“Can I get my felony reduced to a misdemeanor because of Prop 47?”

Can your conviction get dropped to a misdemeanor?  Does Prop 47 affect your case?

 

In the past week since Proposition passed, I’ve gotten several calls and emails asking about getting felony charges changed to misdemeanors.  Unfortunately, there are either a lot of false rumors or maybe just false hope going around.

 

Proposition 47 did not affect all felonies.

 

Only a handful of low-level theft and fraud charges as well as three drug charges were affected by Prop 47.  If your current case or old conviction is not one of those listed, Prop 47 didn’t do anything to any other charges.  Here’s what charges were affected:

Burglary

Second degree burglary based on shoplifting.  There is a new Penal Code created by Prop 47.  Now, the crime of shoplifting is listed in Penal Code 459a.  That makes it a misdemeanor to enter a commercial establishment with the intent to commit a theft while the business was open during regular business hours.  It used to be that if you entered a store with the intent to steal, they could arrest you for second degree burglary [Penal Code 459/460(b)].  That charge was a “wobbler” and could be either a felony or a misdemeanor.  The police would always arrest for the felony charge, even if the DA chose later to file only a misdemeanor burglary or a simple petty theft.  If you have a prior conviction for second degree (commercial) burglary based on a shoplifting incident and the value of the property taken was under $950, it would qualify for redesignation to a misdemeanor under Prop 47.  NOTE:  Residential (first degree) burglary or other forms of second degree burglary (such as auto burglary or breaking into a closed business or detached garage) are not affected by Prop 47.

 

Forgery of checks

If you have a felony conviction for forgery of checks that total less than $950, it potentially qualifies for reduction to a misdemeanor under Prop 47.  NOTE:  If you were convicted of identity theft (Penal Code 530.5) along with the forgery, then the forgery charge would NOT qualify.

Insufficient checks

Under Prop 47, if you have a felony conviction for insufficient checks under Penal Code 476a, as long as they did not total over $950, it potentially qualifies for reduction.  However, if you have three or more prior convictions for forgery (PC 470), fictitious instruments (PC 475) or 476 (insufficient checks), you would not qualify.

Grand theft

Grand theft used to be theft over $400.  Recently, the dollar amount changed to $950.  If you have a prior conviction for grand theft as a felony, but the dollar amount was under $950, it would qualify.  Similarly, if you have any other form of grand theft (such as grand theft person, grand theft auto, grand theft of a firearm, etc.), it may also qualify for reduction.  Those three forms of grand theft didn’t have a dollar amount – theft of a firearm of any value was considered grand theft, just like theft from a person (pickpocketing) of any value was grand theft.

Receiving stolen property

If you have a prior felony conviction for receiving stolen property and the value was under $950, that charge is eligible for reduction to a misdemeanor.

Petty theft with a prior

If you have a felony conviction for petty theft with a prior (Penal Code 666), it may be eligible for reduction.  If your conviction was solely because you have either 1 prior theft conviction (or 3 priors once the law changed a few years ago), it is potentially able to be reduced.  If you were convicted for petty theft with a prior and the prior was grand or petty theft from an elder [Penal Code 368(d) or (e)], auto theft under Vehicle Code 10851, burglary (PC 459), carjacking (PC 215), robbery (PC 211) or felony possession of stolen property (PC 496), your charge is NOT eligible to be reduced.

 

What non-drug charges are NOT affected?

If it isn’t one of the listed charges above, it is NOT affected by Prop 47.  I’ve gotten calls and emails asking if felonies such as robbery (211), carjacking (215), manslaughter (191.5), felony evading (2800.2), felony DUI (VC 23153 or 23152), domestic violence (PC 273.5) and other charges can be now reduced because of Prop 47.  Sorry – no.  Prop 47 covers only those listed lower level offenses.  If it’s not listed in the new law, it’s not able to be reduced.

 

 

DRUG CHARGES

Only three charges were affected by Prop 47:

Possession of a controlled substance under Health and Safety Code 11377 (typically methamphetamine and ecstasy) is now a misdemeanor.  If you have a prior felony conviction for possession of meth, you can get it reclassified as a misdemeanor.

Possession of concentrated cannabis under Health and Safety Code 11357(a) is now also a misdemeanor.

Possession of a controlled substance under Health and Safety Code 11350 (typically cocaine and heroin) is now a misdemeanor

 

What drug charges are NOT affected?

Possession for sales of any substance under 11351, 11351.5, 11352, 11378, 11379, 11359, 11360 are NOT affected by Prop 47 and cannot be reduced.

Possession of controlled substances in jail or prison (Penal Code 4573).  Yes, those are typically simple possession charges, but because it occurs in a custody facility, they are NOT included in Prop 47.

 

Keep in mind – if you have a prior “super strike” or sex offense that requires PC 290 (Megan’s law) registration, you may not qualify even if the charge itself does.

 

For more information, please see Prop 47 – reducing a felony to a misdemeanor

If you have a case in Orange County or Southern California that you think qualifies, contact me and let’s see if we can get started clearing up your felony charges.

Joe Dane

714.532.3600

info@joedane.com

 

Prop 47 – reducing a felony to misdemeanor (old conviction or new case)

Proposition 47 made some substantial changes to drug and theft laws

 

California voters approved Proposition 47 (“Prop 47″) in the statewide general election November 4, 2014.  It was commonly known as the “Safe Neighborhood and Schools Act” and it changed the sentencing laws and affects several low-level crimes to make them misdemeanor offenses instead of felony offenses.  The law became effective upon passing and it is already impacting current cases in court.

 

With the change in the law, the following crimes are now considered misdemeanors in most instances:

 

  • Shoplifting, where the value of property stolen does not exceed $950
  • Grand theft, where the value of the stolen property does not exceed $950
  • Receiving stolen property, where the value of the property does not exceed $950
  • Forgery, where the value of forged check, bond or bill does not exceed $950
  • Fraud, where the value of the fraudulent check, draft or order does not exceed $950
  • Writing a bad check, where the value of the check does not exceed $950
  • Petty theft with prior convictions
  • Personal use of most illegal drugs

 

Shoplifting (Penal Code 484, 488 and now 459a)

Prop 47 created a new charge:  Penal Code 459a.  That is a new charge of misdemeanor shoplifting.  Under the old laws, if a person stole an item from a business it was ordinarily charged as a misdemeanor petty theft (Penal Code section 484 and 488).  If a person entered with the intent to steal (such as entering with tools to remove sensors, empty shopping bags, etc.), the police would typically arrest for second degree burglary – commercial burglary.  That charge is a “wobbler” meaning it could be either a felony or a misdemeanor.  Because of that, law enforcement would arrest for the felony charge, take the person down for formal booking and they would have a felony arrest on their record.  Now, if a person enters a commercial building that is open for business and takes (or tries to take) property valued at $950 or less, they will only face a misdemeanor for shoplifting.

 

Grand Theft (Penal Code 487)

Proposition 47 also makes several significant changes to the grand theft laws.  Previously, grand theft was taking of property of over $950 in most cases, but included several categories that were felonies at any dollar value.  For example, under the old law, theft of a firearm of any value was grand theft.  Similarly, theft of an automobile of any value was grand theft.  Under the old law, grand theft was a “wobbler” and could be either a felony or a misdemeanor.  Now, for a theft to be grand theft, the value must be $950 under any theory.  The new change in the law also applies to grand theft person (where the property is taken directly from a person, such as a pickpocket).  In some cases, a defendant charged with robbery (Penal Code 211) was offered a plea deal and was convicted of grand theft person as a felony.  It appears as though those defendants can now petition to have that felony reduced to a misdemeanor as long as the value of the property taken does not exceed $950.

 

Receiving Stolen Property (Penal Code 496)

 

Under the old law, possession or receiving stolen property was a “wobbler” and could be either a felony or a misdemeanor.  Now, with the changes in Prop 47, it is a misdemeanor unless the value of the property is over $950.  If it is over $950, it remains a “wobbler”.

 

Petty Theft with a prior (Penal Code 666)

 

This charge has undergone changes in the recent past.  Years ago, if you had one prior theft conviction and served at least one day in jail, they could charge a new petty theft as a felony.  The law changed a few years ago to require three prior theft convictions (with a few exceptions) before a fourth petty theft could be charged as a felony.  Now, Proposition 47 makes petty theft a misdemeanor, regardless of the number of prior convictions for petty theft.  This does not apply to a person who has been previous convicted of a violent sex offense (see below) or a “strike” offense.

 

Forgery (Penal Code 470 and 473)

Prop 47 now makes it a misdemeanor for the passing of a check, bond, bank note, cashier’s check or similar negotiable instrument if the amount is under $950.  This does not apply if the defendant is also charged with identity theft under Penal Code 530.5.

 

Check Fraud (Penal Code 476a)

Like many of the other theft sections, check fraud is now a misdemeanor if the value is under $950.  If the defendant has 3 or more prior convictions for check fraud, the new charge is a “wobbler” and can be either a felony or a misdemeanor.

 

Drug offenses

Now, possession of illegal drugs under Health and Safety Code sections 11350, 11357 and 11377 are now misdemeanor offenses unless you have been previously convicted of certain felonies (see below).  This includes possession of drugs such as cocaine, heroin, methamphetamine, ecstasy, LSD, mushrooms (psilocybin) and rock cocaine.

 

BUT… Some defendants are excluded from these changes.  

If a defendant has a prior conviction for a violent sex offense or other felonies listed under Penal Code 667(e)(2)(C)(iv), the automatic misdemeanor rule does not apply.  Those prior convictions include oral copulation, sodomy or sexual penetration of a child under 14 by a person 10 years older than the victim; lewd acts with a child (commonly referred to as child molestation) under Penal Code 288; homicide or attempted homicide under Penal Code 187 through 191.5; solicitation to commit murder under Penal Code 653f; assault with a machine gun on a peace officer under Penal Code 245(d)(3); possession of a weapon of mass destruction under Penal Code 11418(a) and any serious or violent felony punishable by life in prison or death.

 

Now what?

If you have a previous conviction for a felony that falls under the listed crimes affected by Prop 47, you are eligible to have it reduced to a misdemeanor.  If you are no longer under any sort of supervision (probation, parole, etc.), you are entitled to the reduction of your felony conviction to a misdemeanor.  If you are still “serving” your sentence, it is not an automatic reduction, but the court must assess whether reducing you pose an “unreasonable risk of danger to public safety.”  That means that the court must decide if you are at risk to commit a new violent felony (not just any felony).

 

Does this impact firearm rights?

There is a difference between a charge that is reduced vs. a charge that is reclassified.  When the law changes to reclassify these listed crimes as misdemeanors, once the request to reclassify is granted by the court, the case becomes a misdemeanor for all purposes.  The exception to that is when it comes to “felon in possession of a firearm” charges.  This post-conviction reclassification pursuant to Prop 47 does not reinstate your right to own, use or possess a firearm.  If you were previously convicted of an offense that was a “wobbler” that can be reduced to a misdemeanor, requesting that reduction (rather than reclassification) does truly make the case a misdemeanor for all purposes including felon in possession of a firearm statutes.

 

How do you get your felony conviction reduced?

If you have a case from an Orange County conviction that you think qualifies, contact me – either by phone at 714.532.3600 or email at info@joedane.com or by submitting your information on the “contact” page here:  Click to contact Joe Dane

We can discuss your eligibility and options to help put old felony convictions behind you.  If you’re eligible, we can file the appropriate motions with the court to get your felony charge reduced to a misdemeanor.  The law provides that you must file your motion with the court within three years of the passage of Prop 47, so don’t delay.

 

 

Top Criminal Defense Attorney – Orange County (OC Metro magazine)

Joe Dane named as Top Criminal Defense Attorney in Orange County

 

I am honored to have been named by OC Metro magazine as one of the top attorneys for criminal defense.

OC Metro Top Attorneys feature

For additional information about my background and experience, please see Joe Dane’s “About Me” page.

joedane.ocmetro 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Congratulations to the others selected for this year’s list, all whom I am proud to be colleagues of and call my friend.  

Orange County Criminal Defense Attorney – new office location

I am pleased to announce the new location of my office.  After six years in the previous location,  I have relocated from Orange to the city of Tustin.  Our new address is:

17581 Irvine Blvd., Suite 108

Tustin, CA  92780

 

Same email address, same website, same phone numbers.

 

- Joe Dane

Miranda rights – How to keep your mouth shut (part 3 in a series)

In the first two parts of this series, I’ve discussed the law of the Miranda rights and when the Miranda rights apply.  Now, it’s time to talk about how to invoke your rights if you choose not to talk… and you probably shouldn’t as we’ll discuss in part 4).

 

Who can invoke your rights?

The short answer is:  Only you.  The Miranda rights are drawn from the Fifth and Sixth Amendments of the Constitution.  They are personal constitutional rights and belong to an individual.  They are your rights to waive and yours alone to invoke.  That means that even if I am your attorney, I cannot assert your rights for you.  Here’s that scenario: Let’s say you know you’re under investigation and have hired me to represent you.  The police arrest you and take you to the station.  Your family calls me to tell me you’ve been arrested.  As much as I’d like to, I cannot call the detective up and invoke your rights for you.  Of course, if I show up, it’s different.  The law says I must be allowed to have contact with you and you can guarantee I’ll be telling you to keep your mouth shut from that point on.  They are still your rights though.

When can you invoke your rights?

Although it would be nice if you could take out a small ad in the classified ads announcing to the world, including the police, that you hereby forever forward invoke your Miranda rights, you’d be wasting your money.  Because the Miranda warnings apply during custodial interrogation, when you’re actively being questioned by the police is the time when you can decide to invoke your rights and decline to answer further questions.

You can invoke for ANY questioning, not just when you’re in custody!

Typically, when a person has been arrested and they’re about to question you, they’ll read you your Miranda rights and if you’re smart, you’ll invoke and remain silent.  But your constitutional rights to not incriminate yourself exist all the time, not just when you’re arrested.  Take a typical traffic stop that leads to a DUI investigation.  You’re pulled over for some reason and if the officer smells alcohol, they’ll ask, “Have you been drinking?”  If you answer “yes,” you have just incriminated yourself.  You’re not admitting you’re under the influence or that you’ve had too much, but your statement of admitting having consumed alcohol before driving could be used against you – self incrimination.  In that DUI scenario, if they ask if you’ve been drinking, you could invoke your Fifth Amendment right.  You could simply answer his “have you been drinking” question with “At this point, I’m invoking my Fifth and Sixth Amendment rights not to answer questions without an attorney.”  No, you don’t have a right to have your attorney with you on the side of the road during their investigation, but neither do you have to help them gather evidence to convict you.

I can only imagine the officer’s confusion – they may try to respond with a “but you’re not under arrest” or “I haven’t even read you your rights” or even worse, “you can’t invoke your rights now.”  All three are wrong.  The Fifth Amendment doesn’t say you have a right to be free from self-incrimination only after you’re arrested.  It says you have that right, period.

How to invoke your rights during questioning

I’ve talked in generic terms before about “invoking your rights,” but there are different ways to effectively invoke your Fifth Amendment right to silence and your Sixth Amendment right to an attorney.  What you invoke matters in what the police may do in the future.

First – waiving your rights

My blanket advice is to not waive them and to not make a statement without an attorney.  Just to touch base with waivers of Miranda rights though…

After the police advise you of your rights, they can seek either an implied waiver or an express waiver.  An express waiver is where they ask you a question similar to “with those rights in mind, do you want to talk?’ or “Can we ask you about this” or “do you want to talk?”  They’re looking for a “yes” as your express waiver.

If they read you your rights, get an acknowledgment you understand and then simply start questioning you, if you choose to answer questions, that is viewed as an “implied waiver.”  That means that the court will assume that you chose to waive your rights because you were just told that you had the rights, but you then answered questions rather than remaining silent or asking for an attorney. It’s not necessarily as clean for the police or prosecution, but it is still a valid Miranda waiver.

Invoking your right to silence under the Fifth Amendment

You can invoke your right to remain silent either by words or conduct that express an unwillingness to talk.  For example, if they police asked you (after reading you your rights and asking if you understood, if you tell them in any way that you don’t want to talk or answer questions, you’ve invoked your Fifth Amendment right to remain silent.  Anything like “I’m not talking.” or “I don’t want to say anything/answer questions” will work.  So will simply saying “No” to them asking if you want to talk.

Invoking your right to an attorney under the Sixth Amendment

Unlike invoking your right to silence, the only way to validly assert your right to an attorney is to expressly request an attorney.  Ambiguous or vague comments about getting an attorney will not be seen as invoking your rights to a lawyer.  It is only through the direct request for an attorney that you invoke your Sixth Amendment rights.

If you say something like, “Maybe I should get a lawyer” or “I might want to talk to a lawyer first” are likely not going to be seen as you invoking your rights.

My advise:  If you don’t want to talk to the police (and there are many reasons why you don’t want to talk to the police), invoke your Fifth and Sixth Amendment rights all at once.

“I do not want to talk and I want an attorney.”

That phrase invokes your Fifth Amendment right by indicating your unwillingness to talk and your Sixth Amendment right by directly requesting an attorney.

Next in the series, part 4 – Why you probably shouldn’t talk to the police without an attorney (coming soon)

 

Joe Dane

Orange County Criminal Defense Attorney

info@joedane.com

714.532.3600