By Contra Costa Health, Housing and Homeless Services
What is the Point in Time Count?
The Point-in-Time (PIT) Count provides a comprehensive snapshot of individuals experiencing homelessness—both sheltered and unsheltered—on a single night in late January. Mandated by the U.S. Department of Housing and Urban Development (HUD), this annual count requires Continuums of Care to account for sheltered individuals who are in emergency shelters, transitional housing, and safe havens, as well as unsheltered individuals who live in places not meant for human habitation like cars, parks, sidewalks, and abandoned buildings.
As a result, the Continuum of Care (CoC) must submit PIT Count data to HUD. This data is collected across the country to estimate homelessness and provide information about the demographics of people experiencing homelessness.
This information is used to decide how much funding communities get to help with homelessness.
Source: CCC CoC
Data collected from the Point-in-Time Count helps identify
The causes of homelessness
Create better policies, programs and funding allocations
Track progress in reducing homelessness
What Am I Being Asked To Do?
Be part of a one-day, county-wide project to count unsheltered people in Contra Costa
Work in a pair [with someone you know or we can pair you with someone]
Either drive (if you have a car) or capture data on an iPhone-based app with someone else while they drive
Multi-agency effort also recovers 4 abandoned vehicles, 3 firearms
By Antioch Police Department
On Thursday, Dec. 19, 2024, our police department had the honor of hosting the Vehicle Theft Suppression Enforcement Team (VSET) operation, bringing together 12 agencies to focus on tackling vehicle theft in our county. The teamwork and dedication were incredible, and the results speak for themselves:
• Abandoned Recoveries: 4
• Felony Arrests: 7
• Misdemeanor Arrests: 8
• Warrant Arrests: 3
• Firearms Recovered: 3
• Enforcement Stops: 173
This was one of the most successful details of the year, and we’re grateful for everyone who participated. Together, we’re making a difference in keeping our community safe!
Today, Sunday, December 22, 2024, we had the privilege of doing something truly special that warmed our hearts.
Last week, Officer Lundin responded to a burglary in progress. The suspects escaped, taking with them all the Christmas gifts. The victim, who had recently lost her job, was devastated and unable to replace the presents for her family and young daughter.
Officer Lundin couldn’t stand by without helping. She rallied her patrol team, and with the incredible generosity of our community, we were able to replace the stolen gifts and bring some holiday magic to the family.
When our dayshift crew arrived with the gifts, the victim greeted us with the biggest smile and even baked cookies for everyone. The joy and gratitude we witnessed made this moment unforgettable.
(Side note: Did you know Officer Lundin has a huge heart for animals too? She’s often called on by our dispatchers when Antioch Animal Services is not available for loose or injured pets—and rumor has it, they might have even convinced her to adopt a dog!)
Officer Lundin, thank you for your kindness, dedication, and determination to make things right. You’ve truly embodied the holiday spirit!
SACRAMENTO – As families prepare to celebrate the holidays, the California Highway Patrol (CHP) reminds everyone to prioritize safety on the road. To keep travelers safe throughout the busy holiday season, the CHP is initiating the first of two statewide Maximum Enforcement Periods (MEP) this month to reduce traffic incidents by targeting unsafe driving behaviors and assisting motorists.
The CHP’s Christmas MEP begins at 6:01 p.m. on Tuesday, December 24, and continues until 11:59 p.m. on Wednesday, December 25. During this period, the CHP will increase patrols throughout the state to deter dangerous driving behaviors, including impaired driving, speeding, distracted driving and seat belt violations. The CHP also encourages the public to report unsafe drivers by calling 9-1-1.
“This time of year is about celebrating with family and friends, but it’s also a time when traffic incidents increase due to poor driving decisions,” said CHP Commissioner Sean Duryee. “Each of us has a role in making California’s roads safer. Let’s work together to keep this holiday season free of tragedy.”
Last year, during the 78-hour Christmas MEP, 20 people lost their lives in crashes within CHP jurisdiction. In addition, CHP officers made over 900 arrests for driving under the influence.
Let’s make safety our top priority on the road! Buckle up, drive responsibly, and if you’re celebrating, always plan for a sober ride. Your thoughtful choices can help prevent crashes and keep California’s roads safe for everyone. Celebrate wisely and drive with care!
The mission of the CHP is to provide the highest level of Safety, Service, and Security.
The Antioch City Council members listen to the assistant city manager during their special meeting on Thursday, Dec. 19, 2024. Video screenshot.
Discusses, provides direction on new city manager’s goals; provides direction to city attorney on 4 lawsuits about the previous council majority’s shutdown of the natural gas pipeline through the city, 58 claims
By Allen D. Payton
During a special Closed Session meeting on Thursday, Dec. 19, 2024, the Antioch Council met with City Manager Bessie Scott and Assistant City Attorney Kevin Kundinger to discuss a list of 28 of 36 current and 58 possible lawsuits against the City. It’s the second special meeting called by Mayor Ron Bernal in which the council and staff reviewed and discussed them. The first special, Closed Session, held on Dec. 11th, took over three hours to discuss eight other lawsuits. Some are about alleged violations of police use of force, while five are about the previous council majority’s vote to not renew the franchise agreement for the natural gas pipeline running through the city. (See related articles here and here) The lawsuit by the Antioch Police Officers Association (APOA) is to obtain phone records of former Mayor Lamar Hernandez-Thorpe according to the APOA’s attorney, Mike Rains.
After the meeting, Mayor Pro Tem and District 2 Councilman Louie Rocha said, “We’re getting educated on the lawsuits to understand what each are about. We’ve reviewed about half of them, so far.”
The first item on the Closed Session agenda was listed as “Public Employee Performance Evaluation: City Manager” but it was actually the opportunity for the new council to offer direction to Scott and provide her the goals that they want her to work on over the next four months. They will be the basis for her six-month evaluation in compliance with Scott’s contract.
The meeting began at 6:00 p.m., the council adjourned to Closed Session at 6:10 p.m. and almost four hours later, they returned to open session at 9:52 p.m. Although it’s not a requirement for special meeting agendas, Bernal included a Public Comments section prior to the council adjourning to Closed Session during which only two residents spoke. The first was former Councilman Ralph Hernandez who complained that there was “no packet at all…at the library”. (This news organization also did not receive an email about the meeting as usually occurs, and this reporter learned about the meeting the following day).
Hernandez also said “there’s a lot of litigation. I see a part of the problem that the City has. You’re supposed to have an administrative…inquiry and on many of those you have not had that.” He encouraged the council ensure that’s done so they’ll know what the complaints are against City employees.
The other speaker was Melissa Case asking that the council be fair and work collaboratively with the city manager in setting “realistic and attainable” goals for her. “I’m concerned she has a lack of staff, no assistant and there’s a lot to do in Antioch.”
“I think it’s crucial we set her up for success,” she continued. “Because her success is Antioch’s success.”
Case later said she meant an assistant city manager as Scott does have an executive assistant.
Assistant City Attorney Kevin Kundinger speaks to council members prior to the Closed Sessionas City Manager Bessie Scott listens during the beginning of the special meeting on Thursday, Dec. 19, 2024. Video screenshot
Slight Procedural Controversy
The only controversial matter occurred prior to adjourning to Closed Session when District 3 Councilman Don Freitas interrupted Kundinger, as he began to read the list of lawsuits, asking why he was doing so. The assistant city attorney responded, “It is considered, that is the position to make sure the record is clear.”
Freitas then said, “It’s a public record. It’s a public document. To me, this is just a waste of time.”
Kundinger responded, “If the council would like to make a motion to abbreviate the reading of that, I believe that would be amenable.”
“I think under Robert’s Rules the mayor has that power,” Freitas stated.
“To make a motion?” Bernal asked.
“No. To say it’s a public document and that’s it,” the newly-elected councilman and former mayor responded. “You don’t need a motion.”
Bernal than said, “I would like the assistant city attorney to go ahead and continue reading down the list, please. Please abbreviate it.”
But before the mayor finished speaking and after letting out a sigh, Freitas said, “Then I would like,” as he struck his forefinger on the dais, “Point of order I would like the city attorney also to look at Robert’s Rules and advise us on that matter, in writing.”
“Very well,” Bernal responded and to Kundinger he said, “If you could please proceed” which he did and finished reading the list of lawsuits taking another two minutes.
During Thursday’s meeting, the council also discussed the goals for the new city manager, which was required to be done during her first 30 days on the job which Scott began on Oct. 7th. As previously reported, Freitas pointed that out during his remarks following the oath of office ceremony at the Dec. 10th council meeting.
Municipal Pooling Authority of Northern California (MPA) is the City’s insurance provider. According to the organization’s website, MPA is a Joint Powers Authority provides and administers lines of coverage for liability, workers’ compensation and property for 13 member cities in Contra Costa County, including Antioch. If a council votes to settle a case or a plaintiff wins in court, the City must pay a deductible. That has usually been $25,000 per case.
Under Item 2, the 28 of the 36 current lawsuits listed on the meeting agenda included the following:
Agenda Item
2-1) Trent Allen, et al. v. City of Antioch, et al., United States District Court Northern District of California, (Case No. 3:23-cv-01895-TSH). The lawsuit was filed in 2023 by attorneys for Allen, Shagoofa Khan and four other plaintiffs, names six Antioch cops, three police chiefs and the City and seeks monetary damages, department practice and policy changes, court monitoring and labels officers’ actions a “conspiracy”. Allen is one of four suspects convicted in May 2024 for murder and attempted murder during a drive-by shooting in Antioch on March 9, 2021. (See related articles here, here and here)
2-2) Claudjanae Young v. City of Antioch, et al., United States District Court Northern District of California, (Case No.3:23-cv-02691-SI). Filed May 31, 2023, the lawsuit lists former Officer Devon Wenger, current Officer Erik Nilsen and the City. According to an NBC Bay Area new report, Young claims during an October 2019 incident she was “not only falsely arrested, but Wenger broke her arm in the process.” He “claims Young matched the description of a group of individuals accused of shoplifting at a nearby Spirit Halloween Store…Wenger’s partner on the scene, Officer Erik Nilsen, who is also being sued in the lawsuit, told Young she was being detained and not free to walk away. When Young tried to run inside the home, Wenger grabbed Young to arrest her. He claims she resisted, and confirmed her arm did break during the incident.”
2-3) Joel Tolbert III v. Antioch Police Department, et al., United States District Court Northern District of California, (Case No.3:22-cv-02026-JSC).
2-4) Antioch Police Officers Association v. City of Antioch, Superior Court of the State of California, Contra Costa County, (Case No. N23-1629).
2-5) King David Levon Donahue v. Antich Police Department, et al., United States District Court, Northern District, Case No. C23-05564 AGT.
2-6) Ramello Randle v. Antioch Police Department, et al., United States District Court, Northern District, Case No. 3:23-cv-05800-JSC.
2-7) Lamar Young v. Sgt. Stenger, et al., United States District Court Northern District of California, (Case No. 21-cv-08131-DMR).
2-8) Ashika Kanji v. City of Antioch, Superior Court of the State of California, Contra Costa County, (Case No. C24-00795).
2-9) Mary Reed v. City of Antioch, et al., Superior Court of the State of California, Contra Costa County, (Case No. C24-01367).
2-10) Jordan Davis v. County of Contra Costa, et al., United States District Court Northern District of California, (Case No.4:21-cv-04651).
2-11) O.Y. a Decedent, et al., v. Contra Costa County, et al., United States District Court Northern District of California, (Case No. 3:24-cv-05154-PHK).
2-12) Nicholas Shipilov v. City of Antioch, Kwame Reed, Ana Cortez, et. al, Contra Costa County, Case No. N24-1095.
2-13) Christopher Martinez v. City of Antioch, Antioch Police Department, et al., Contra Costa County Superior Court, Case No. C24-03123.
2-14) Javier Elias Aguilar v. City of Antioch, et al., Superior Court of the State of California, Contra Costa County, (Case No.C23-00410).
2-15) Jessie Wilson and Dajon Smith v. City of Antioch, et al., United States District Court Northern District of California, (Case No. 4:24-cv-02758-JSW).
2-16) Reagan DeGuzman v. City of Antioch, et al., Superior Court of the State of California, Contra Costa County, (Case No.C23-00666).
2-17) Nicholas Roark v. City of Antioch, et al., Superior Court of the State of California, Contra Costa County, (Case No.C23-00410).
2-18) Jason Allard; Jamie Tellez v. City of Antioch; Superior Court of the State of California, Contra Costa County, (Case No. MSC21-00171).
2-19) Nicholas Warner v. County of Contra Costa, City of Antioch, Superior Court of the State of California, Contra Costa County, (Case No. C23-02689).
2-20) Susan Shintaku v. City of Antioch, Superior Court of the State of California, Contra Costa County, Case No. C24-00356.
2-21) Nirivana Allen v. City of Antioch, Superior Court of the State of California, Contra Costa County, (Case No.C22-02401).
2-22) Pat Stack, et al., v. City of Antioch, et al., Superior Court of the State of California, Contra Costa County, (Case No. C24-01065).
2-23) Jayson Robinson v. Antioch Unified School District, Antioch Water Park, City of Antioch, Contra Costa Superior Court, (Case No.C20-02420).
2-24) Annette Bullock, et al. v. City of Antioch, Contra Costa County Superior Court Case No.C19-01331
2-25) California Resources Production Corporation v. City of Antioch, Before the Public Utilities Commission of the State of California, A.23-07-008.
2-26) California Resources Production Corporation v. City of Antioch, Antioch City Council, Court of Appeal, State of California, First Appellate District, Division Four, A168517, A168558.
2-27) Delta Gas Gathering, Inc., et al. v. City of Antioch, et al., Contra Costa County, Superior Court Case No. MSN21-2355.
2-28) Enerfin Resources Northwest Limited Partnership v. City of Antioch, et al., Contra Costa County Superior, Court Case No. MSN21-2356.
In addition, the agenda included a Conference with Legal Counsel of Anticipated Litigation for the discussion of 58 claims against the City, later referred to as Item 3.
Reports from Closed Session
After returning from Closed Session with District 1 Councilwoman Tamisha Torres-Walker absent, Assistant City Attorney Kundinger reported out saying under Item 1, “direction was given to the city manager” and “for Items 2-25 through 2-28 direction was given to the city attorney. For all other items underneath Item 2 there was no reportable action and for…Item 3 direction was given to the city attorney’s office.”
Eight Additional Lawsuits Discussed During Dec. 11th Special Meeting Agenda
Previously, on the Dec. 11th special Closed Session meeting agenda, eight other lawsuits were included:
Jayson Robinson v. Antioch Unified School District, Antioch Water Park, City of Antioch, Contra Costa Superior Court, (Case No.C20-02420).
Kathryn Wade v. City of Antioch, et al., United States District Court Northern District of California, (Case No. 4:23-cv-01130-DMR).
Juan Laspada, et al., v. City of Antioch, et al., United States District Court Northern District of California, (Case No.4:23-cv-01955-KAW).
Terry Robinson v. City of Antioch, Matthew Nutt, United States District Court, Northern District of California, Case 4:24-cv-03974-KAW.
Javier Elias Aguilar v. City of Antioch, et al., Superior Court of the State of California, Contra Costa County, (Case No.C23-00410).
Jarrod Garner v. City of Antioch, et al., Superior Court of the State of California, Contra Costa County, (Case No. C23-01669).
Breanna Butson v. City of Antioch, et al., Superior Court of the State of California, Contra Costa County, (Case No. C22-00161).
Edward Burkhalter v. City of Antioch, et al., Superior Court of the State of California, Contra Costa County, (Case No. C22-02663).
California Resources Production Corporation v. City of Antioch, Superior Court of the State of California, Contra Costa County, (Case No. N23-0843).
According to the annotated agenda for that meeting which began at 8:16 p.m. and adjourned to Closed Session at 8:21 p.m., District 4 Councilwoman Monica Wilson left at 9:45 p.m. during the Closed Session and Torres-Walker left at 10:38 p.m. after it was finished, but before the council returned to open session at 10:41 p.m. City Attorney Thomas L. Smith announced there was no reportable action.
Before deciding to settle any of the cases against the police department, the council and staff have the opportunity to review body cam video footage of the related incidents.
Interim Antioch Police Chief Addington administers the International Association of Chiefs of Police’s Oath of Honor to all newly promoted Corporal Joseph Chandler, new Officers Rajbir Singh and Joshua Johnson, and new Administrative Analyst Ashley Martinez on Wed., Dec. 18, 2024. All photos by Antioch PD
Promote another to corporal, add administrative analyst
Brings total sworn to 79, will be at 80 on force as of Monday
By Antioch Police Department
What an incredible evening celebrating our future and honoring our dedicated team! On Wednesday, December 18, 2024, we proudly welcomed two new police officers, Officer Johnson and Officer Singh, as well as our new administrative analyst, Ashley Martinez. We also celebrated the well-deserved promotion of Corporal Chandler. Lastly, we bid a heartfelt farewell to Captain Patrick Wentz, whose time with us, though brief, left a profound and lasting impact. Thank you to all for your commitment and service to our community!
Departing Captain Patrick Wenz offered his farewell and was presented with a commemorative plaque.
During the ceremony, Interim Chief Brian Addington shared details on each of the four personnel.
Rajbir Singh – Police Trainee
Rajbir was born in India and moved to the US in 2007. He grew up in Tracy and graduated from Kimball high school in 2020. Rajbir says he is committed to building strong community relationships in the City of Antioch. During his free time, enjoy exercising, playing video games, and watching movies.
Fun fact: Rajbir enjoys training Brazilian jiu jitsu and boxing.
Joshua Johnson – Police Trainee
Joshua was born and raised in New Orleans, Louisiana. He graduated from Frederick Douglass Senior High School where he played sports to include football, track and field, and cross country. He joined the U.S. Army right out of high school and fulfilled a phenomenal career of 23 years with the U.S. Army. Outside of work, he loves to run and participate in athletic activities. Joshua has fulfilled three college degrees to include an AA in general studies, BS in Leadership, and MS in Leadership. Taking care of his family is very meaningful to him.
Fun fact: Joshua enjoys bird watching and attending live pro-wrestling events.
Ashley was born and raised in the Bay Area. Prior to joining Antioch PD, she worked at Pittsburg PD as the Chief’s Assistant for 7 ½ years. She decided to join Antioch PD for professional growth and to be a little closer to home since she lives in Discovery Bay. Ashley loves to dance and spend quality time with her family and friends. She is very excited to join Antioch PD and is looking forward to meeting all of you!
Fun fact: Ashley loves Zumba and attending outdoor festivals and concerts.
New Antioch Police Corporal Chandler takes his oath of office administered by Interim Chief Addington.
Joseph Chandler, Corporal
After a 13-year career in television sports broadcasting, Joseph Chandler decided that he wanted to pursue his dream of becoming a police officer. He became an officer with another agency in 2016, and in 2020, he made the move to become part of the Antioch Police Department. He has enjoyed serving the community.
In his free time, Corporal Chandler loves to spend time with his family, golfing and being on the lake.
The two new additions bring the total of sworn officers on the force to 79 and Addington said that figure will increase to 80, again on Monday because “a cop that left is returning.” Those totals are out of 115 sworn officers approved in the City’s budget.
Would you look at that! Prop 36, VOTED ON BY YOU, is making immediate impacts on the community!
Yesterday, Thursday, Dec. 19, 2024, Target called 9-1-1 to report a sneaky thief was inside shoplifting! The man arrived in a white Escalade and was stealing multiple items inside the store! Officer Pedreira was quick on scene with a response time of 1 minute and 5 seconds! The would-be pilferer was located placing the stolen items in the vehicle! He was detained and thanks to Prop 36 and his history of theft, his misdemeanor is now a FELONY! He was transported and booked into jail!!
Photos: Antioch PD
Last week, this habitual swindler’s five-finger-discount would have earned him a citation, today it earned him a Felony charge and a trip to jail!
We even took his car-to-car jail for its role in the crime!
Increases penalties for shoplifting and certain drug crimes
On Dec. 13, California Attorney General Rob Bonta issued an Information Bulletin to all law enforcement agencies in the state about Proposition 36 which passed overwhelmingly in November and went into effect on Wednesday, Dec. 18th. The bulletin highlights the statutory changes and additions made to current law under the proposition known as “The Homelessness, Drug Addiction, and Theft Reduction Act.”
“Ultimately, our success in combating organized retail crime hinges on our ability to work together, innovate, and remain steadfast in our commitment to protecting our neighborhoods and businesses,” said Attorney General Bonta. “Let us harness the strength of our partnerships, the power of new legislation, and the collective resolve of our community to create a safer and more secure environment for everyone. My office is committed to fighting organized retail crime head on.”
Proposition 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 changes include the creation of new felony theft and drug crimes targeting recidivist offenders, removal of eligibility for the sentences of certain offenses to be served in county jail pursuant to Penal Code section 1170(h) as opposed to state prison, and alignment of the punishment for crimes involving fentanyl with that of other similar controlled substances.
Following is Bonta’s Information Bulletin:
TO: ALL CALIFORNIA LAW ENFORCEMENT AGENCIES PROPOSITION 36: “The Homelessness, Drug Addiction, and Theft Reduction Act”
On November 5, 2024, California voters passed Proposition 36, known as “The Homelessness, Drug Addiction, and Theft Reduction Act.” Proposition 36 takes effect on December 18, 2024.
Proposition 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 changes include: (1) the creation of new felony theft and drug crimes targeting recidivist offenders; (2) removal of eligibility for the sentences of certain offenses to be served in county jail pursuant to Penal Code section 1170(h); and (3) alignment of the punishment for crimes involving fentanyl with that of other similar controlled substances.
The purpose of this bulletin is to highlight the statutory changes and additions made by Proposition 36.
CHANGES UNDER PROPOSITION 36 RELATING TO THEFT AND PROPERTY DAMAGE
Penal Code section 490.3 (Aggregation of Losses in Multiple Thefts): Proposition 36 creates a new Penal Code section 490.3 which permits aggregation of the value of property or merchandise stolen during multiple thefts to meet the $950 threshold for a felony without having to prove that the various crimes were motivated by one intention, one general impulse, and one plan. This new section applies to theft or shoplifting, including, but not limited to, violations of Penal Code sections 459.5, 484, 488, and 490.2.
Penal Code section 490.3 applies “notwithstanding any other law,” and is therefore broader than other laws such as Penal Code section 487, subdivision (e) and the new Penal Code section 12022.10,1
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.
Penal Code section 666.1 (Felony Crime of Theft with Two Prior Thefts): Penal Code section 666.1 is a new, recidivist felony offense of committing petty theft or shoplifting while having two or more prior misdemeanor or felony convictions for specified theft-related crimes. A first conviction under Penal Code section 666.1, subdivision (a)(1) is punishable in county jail pursuant to Penal Code section 1170(h), second or subsequent convictions are punishable in county jail or state prison. Other notable aspects of Penal Code section 666.1 include:
There is no “washout” timeframe on the prior convictions that qualify a defendant to be charged with a violation of Penal Code section 666.1(a)(1)—all prior convictions qualify, regardless of when they occurred.
Although Penal Code section 666.1 does not mandate that the two or more specified prior convictions be alleged in the accusatory pleading, existing authority suggests that the prior convictions must be alleged and proved at preliminary hearing so a defendant can be held to answer on a Penal Code section 666.1 charge. (See People v. Casillas (2001) 92 Cal.App.4th 171.)
Section 666.1 applies “notwithstanding any other law,” meaning that it will apply even if a defendant could alternatively have been prosecuted for a misdemeanor theft-related charge pursuant to another statute.
Upon arrest on a Penal Code section 666.1 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.
Penal Code section 12022.6 (Excessive Takings Enhancement): Proposition 36 re-enacts and modifies several aspects of the Penal Code section 12022.6 enhancement, which was repealed at the end of 2017 because of a sunset date. Penal Code section 12022.6 applies when an offender takes, damages, or destroys property in the commission or attempted commission of a felony, or commits a felony in violation of Penal Code section 496 (possessing/receiving/selling stolen property). This enhancement must be pled and proved. The enhancements are as follows:
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)
The enhancements may be imposed if the combined losses to the victims or the combined property values from all felonies exceed the threshold amounts and arise from a common scheme or plan. The enhancement permits the court to impose a Penal Code section 12022.6 enhancement and another enhancement on a single count, including an enhancement pursuant to new Penal Code section 12022.65 (acting in concert to take, damage, or destroy property—see below). Thus, a defendant may be punished for both acting in concert (Pen. Code § 12022.65) and for taking or damaging property valued at more than $50,000 (Pen. Code § 12022.6). The punishment specified in Penal Code sections 12022.6, subdivisions (a)(1) and (a)(2) will continue to apply where Penal Code section 186.11 has been charged, as it previously did.2
Penal Code section 12022.65 (Theft or Property Damage In-Concert Enhancement): Penal Code section 12022.65 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 UNDER PROPOSITION 36 RELATING TO CONTROLLED SUBSTANCES
Health and Safety Code section 11369 (Warning to Dealers of Hard Drugs): Proposition 36 creates a new section 11369 in the Health and Safety Code section 11369 which requires the trial court to advise anyone convicted of a violation of Health and Safety Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, or 11379.6 involving a hard drug,3 that distributing, selling, furnishing, administering, giving away, or manufacturing any drug is extremely dangerous and deadly to human life, and if the conduct continues, the defendant can be charged with homicide, up to and including murder.4 The admonishment must be given to the defendant in writing and the court record must reflect that the admonishment was given.
Health and Safety Code section 11370.1 (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. Health and Safety Code section 11370.1 continues to apply to substances containing cocaine, cocaine base, heroin, methamphetamine, or phencyclidine, and continues to provide punishment of two, three, or four years in state prison.
Health and Safety Code section 11370.4 (Controlled Substance Weight Enhancement): Health and Safety Code section 11370.4 is modified by Proposition 36 by adding a new subdivision (c), which provides a range of enhancements for a violation of Health and Safety Code sections 11351, 11352, or a conspiracy to violate either section, involving fentanyl.5 The following chart breaks down the nine new weight enhancements for fentanyl in specific quantities:
Source: Office of the CA Attorney General
New subdivision (e) provides that notwithstanding Penal Code section 1170, subdivision (h)(9), a defendant convicted of an underlying violation specified in Health and Safety Code section 11370.4 (e.g., Health & Saf. Code §§ 11351, 11351.5, 11352, 11378, 11378.5, 11379, and 11379.5) who admits a weight enhancement or for whom a weight enhancement is found true for any of the listed controlled substances, is punishable in state prison and not county jail pursuant to Penal Code section 1170, subdivision (h).
Health and Safety Code section 11395 (“Treatment-Mandated Felony Act”): Proposition 36 creates Health and Safety Code section 11395, a new, recidivist felony offense of possessing a “hard drug” and having two or more prior felony or misdemeanor convictions for specified drug-related crimes. A violation of Health and Safety Code section 11395 is punishable in county jail pursuant to Penal Code section 1170(h) for a first conviction. Subsequent convictions are punishable in state prison. Both first and subsequent convictions are wobblers and eligible for probation unless otherwise prohibited. Other notable aspects of Health and Safety Code section 11395 include:
Section 11395 applies “notwithstanding any other law,” meaning that it will apply even if a defendant would have been eligible for a misdemeanor drug possession charge (e.g., Health & Saf. Code § 11350 or 11377), Penal Code section 1000 drug diversion, or probation for a non-violent drug possession offense pursuant to Penal Code section 1210.1.
The two or more prior convictions of specified crimes within Health and Safety Code section 11395, subdivision (c) may be either misdemeanor or a felony convictions.
There is no “washout” timeframe on the prior convictions that qualify a defendant to be charged with a violation of Health and Safety Code section 11395—all prior convictions qualify, regardless of when they occurred.
Prior convictions must be pled and proven. (Health & Saf. Code, § 11395, subd. (c).)
Upon booking for a violation of Health and Safety Code section 11395, subdivision (f) requires judicial review prior to release from custody to make an individual determination of the arrestee’s risk to public safety and likelihood to return to court.
Health and Safety Code section 11395 also provides an option for treatment in lieu of incarceration for its offenses. Health and Safety Code section 11395, subdivision (d) provides that a defendant may choose treatment instead of county jail, state prison, or a grant of probation with county jail as a condition of probation.6 Upon successful completion of the treatment program, the positive recommendation of the treatment program, and a motion by the defendant, the court shall dismiss the Health and Safety Code section 11395 charge. (Heath & Saf. Code, § 11395, subd. (d)(3).)
Penal Code section 12022, subdivision (c) (Drug Crimes While Personally Armed with a Firearm): Proposition 36 amends Penal Code section 12022, subdivision (c) to provide that the enhancement for individuals convicted of specified drug offenses and who are personally armed with a firearm, must serve the additional term in state prison instead of county jail. Subdivision (c) is further amended to provide that, notwithstanding Penal Code section 1170, subdivision (h)(9), a defendant convicted of a specified underlying violation who admits a Penal Code section 12022, subdivision (c) firearm enhancement or has such an enhancement found true, is punishable in state prison even if the underlying offense is a section 1170, subdivision (h) county jail offense.
Penal Code section 12022.7 (Great Bodily Injury (GBI) Enhancement For Drug-Related Injury): Proposition 36 amends Penal Code section 12022.7 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.7
1 Penal Code section 12022.10 is a new enhancement created by Senate Bill 1416, effective January 1, 2025, for selling, exchanging, or returning for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business. It also applies to attempted selling, exchanging, or returning, and has a sunset date of January 1, 2030. By contrast, Penal Code section 490.3 does not address the aggregation of sales of stolen property.
2 Assembly Bill 1960, effective on January 1, 2025, adds a Penal Code section 12022.6 excessive taking enhancement that is almost identical to that in Proposition 36. The non-substantive difference is that AB 1960 contains a sunset date of January 1, 2030, and Proposition 36 does not contain a sunset date.
3 “Hard drug” means a controlled substance listed in Health and Safety Code section 11054 or 11055, except that it does not include substances listed in Health and Safety Code section 11054, subdivisions (d) and (e), or, with the exception of methamphetamine, any other substance listed in Health and Safety Code section 11055, subdivision (d). (Health & Saf. Code, § 11369, subd. (d).)
4 Vehicle Code section 23593 similarly provides that, upon conviction of certain Vehicle Code provisions, courts are required to give an advisement about the dangers of drinking and driving, and warn that if someone is killed, the offender can be charged with murder.
5 Health and Safety Code section 11370.4, subdivision (a)(1) removes fentanyl from the list of controlled substances. The modification to Health and Safety Code section 11370.4 puts fentanyl in its own subdivision (c)(1) and lowers the quantity thresholds because fentanyl is more lethal than other substances in small doses. Health and Safety Code section 11370.4, subdivision (a)(1) still applies to heroin, cocaine, and cocaine base and does not change the quantities or punishment for those substances.
6 Section 11395 is a deferred entry of judgment program, in which the defendant must plead guilty or no contest before going into treatment; it is not a diversion program.
7 This new language abrogates the California Supreme Court’s decision in People v. Ollo (2021) 11 Cal.5th 682, which held that furnishing a drug that causes death does not necessarily qualify as personal infliction of great bodily injury.
