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PASADENA CRIMINAL DEFENSE ATTORNEY

PROPOSITION 47: REDUCES CERTAIN FELONY THEFT AND DRUG CRIMES TO MISDEMEANORS

Proposition 47, approved by Los Angeles voters in 2014, decreases penalties for certain felonies such as most felony theft offenses where the loss is under $950 (including, fraud, receiving stolen property and commercial burglary), and most drug cases involving personal possession.  This law is also retroactive, which means a person currently serving time in custody for a crime that was a felony at the time of sentencing, but which is now a misdemeanor under Prop 47, may petition the Court to reduce the sentence and allow the accused early release from prison.

Under the California law as it existed prior to the enactment of Proposition 47 in 2014, simple possession charges involving small amounts of cocaine, heroin, and some prescription drugs were “straight” felonies and such charges were not reduceable to misdemeanors. The District Attorney had full power to file felony charges against many non-violent users and addicts who were only possessing drugs for personal use.  The DA also had the full power to charge felonies against those who committed low level, non-violent theft offenses such as check fraud or commercial burglary where the amount of loss was $950 or less.  Many people were being sentenced to prison for relatively minor “petty” offenses because they were “straight” felonies, which allowed prosecutors and judges to impose longer sentences. In fact, as a straight felony, the DA did not even have the discretion or option to file these crimes as misdemeanors!

We all know people who, at some time in their lives, struggled with drug issues or mental health issues. Many people have exercised poor judgement when they were young, but had the potential to do something wonderful with their life and contribute to society.  Being saddled with a felony conviction for a minor offense not only hindered good people from being able to excel in their careers, but really inflicted a negative cost on society, because when people can’t get a job, or be approved for an apartment rental or financial aid, we all lose out on the lost productivity and creativity of such people.

Felony crimes changed to “straight” misdemeanors under Prop 47 include:

  1. Shoplifting: If the value of the goods stolen are $950 or less, the prosecutor can only charge an accused with a misdemeanor (with some rare exception discussed later).
  2. Forgery of check, money order, etc., where the amount is $950 or less,
  3. Receiving stolen property: If property is worth $950 or less, it is a misdemeanor,
  4. Grand theft auto: If the vehicle stolen is worth $950 or less, this crime is now a misdemeanor,
  5. Theft of firearm: If the firearm has a worth of $950 or less, it is only a misdemeanor,
  6. Bad checks: If the amount of the check is $950 or less, this crime is now a misdemeanor,
  7. Possession of a controlled substance: HS 11350: now a misdemeanor,
  8. Possession of concentrated cannabis: HS 11357: now a misdemeanor,
  9. Possessing methamphetamine: HS 11377: now a misdemeanor.

Under Prop 47, all these crimes can now ONLY be filed as misdemeanors.  This means that instead of an accused facing between 16 months and 3 years in custody, and up to $10,000 fine for violating one of the crimes listed above, the accused is now facing a minimum of zero jail time to a maximum of 1 year in county jail and up to $1000 fine if convicted of one of the listed offenses. The money saved by fewer people serving prison time will go towards drug treatment programs, schools, mental health treatment and other causes

Prop 47 Exceptions: However, there are a few exceptions which dictate when a defendant is NOT entitled to the benefits of Proposition 47.  For example:

If you have suffered a previous conviction for specified serious crimes such as murder, sex crimes against children and rape, OR you are a person who is required to register as a sex offender due to being previously convicted of a sex crime, then Prop 47 may not apply to you and you may still be facing felony charges.

Interestingly, MOST convictions for prior strikes (serious or violent felonies) will NOT disqualify an inmate from Prop 47 benefits. For example, if you are serving a 32 month prison sentence because you were convicted of a commercial burglary for stealing merchandise valued at $950 or less, but 5 years ago you were convicted of a residential burglary or a criminal threats felony, you will be able to petition to have your commercial burglary reduced to a misdemeanor and for release from prison.  A judge MUST reduce the charge and release you from prison if you have served more than a misdemeanor sentence if you qualify under Proposition 47, UNLESS the Judge finds you would pose an unreasonable risk of harm to the public.

PETTY THEFT, SHOPLIFTING AND PETTY THEFT WITH A PRIOR: EFFECT OF PROP 47:

Prop 47 specifically states that when a person enters a business during open business hours with the intent to steal, this act constitutes a misdemeanor shoplifting offense if the merchandise is worth nine hundred and fifty dollars ($950) or less.  This crime is now codified under Penal Code section 459.5.

Prop 47 also defined all thefts involving property worth $950 or less as being a “petty theft”.  This means a prosecutor can no longer charge a person with felony grand theft auto or felony theft of a firearm or theft of a person if the property is worth $950 or less. Such crimes must be filed as a misdemeanor petty theft under Penal Code section 490.5.

Before Prop 47 was passed, petty theft with a prior under Penal Code section 666 made it a wobbler (a felony or misdemeanor, depending upon the discretion of the DA) to be charged with a petty theft if the accused had three or more prior theft convictions on his or her criminal record.  Under Prop 47, most petty theft cases will be misdemeanor offenses no matter how many prior theft convictions the accused has on his or her record.  There are some exceptions, such as if the defendant has a prior conviction for a violation of PC 368 (embezzlement or theft from an elderly or dependent adult.)

PROP 47’S EFFECT ON DRUG CRIMES

Long overdue was a reform to the irrational drug laws our community has suffered under for a long time.  Instead of viewing people with addiction problems as people who need medical and psychological help, the government has always preferred to view addicts and low level drug offenders as “criminals” who need to be locked away in jails.  This draconian view was beginning to result in over crowded prisons and jails and the destruction of many families.  Prop 47 has helped with this issue.

Prop 47 reduces most victimless drug crimes from felonies to misdemeanors. For example, HS section 11377, possessing methamphetamine, used to be a wobbler, which meant the DA had discretion to file the case as a felony, even if the accused was only possessing a small amount of meth or an amount for personal use. The DA usually filed these non violent drug cases as felonies.  Of course a defendant who is charged with a felony is more likely to be convinced to waive his or her trial rights and take a plea deal than risk being convicted of a felony.  Now, thanks to Prop 47, the DA can not file a felony charge against a person found in possession of meth for personal use.  This crime is now a straight misdemeanor with a maximum sentence of one year in county jail instead of up to 3 years in jail if a felony.

Crimes such as possessing concentrated cannabis (Health and Safety Code section 11357) and possession of heroin and cocaine under HS section 11350, are also straight felonies under Prop 47, with a maximum sentence of up to one year on county jail.

RESENTENCING / REDUCING A FELONY CONVICTION TO A MISDEMEANOR UNDER PROP 47

If you were convicted and already served your sentence for a crime that was a felony when you were sentenced, but which is now deemed a misdemeanor under Prop 47, you can ask the court to reduce your felony conviction to a misdemeanor with a Petition pursuant to Penal Code section 1170.18. 

California Penal Code section 1170.18 states the following in part:

 “(f) A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors. (g) If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor. (h) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subsection (f).”)

The same process applies to a defendant who is still in custody serving time on a felony conviction for a crime that is now deemed a misdemeanor under Prop 47: an attorney can file a petition with the court requesting the judge reduce the felony conviction to a misdemeanor.  Of course, if you are still serving time on the felony, this reduction to a misdemeanor will possibly lead to your immediate release or greatly lessen your sentence.

When the petition is before the judge, the judge will determine if your crime is considered a misdemeanor under Prop 47. If your conviction would have been a misdemeanor conviction had it been entered after the passing of Prop 47, then the judge will grant the request to reduce your felony conviction to a misdemeanor.  (However, if a defendant’s felony is reduced to a misdemeanor conviction under Prop 47, the reduction does not restore the defendant’s gun rights.)

The judge can only deny this request if he or she determines the accused poses an “unreasonable risk to public safety.”  An “unreasonable risk” means the court must find that the accused poses an unreasonable risk of committing one of the specified violent felonies such as murder, rape, and some other violent offenses.

An unreasonable risk to public safety means an unreasonable risk that the defendant will commit a new violent felony on the list of crimes (discussed above) that would make him/her ineligible for Prop 47 sentencing (murder, sexually violent offenses, etc.)

There is a lot more to explain when it comes to the changes and impact Proposition 47 had on the criminal justice system and on individual defendants’ sentences. The People in Los Angeles finally realized that sometimes the law swings too far to the right—sometimes we need to return rationalism and compassion to the criminal law.  This is part of Proposition 47’s objective—release the non-violent low level offenders and offer them treatment and the chance to avoid the stain of a felony record.

If you want to discuss how this new law may affect you or a loved one, please call my office for a FREE consultation. I am happy to discuss you case.

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