Don’t be misled: Prop 47 Was Never About Increasing the Felony Threshold to $950
It’s time to assess its havoc on the safety of San Franciscans
Nine years ago, District Attorney George Gascón, a Republican-turned-progressive, coauthored the intentionally mislabeled “Safe Schools and Neighborhoods” proposition, more commonly known as Prop 47. It passed in November 2014.
As inflation has increased and time has passed, it has become popular to rewrite that Prop 47 was intended merely to adjust crime thresholds to account for the increasing cost of living. Alex Bastian, who was Gascón’s Director of Communications during the Prop 47 campaign and followed him to Los Angeles to act as his “Special Advisor,” recently said, “What Prop 47 did is increase the dollar amount by which theft can be prosecuted as a felony from $400 to $950 to adjust for inflation and the cost of living.” Consistent with the proposition’s misleading title, Bastian’s twist on this pernicious legislation is specious.
Another chameleon, retired SFPD Commander Rich Corriea, while debating on behalf of Chesa Boudin during the recall election, spun, “I can tell you that I never made a shoplifting arrest, ever, because they were done by private security in the stores who would call the police and sign a citizen’s arrest card, and we would take them down and book them.”
First, thirty years ago, when Corriea last performed on the streets as a patrol officer, you may recall that there was no need for Walgreens, Safeway, Target, and CVS to hire private security. Second, while it is not surprising that Corriea never made a shoplifting arrest, his arguments to defend Boudin were either intentionally deceptive or he is seriously unaware of the accessible penal code tools police officers had prior to Prop 47. All the officers I worked with made felony shoplifting arrests for under $400 that did not require victims to make citizen’s arrests as they do now. However, Gascón’s Prop 47 surgically removed three penal code tools to stymie law enforcement’s effectiveness — intentionally.
Prop 47 eliminated the felony treatment of shoplifting as a burglary
Prior to Prop 47, police officers were allowed to use the burglary statutes1 to arrest shoplifters for felonies if the shoplifter entered the building/store without money and perhaps had an empty bag to carry the stolen items outside of the establishment.
The fact that officers could arrest the thief for a felony eliminated the need for store employees to make a citizen’s arrest, and more importantly, there was no burden placed on employees to hold mentally ill or violent thieves until police arrived. The employee could merely describe the man in the polka-dot jacket that ran eastbound on Chestnut Street, and SFPD could arrest the thief and take him to County Jail.
Prop 47 added California Penal Code section 459.5 which specifically prevented police officers from arresting thieves under the felony burglary statutes. Gascón’s addition of this subsection effectively transferred the responsibility of holding potentially violent thieves in custody from police officers to store employees. Now they must wait for officers to arrive to issue a traffic ticket before releasing the thief back into the public.
Before Prop 47 eliminated California Penal Code section 666, if a thief had a criminal history of theft convictions, a police officer could charge him with a “felony theft with-priors” and take him to county jail.”
Prop 47 eliminated the felony treatment of serial shoplifters
Before Prop 47 eliminated California Penal Code section 666, if a thief had a criminal history of theft convictions, a police officer could charge him with a “felony theft with-priors” and take him to county jail. Like the burglary section above, section 666 allowed police officers to arrest thieves without the necessity of employees signing a citizen’s arrest and holding the possibly mentally unstable or violent person in custody.
Prop 47 eliminated treating the theft of an electronic device from a victim as a felony
Before Prop 47, ripping a person’s cellphone out of their hands was considered a grand theft felony offense, irrespective of the value of the stolen item. Grand theft is considered serious because of the trauma caused by the thief violating the victim’s personal space.2 Prop 47 created Penal Code section 490.2(a), whereby stealing from a person only qualifies as felony grand theft if the value exceeds $950. And this now requires the victim to make a citizen’s arrest and hold the thief until the police arrive to issue a traffic ticket.
Whereas an iPhone theft from a person used to be a felony, here is how many typical iPhone thefts now play out under Prop 47:
Victim: Officer, officer, that man running away just stole my iPhone.
Police Officer: Code 33. Clear the air; I’m running after an iPhone thief. Code Four, I have him in custody.
Police Officer: Miss, this is a misdemeanor. I need you to sign a citizen’s arrest form. You will technically be making the arrest, and you will have to go to court to testify. And I will issue the thief a traffic ticket and release him back into the public.
Victim: Can you just give my iPhone back, and I’ll be on my way? Thanks, I really appreciate your efforts officer. By the way, thanks for your service.
Technically, this is not even a crime because no item remained stolen.3
The state of crime in California after Prop 47
First, some believe that police unnecessarily arrest too many people for crimes. Consider instead that police are reacting to more people committing more crimes.
Second, for Gascón, and the Police Commission-Four,4it’s not about keeping the public safe; it’s about keeping the police from arresting thieves so that it won’t disrupt their resumés. That is consistent with the specific language of the pending legislation that Prop 47-izes BART fare evasion because “enforcement is discriminatory” by “disproportionately (affecting) people of color.” That also conflicts with Bastian’s claims that Prop 47 was all about inflation.
Bastian appears to have recently changed his mind with his new position as the President and CEO of the San Francisco Hotel Council. That nonprofit’s mission is to “ensure the vitality of the hospitality community in San Francisco.”
Recently, Bastian said, “As a native of this city, this is the first time that I can remember where the majority of San Franciscans believe in common sense reforms.”5 Perhaps in his new role, Bastian can explain his true colors by answering whether, in the spirit of common sense, reversing his ex-boss’ three penal code tweaks might help restore vitality to San Francisco’s hospitality industry.
Alex, how about it?
1. Citizens often confuse the terms robbery with burglary. A robbery occurs when someone takes something from you by employing force or fear (Ie., simulating a gun). A burglary occurs when a person enters a building to steal property. For a burglary to be committed, no victim needs to be present. A robbery is considered a violent crime, while a burglary is characterized as a property crime.
2. Again, grand theft should be distinguished from robbery, which involves “force” or “fear” (ie., simulated gun).
3. However, SFPD’s oversight body, the Department of Police Accountability (DPA) along with the Police Commission Four, wants SFPD officers to go back to the station and write a report on I why the officer ran after the thief because DPA wants to monitor SFPD’s foot chases.
4. The “Police Commission-Four” are the three Board of Supervisor-appointed commissioners: 1) former public defender Cindy Elias, 2) public defender Ilona Solomon Yanez’s husband, and 3) Kevin Benedicto. The fourth commissioner is Mayor Breed-appointed Max Carter-Oberstone who duped the mayor into believing he was a moderate.
5. San Francisco Business Times, July 14-20, Page 22.
Lou Barberini is a CPA and has been writing articles for the Westside Observer since February 2016.
August 7, 2023