NEW LAW — EFFECTIVE 2025

Prop 36 Defense Strategies

Everything defense attorneys need to know about 2024's Proposition 36. New felony wobblers, treatment-mandated felonies, fentanyl enhancements, charging patterns, and defense strategies for conflict panel attorneys.

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What Is 2024's Proposition 36?

Critical Caseload Impact

In Alameda County, DA Jones Dickson filed 1,246 property crime cases in her first 90 days — a 60% increase over 2023. Conflict panels are seeing a 25-30% increase in case assignments.

November 2024's Proposition 36 (the 'Homelessness, Drug Addiction, and Theft Reduction Act') is a ballot measure that partially rolls back 2014's Proposition 47 reforms. It creates new wobbler felony categories for repeat theft, establishes 'treatment-mandated felonies' for drug possession, and increases penalties for fentanyl-related offenses.

For defense attorneys, this means a significant increase in caseload and the need to master new Prop 36-specific defense strategies.

What Changed: Before vs. After

BEFORE (Prop 47)

Theft under $950 was always a misdemeanor under Prop 47 (2014). Shoplifting (PC 459.5) was a misdemeanor regardless of priors.

AFTER (Prop 36)

Prop 36 (2024) creates felony wobblers for theft with prior theft convictions. Third-time theft offenders can face felony charges. Retail theft with intent to resell can be charged as a felony.

Bay Area Charging Patterns

How Bay Area DAs are using the new Prop 36 tools.

Charging Breakdown by County

County	Felony %	Misd. %	Wobbler %	Decline Rate	Diversion
Santa Clara	29%	52.5%	12%	10.2%	11.5%
Alameda	29.6%	50.8%	13.2%	15.8%	12%
Contra Costa	29.5%	53%	10.5%	7.4%	6.8%
San Francisco	27.5%	51%	14.8%	17.5%	15.2%
San Mateo	28.6%	53.8%	11.2%	9.1%	8.5%
Sonoma	29.5%	52.8%	10.8%	8.5%	7.2%
Solano	29.7%	54.2%	9.5%	6.2%	5.5%
Marin	26.8%	53.5%	13%	11.8%	9%
Napa	28.8%	53.2%	11%	9.5%	7.8%

Strategy: Analyze DA Trends

Counties with high wobbler rates and low diversion rates (like Alameda under Jones Dickson) are where Prop 36 wobbler defense is most critical. In these counties, argue aggressively for wobblers to remain misdemeanors under PC 17(b).

Wobbler Defense: Keeping Charges as Misdemeanors

Treatment-Mandated Felonies

How It Works

Felony Charge

DA files drug possession charges as treatment-mandated felony

Treatment Offer

Court must offer drug treatment program as alternative to incarceration

Outcome

Success = case dismissed. Failure = court can impose felony sentence

Defense Strategies

Argue for immediate treatment program admission
Identify quality treatment programs before the hearing
Request PC 1001.36 mental health diversion as alternative
Document client's treatment history and willingness to participate
Negotiate treatment conditions client can realistically comply with

Risks to Consider

Treatment failure results in felony sentencing — not misdemeanor
Treatment programs may be low-quality or underfunded
Client may be unable to comply with treatment requirements
Felony remains on record during treatment
Violations can be detected and reported quickly

Racial Disparity Data

Combine with Racial Justice Act

Early data suggests Prop 36 is having a disproportionate impact on communities of color. Use the California Racial Justice Act (AB 2542/AB 256) to challenge Prop 36 charges that show racial disparity in their application.