What Prop 36 means for immigrants charged with drug or theft crimes

This page explains Prop 36 for noncitizens. It is general information, not legal advice.

What is Prop 36?

California voters passed Prop 36 in November 2024. It took effect on December 18, 2024 (Judicial Council). It made some repeat drug and theft crimes felonies, and it added longer sentences in some cases.

For a citizen, that can mean more time. For a noncitizen, it can also mean deportation, detention, or losing the chance at a green card or citizenship.

What changed for drug charges?

The "treatment mandated felony." If you are caught with certain hard drugs, like fentanyl, heroin, cocaine or methamphetamine, and you have two or more past convictions for certain drug crimes, you can be charged with a felony under Health and Safety Code 11395. It does not cover cannabis, LSD or psilocybin.

You can choose treatment instead of jail or prison. But to get treatment, you must:

• plead guilty or no contest,
• admit your past convictions, and
• agree to finish a court approved program.

If you finish, the judge dismisses the charge, and under California law it does not count as a conviction. If you do not finish, the judge can sentence you.

Longer sentences for selling. Prop 36 also lets courts lengthen sentences, based on the amount sold, for selling fentanyl, heroin, cocaine or methamphetamine, and requires a warning that you could face a murder charge if someone later dies from drugs you provide. Drug sale charges are very serious for immigrants. Get an immigration expert involved early.

What changed for theft?

• Petty theft or shoplifting with two or more priors (Penal Code 666.1). Theft of $950 or less is usually a misdemeanor. Now, if you have two or more past convictions for theft type crimes, such as shoplifting, petty or grand theft, burglary, robbery, carjacking, receiving stolen property, car theft or identity theft, it can be charged as a felony. Old convictions from before Prop 36 count.
• Adding up thefts (Penal Code 490.3). The value of several thefts can be added together into one charge. That can turn small thefts into grand theft.
• Group thefts. A felony theft or property damage sentence can be up to three years longer if three or more people committed the crime together.

Why this matters for immigration: the state's analysis says these theft felonies can carry up to three years. Some immigration rules turn on a possible sentence of one year or more, and a theft conviction with a sentence of one year or more is an aggravated felony. See Why the length of a sentence matters and What is an aggravated felony?

Can a theft charge alone lead to detention?

It can. Since January 29, 2025, a federal law called the Laken Riley Act (8 U.S.C. 1226(c)(1)(E)) requires immigration detention for some people who are only charged with or arrested for theft, shoplifting or burglary, even with no conviction. It applies mainly to people who entered without being inspected, or who lack valid entry papers, or who used fraud to get immigration benefits. See Can a shoplifting or theft charge affect my immigration status?

Is Prop 36 working the same in every county?

No. Counties and courts are still building it. The Judicial Council's first annual report (March 2026) covers January 1 to December 31, 2025:

• 19,104 treatment mandated felony drug cases were filed in the 56 courts that reported.
• In the 53 courts that could report it, people chose treatment in 3,207 cases, about 17%.
• 57 cases were dismissed after the person finished treatment. In 197 treatment cases, the judge entered judgment and sentenced the person instead.
• 15,508 felony theft cases were filed under Penal Code 666.1.
• Some courts said there was a general lack of treatment services in their county.

The report warns that its numbers should not be used to judge how well programs work, because many cases were still in progress and courts reported different things. An earlier preliminary report (October 2025) showed the same pattern for the first six months.

This means treatment may take a long time to start where you live. Ask your lawyer what is really available in your county.

What should I do if I am charged?

1. Tell your lawyer you are not a citizen. California law requires your defense lawyer to give you accurate advice about immigration effects and to defend against them when that fits your goals.
2. Do not plead, or agree to treatment, until an immigration expert has looked at your case. Ask your lawyer if a different charge or program would be safer.
3. Be careful what you say. Admitting drug or theft acts can hurt you in immigration, even with no conviction. Do not discuss your case with anyone but your lawyer.
4. Know your rights if immigration agents come. See Get a free know your rights red card.
5. Make a family plan in case you are detained. See Make a family preparedness plan.

What if I already pleaded?

Talk to an immigration attorney now, even if your case is closed. California has a way to ask a court to undo a plea that hurt you in immigration.

• Penal Code 1473.7 lets a person who is no longer in criminal custody ask the court to vacate a conviction or sentence. One ground is a legal error that kept you from meaningfully understanding, defending against or knowingly accepting the immigration consequences of your plea (Penal Code 1473.7).
• The conviction must be causing, or could cause, deportation, denial of a green card or citizenship, or a similar problem.
• The motion is filed in the superior court of the county where you were convicted. The Judicial Council has an optional form, CR-187, Motion to Vacate Conviction or Sentence.
• Whether this works for a Prop 36 treatment plea is a question for a lawyer. Do not file it on your own without advice.

See Ways to fix an old California conviction.

If you are struggling with drug use, getting help is a brave step. See Is it safe to get help for drug or alcohol use?

Who can help?

These are free or low cost public offices and nonprofits. Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• Your public defender or criminal defense lawyer is the first person to ask. Tell them you need immigration advice.
• Community Legal Services in East Palo Alto (CLSEPA): immigration help for low income residents of San Mateo and Santa Clara counties. 650-326-6440. clsepa.org/services
• State funded immigration legal help: the California Department of Social Services provider map, or call (916) 651-8017.
• More options: Free or low cost immigration legal help in the Bay Area.