It is bad enough to be convicted of a felony crime in California since it comes with harsh consequences. It is even more heartbreaking to serve an unjustifiably long sentence for the crime. Fortunately, California voters brought relief for many inmates and defendants by passing Prop 47 into law. Thanks to this proposition, you can now seek to have your felony charge reduced to a misdemeanor, which in turn has lenient penalties.
However, to do this, you must seek the services of an experienced criminal defense attorney who understands prop 47 in depth. A skilled attorney knows who is qualified for resentencing under Proposition 47. He/she will also help you through the steps of having a resentence. At Los Angeles Criminal Attorney, we have qualified attorneys who will help you through your case as per Prop 47. This article explains Prop 47 as well as how you can appeal for resentencing in case the proposition affects you.
Understanding Proposition 47
Prop 47, the Safe Neighborhoods and Schools Act was enacted on 5th November 2014 during the California election. This proposition requires that a defendant be sentenced to a misdemeanor instead of a felony for a non-violent, non-serious offense. It lowers the sentences for various drug crimes and theft crimes in California. Generally, Prop 47 takes many offenses that are initially wobblers or felonies under the law and turns them to misdemeanors. This means the maximum punishment for the changed crimes will be:
- A maximum of one year in jail, and
- A maximum fine of $1,000.
However, the proposition applies only if the defendant has no prior convictions of rape, murder, certain sex crimes, or certain gun offenses.
Prop 47 is retroactive. This means it requires that anybody presently serving a felony sentence of the offenses mentioned above (without prior violent or severe crimes) be resentenced to a misdemeanor.
Crimes Affected by Proposition 47
The following are California crimes affected by proposition 47
Shoplifting (PC 459.5)
Prop 47 also provides that going into an open business premise with intent to steal goods (shoplifting) be charged as a misdemeanor. This will apply if the stolen goods are not more than $950 in value. The maximum county jail sentence for PC 459.5 is six months. Before prop 47 was passed, shoplifting was considered burglary. Burglary is considered a wobbler offense under California law.
Grand theft (PC 487)
Prop 47 requires that any theft of property valued at $950 or lower be treated as petty theft under the laws of California. Petty theft is a misdemeanor offense whose maximum county jail sentence is six months. This is contrary to the old law where stealing of property that is on a person (e.g., pickpocketing), auto theft and firearm theft was treated as grand theft. PC 487 is considered a wobbler offense. Thus, before the passing of proposition 47, grand theft of a firearm and grand theft auto were considered felonies. Their potential jail term as felonies was a maximum of three years.
Receiving stolen property (PC 496)
Typically, PC 496 was a wobbler. Before the enactment of prop 47, the DA had the discretion of charging the defendant with a misdemeanor or felony if the stolen property’s value did not exceed $950. However, proposition 47 amended PC 496 law and provided that the crime will be considered a misdemeanor in case the worth of the received property is not more than $950. Under prop 47, the maximum sentence for a misdemeanor PC 496 offense is one year in jail.
Petty theft with a prior (PC 666)
Before Prop 47 was passed, there existed a PC 666 offense. Under the previous PC 666 law, a petty theft defendant would face felony charges if he/she had three or more previous petty theft convictions. A felony conviction carries sixteen months to three years in jail. However, Prop 47 somehow eliminated PC 666 from criminal law. Under the current law, most cases of petty theft are misdemeanors regardless of the number of prior convictions of theft crimes you have.
Though there is an exception to the current law; that you can still face PC 666 charges if you have a past theft conviction of embezzlement or theft from a dependent adult or an elderly. This is a type of PC 368 elder abuse offense.
We could say that the most logical and overdue section of Prop 47 is where it reduces the possible sentences for many drug offenses that are victimless.
To begin with, proposition 47 changes the crime of possession of a controlled substance (HS 11350) from a felony to a misdemeanor. A misdemeanor conviction has up to a one year sentence in county jail.
Secondly, Prop 47 changes the crime of possession of concentrated cannabis (under HS11357) from a wobbler to a misdemeanor. A misdemeanor conviction also carries up to a one year sentence in jail and up to $500 in fines.
Finally, Prop 47 turns the crime of possession of methamphetamine (under Health & safety code 11377) from a wobbler offense to a misdemeanor. A misdemeanor conviction has up to one year of a jail sentence.
For instance, under the previous law, cocaine possession (a violation of HS 11350), was a felony. However, currently, it is a misdemeanor except if you were previously convicted of a violent or severe offense. In this case, the charge remains to be a felony. People convicted of HS 11350 previously can now file for a petition to have the charge reclassified as a misdemeanor. The same applies to those sentenced to a drug diversion program or probation provided they are eligible for resentencing under Prop 47.
Check Fraud/Check Forgery
Check forgery (PC 470)
Under Prop 47, it is specified that PC 470 forgery, which, typically, is a wobbler offense will be considered a misdemeanor in case:
- The document you forged is a bond, check, note, bank bill, traveler’s check, money order, cashier’s check
- The worth of the document you forged equals to or is less than $950
- You are not also sentenced for PC 530.5 identity theft
After proposition 47, a misdemeanor check fraud/check forgery offense carries a maximum jail sentence of one year.
Bad checks (PC 476a)
Prop 47 amends the California law on bad checks. Under the previous law, passing or writing a bad check was considered a wobbler offense except if the worth of all the checks and other instruments in question were $450 or lower. If their total value was $460 or lower, then it would be a misdemeanor.
As per the current law, PC 476a is considered a misdemeanor in case the worth of the check and other instruments in question amounts to $950 or lower. The misdemeanor conviction carries up to a one-year county jail sentence. However, the lowered punishment for passing or writing bad checks below $950 doesn’t apply if you have three or more past convictions of bad checks or forgery.
Eligibility for Resentencing or Sentencing under Proposition 47
The amended laws on resentencing and sentencing under proposition 47 don’t apply to every criminal defendant. To be more specific, the lowered sentences provided for in Prop 47 won’t apply to a defendant who:
- Must register as a sex offender as per the Sex Offender Registration Act due to a past sex offense conviction that mandates such registration
- Has a previous conviction of any offense considered a serious or violent felony
Convictions of Sex crimes
Sex crime convictions which can render a defendant unqualified for a reduced sentence under Proposition 47 include:
- PC 243.4 sexual battery
- Most crimes of rape under PC 261
- Most sex offenses that involve minors; for example, crimes of child pornography and lewd acts with a minor
- Acts of force that involve oral copulation through fear or force, PC 286 sodomy, or forcible penetration using a foreign object under PC 289
- Crimes of indecent exposure
- Human trafficking offenses for purposes related to prostitution or child pornography
Also, the Sex Offender Registration Act allows a judge to require you to register as a sex offender even. This is so even if you are not convicted of any of the sex offenses mentioned in the Act. A judge may do this in case he/she believes you committed another crime to achieve sexual gratification. However, a defendant who registers as a sex offender due to a judge’s directive qualifies for resentencing or sentencing under Prop 47. A person is only unqualified for resentencing or sentencing under Prop 47 if he/she was convicted of any of the crimes mentioned explicitly in the Sex Offender Registration Act.
Convictions of Serious and Violent felonies
Convictions of certain violent or severe felonies will also make you ineligible for resentencing or sentencing under Proposition 47. These offenses include:
- Crimes that the California law classifies to be sexually violent. This means sex offenses committed using violence, force, or threat to retaliate or cause a bodily injury
- Sex offenses against a minor who is under 14 years
- PC 187 attempted murder or murder
- Assaulting a firefighter or law enforcement officer using a machine gun
- PC 191.5 gross vehicular manslaughter while intoxicated
- Possessing a mass destruction weapon
- Soliciting to commit a murder crime
- Any violent or severe felony whose penalty includes death or life imprisonment
Note that these are just a few of the violent or severe felonies that are considered strike offenses as per the Three Strikes laws. Thus, it means you may qualify for resentencing or sentencing even if your conviction record has one or several strike offenses.
Appealing Your Conviction Under Proposition 47
In case you already had been sentenced for a felony offense that would qualify to be charged as a misdemeanor, you can seek resentencing under the current law. Defendants who qualify to appeal for resentencing under Proposition 47 include:
- Those that are presently convicted of an offense affected by Proposition 47
- Those that have served their full sentence for an offense affected by Proposition 47
A Petition to Resentence
The process of petitioning to resentence is similar both for defendants presently serving time for a felony conviction, and for individuals who have finished serving time for felony offenses. First, you will file a petition with the court seeking resentencing. The court in which you present the appeal has to be the one where you were initially convicted. Then, the judge will determine whether your conviction would qualify to be a misdemeanor as per Prop 47. In case it qualifies, the judge will then grant your petition to resentence. He/she does this by converting the offense you had been convicted of a misdemeanor.
However, there is one exception to the changing of a conviction from a felony. The exception is that the judge won’t resentence you if he/she establishes that doing so would bring an unreasonable danger to the safety of the public. By unreasonable risk, it means the likelihood that you will commit another violent felony crime that would render you ineligible for Proposition 47 sentencing.
To determine whether you pose an unreasonable danger to the safety of the public, the judge considers the following:
- Your criminal record. This includes:
- The type of offenses you have committed
- The degree of injury the victims sustained
- The period that has passed since you committed the past crimes
- The length of previous prison sentences
- Your disciplinary record as well as rehabilitation record while in confinement
- Any other proof he/she will see relevant
Additionally, if the DA wants to exclude you from resentencing under Prop 47, he/she will file an opposing petition. Then, the DA will request a dangerousness hearing. During this hearing, the DA has to show that you pose the danger of committing an offense that would disqualify you from resentencing under Prop 47. This may be difficult for the DA to prove. This is because he/she has to show that you pose the danger of committing a more severe crime compared to the ones you have ever committed.
Resentencing for Defendants Presently Serving Time
In case you are serving a sentence for a felony offense covered under Prop 47, then your sentence may be reduced. This is if the judge grants your petition to resentence. This could mean you will immediately be released from confinement.
By the time Proposition 47 was being passed, prison officers had already identified close to 5,000 prisoners that would qualify for resentencing as per Proposition 47. Due to this significant number, courts will most likely suffer an accumulation of unprocessed petitions. A skilled criminal defense lawyer can be of help to current inmates that wish to have their sentence decreased on time.
Individuals that have already served their sentences
Petitioning to resentence may not be urgent for a person who has already served a felony sentence for an offense that is a misdemeanor under Prop 47. However, it is as crucial as for defendants currently serving felony sentences. For instance, if your criminal record shows you have been convicted of a felony, it may be difficult for you to serve as a member of the armed forces or jury
Additionally, prospective employers will require you to disclose any conviction of a felony to them. This is because there are employers that take felony convictions quite seriously compared to misdemeanor convictions. Therefore, if you have your sentence lowered from a felony as per Prop 47, it can have a significant impact on your life.
However, we have one repercussion of felony sentences that still remains unchanged even by Proposition 47; the elimination of the right to possess a firearm. Thus, in case you were sentenced for a felony offense which is currently a misdemeanor as per Prop 47, you still won’t be permitted to possess a firearm. This applies even if your petition to resentence was successful.
The Passing of Prop 47
Prop 47 is like a law made by California voters. The proposition was passed into law by 58.5% of votes. Its victory indicates that California residents had gotten tired of mass confinement. It showed that the residents were prepared to welcome smart approaches to crime instead of the tough approaches.
Proposition 47 will change people’s lives; people who, without the proposition, would have served unjustifiably long prison/jail time for minor offenses. Also, the proposition will save California State quite a lot of money (between 150 million and 250 million).
As per Prop 47, the cash saved from detaining fewer individuals for minor offenses would be used in the following ways:
- 25% would go to the California education department to support initiatives whose aim is to reduce truancy. It would also help students who face the risk of discontinuing school or becoming victims of crimes.
- 10% would be allocated to the victim’s compensation fund
- 65% would go to supporting public agency initiatives which provide treatments of mental health and substance abuse, as well as diversion programs to those individuals in the criminal justice system
Get an Los Angeles Criminal Lawyer Who Understands Proposition 47
If you have questions about prop 47 or are wondering how you can have your sentence reduced under this law, reach out to the Los Angeles Criminal Attorney. You will be granted the services of a competent attorney with whom you will confidently talk about your case. Call us at 424-333-0943 for a free consultation and for any help you require. We have our offices in Los Angeles, which is strategically located for convenient access. Contact us today!