, particularly in the areas of combating theft and drug-related offenses. These changes could have a profound impact on how you are prosecuted and sentenced if you're accused of these types of offenses, necessitating a heightened level of awareness and caution.

Prop 36, the "Homelessness, Drug Addiction, and Theft Reduction Act," addresses drug addiction and theft by imposing stricter penalties.

Prop 36 modifies existing law and adds substantive charges and enhancements to areas of the Penal Code and Health and Safety Code regarding theft, property damage, and drug-related crimes.

The proposition repealed parts of Proposition 47, passed during the 2014 general election, and amends the state constitution to increase penalties and allow felony charges for certain crimes.

The changes include the creation of new felony theft and drug crimes targeting recidivist offenders, as well as a significant broadening of the law to remove eligibility for certain offenses to be served in the county jail, pursuant to Penal Code 1170(h). This broadening of the law underscores the gravity of the situation and the need for a thorough understanding of the legal landscape.

For example, the proposition will allow for the authorization of increasing the penalty for repeat shoplifters (those with two or more past convictions) of items with a value of $950 or less from a misdemeanor to a felony, punishable by up to three years in prison. It will also allow felony sentences for certain crimes, such as theft or property damage, to be lengthened if the crime is committed by a group of three or more individuals.

Proposition 36 has significantly increased penalties for repeat offenders and simplified the process of bringing more serious charges for crimes involving theft and property damage. The key updates on theft and property damage include the following:

Aggregated Losses in Multiple Thefts

One of the key provisions introduced is Penal Code 490.3, which allows the value of stolen property across multiple thefts to be combined (or aggregated) to meet the $950 threshold required for felony charges.

Previously, proving a single theft exceeded $950 was often necessary for a felony charge. Under the new law, a series of smaller thefts can collectively meet the felony threshold, even if those thefts were unrelated in intent or plan.

For example, if someone shoplifts $500 worth of goods on two separate occasions, prosecutors can total these amounts and charge the individual with felony theft. This provision eliminates loopholes that previously allowed offenders to avoid harsher penalties for smaller, repeated crimes, instilling a sense of fairness and justice in the new law.

This new section applies to theft or shoplifting, including violations of Penal Code sections 459.5, 484, 488, and 490.2. Penal Code 490.3 applies "notwithstanding any other law."

It is therefore broader than other laws such as Penal Code 487 PC, subdivision (e), and the new Penal Code section 12022.10,1, which would permit aggregation only in limited circumstances, such as if the acts were motivated by one intention, one general impulse, and one plan, or only if there was a common scheme or plan, respectively.

Felony Charges for Repeat Theft Offenders

With the introduction of Penal Code 666.1, Proposition 36 now permits prosecutors to upgrade a charge for petty theft or shoplifting to a felony offense if the individual has two or more prior convictions for theft-related offenses.

Notably, there is no "washout" period, meaning that any prior qualifying convictions, regardless of their age, can be used to elevate current charges to a felony offense under this statute. If you're accused of theft, this change may significantly alter how your case is handled.

Prosecutors have broader authority to escalate charges based on your criminal record, resulting in harsher penalties that could include state prison time for repeat offenders. Other notable aspects of Penal Code 666.1 PC include:

• While Penal Code 666.1 does not mandate that the two or more specified prior convictions be alleged in the pleading, existing authority suggests prior convictions must be proved at a preliminary hearing, so a defendant can be held to answer on a PC 666.1 charge.
• After an arrest on a Penal Code 666.1 PC charge, subdivision (c) requires judicial review prior to release from custody to make an individualized determination of the arrestee's risk to public safety and likelihood to return to court.

Enhanced Punishments for Large-Scale Crimes

Property crimes involving significant losses are also affected. Penal Code 12022.6 reintroduces a range of sentencing enhancements for offenders who steal, damage, or destroy property with a value exceeding certain thresholds. For instance, a one-year enhancement applies when losses exceed $50,000, while a more severe four-year enhancement applies to losses exceeding $3 million.

These enhancements can be stacked with other penalties, creating substantial consequences for high-value crimes. The enhancements are:

• One-year enhancement - loss or property value over $50,000.
• Two-year enhancement - loss or property value over $200,000.
• Three-year enhancement - loss or property value over $1 million.
• Four-year enhancement - loss or property value over $3 million.
• One-year enhancement for every additional loss or property value of $3 million (imposed in addition to the four-year, $3 million enhancement.

Penal Code 12022.65 PC is a new enhancement that applies when an offender acts in concert with two or more persons to take, attempt to take, damage, or destroy property, in the commission or attempted commission of a felony. This enhancement has a range of one, two, or three years and must be pled and proved.

Changes in Drug-Related Offenses

Proposition 36 also modifies California's drug laws by introducing stricter penalties for both drug possession and distribution offenses, with a particular emphasis on fentanyl. These changes aim to tackle the growing dangers posed by this lethal drug, which has been responsible for a significant number of overdose deaths in recent years.

The law also aims to balance these stricter penalties with offering pathways for treatment and rehabilitation for certain offenders, recognizing that addiction is a complex issue that often requires more than just punitive measures.

Proposition 36 creates a new Section 11369 in the Health and Safety Code, which requires the trial court to advise anyone convicted of violating Health and Safety Sections 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, or 11379.6 involving a hard drug.

'Hard drugs' in this context refer to substances like heroin, cocaine, and fentanyl, which are known for their high potential for abuse and severe physical and psychological dependence. The law advises that distributing, selling, furnishing, administering, giving away, or manufacturing any drug is extremely dangerous and deadly to human life.

If the conduct continues, the defendant can be charged with homicide, up to and including murder. This means that if a person continues to distribute, sell, furnish, administer, give away, or manufacture any drug after being advised of its dangers, and this action leads to a death, they can be charged with homicide. The admonishment must be given to the defendant in writing, and the court record must reflect that the admonishment was given.

New Enhanced Penalties for Fentanyl and Other "Hard Drugs"

Controlled substance offenses now carry heavier consequences under the updated Health and Safety Code, especially where fentanyl is involved. Two specific examples:

• Prop 36 has introduced weight-based penalty enhancements for fentanyl possession and distribution. Sentences range from three additional years for possessing over 28 grams to 25 additional years for amounts exceeding 80 kilograms.
• The possession of fentanyl while armed with a firearm has been criminalized, aligning it with similar charges for other controlled substances.

"Treatment-Mandated Felony Act" for Drug Possession

As it does with repeat theft offenses, Prop 36 introduces felony charges for individuals in possession of hard drugs if they have two or more drug-related convictions (Health & Safety Code 11395).

However, this law comes with a twist: in lieu of jail or prison time, the defendant charged under this statute can opt for court-ordered treatment for addiction (giving this statute its name, the "Treatment-Mandated Felony Act"

Successful completion of a treatment program, combined with a favorable recommendation from the treatment provider, may result in the charges being dismissed altogether. This provision provides an opportunity for individuals struggling with addiction to avoid long-term consequences if they are committed to rehabilitation.

Possessing a Drug While Armed with a Firearm

Health and Safety Code section 11370.1 is modified by Proposition 36 to expand the felony crime of unlawfully possessing a specified substance while armed with a loaded, operable firearm to include any substance containing fentanyl.

HSC 11370.1 continues to apply to substances containing cocaine, cocaine base, heroin, methamphetamine, or phencyclidine. It continues to provide punishment of two, three, or four years in state prison.

Great Bodily Injury (GBI) Enhancement For Drug-Related Injury

Prop 36 amends Penal Code 12022.7 PC to add subdivision (f)(2), which explicitly provides that "a person who sells, furnishes, administers, or gives away a controlled substance is deemed to have personally inflicted great bodily injury when the person to whom the substance was sold, furnished, administered, or given suffers a significant or substantial physical injury from using the substance."

This creates a great bodily injury enhancement that can be charged when the person to whom an offender supplies a drug suffers a serious injury from using the drug, including death.

What Proposition 36 Means for Defendants

Proposition 36 introduces sweeping reforms that could significantly affect criminal cases in California. If you've been accused of a crime, it's important to acknowledge how these new changes might influence the charges and penalties you face. A skilled California criminal defense attorney can help you navigate these changes and work on your behalf to get the best possible outcome for your case.

For additional information, contact our criminal defense law firm, Eisner Gorin LLP, located in Los Angeles, CA

Related Content:

• Drug Treatment Program
• Info Bulletin - Proposition 36
• California Penal Code 661 PC
• Analysis of CA Proposition 36