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:
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.
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 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.
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.