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

Miranda rights and questioning: when it applies – part 2 of a series

In part one, I discussed what the law of the 1966 Miranda decision requires when a person is being questioned by police.  In this part, I’ll explain when the police are even required to read your rights.

First – Custody

The whole decision of the Miranda case dealt with custodial interrogation.  That means that the police are required to give the Miranda warnings when a person is in custody before they can get a statement from them.

What is “custody”?

Under case law, “custody” is defined as a formal arrest or the functional equivalent of an arrest.  Obviously, if you have been told you’re under arrest, you are “in custody” for the purpose of the Miranda rights.  If the police want to question you after you’ve been arrested, they must advise you of your rights.  But other situations can trigger the Miranda rights as well – even when you haven’t been formally arrested.

“Custody” without being arrested

First, a quick overview of the categories of police interaction:

  • Consensual encounter:  The police can engage in a conversation with anyone as long as that person is free to leave and an ordinary person would feel free to leave.
  • Detention: A person is temporarily not free to leave and has been detained based on reasonable suspicion of criminal activity
  • Arrest:  A person has been taken into custody based on probable cause to believe they’ve committed a crime.

It is only during that third category – an arrest – that automatically means they must advise you of your rights before questioning.  During a consensual encounter or detention, case law has said that you’re not “in custody” and therefore the Miranda rights don’t apply.  Here are some examples:

Let’s say the police walk up to a person just standing on the street corner.  Assuming they don’t do anything to indicate the person is not free to go, they could ask if that person had any drugs on them.  If the person says “yes” – it’s absolutely incriminating, but not a Miranda violation because the person wasn’t “in custody”.

Similarly, if you were stopped for speeding and the officer smelled alcohol, you can bet the first question he’d ask would be, “Have you been drinking?”  If you answer “yes”, you’ve just incriminated yourself.  However, because you are only “detained” for the speeding violation, you’re not “in custody” and Miranda warnings are not required.

A detention can be “custody”

In some circumstances, even during a detention, you can be “in custody” for Miranda purposes.  A detention is supposed to be a temporary situation – just long enough for the police to deal with the reason you were detained.  Either they can develop enough evidence to have probable cause to arrest or they will determine there’s not enough and let you go.  If that detention is prolonged (an unreasonable length of time to deal with the reason for the detention), it can turn into the equivalent of custody and Miranda warnings would be required or the statement would be inadmissible.

If the detention rises to a level beyond a temporary detention in its intensity, that too can be “custody” for Miranda purposes.  For example, although a person could be detained at gunpoint initially, to continue to hold them at gunpoint for an extended period of time, surrounding them by multiple officers or other circumstances beyond that necessary to detain someone could make the detention into “custody.”  Transporting a detained individual to another location without their consent or emergency circumstances would also elevate an ordinary detention into custody.

When are you NOT in custody?

When the circumstances surrounding your police interaction are less than I talked about above, it is likely to be seen as non custody.  One of the biggest factors in determining this can be your consent.  The Miranda decision primarily focused on the police-dominated and coercive atmosphere of the police station.  But if you agree to go with the police for an interview or if you show up for an interview, you’re there with consent.  If the police are savvy, they’ll give you a Beheler admonition [from the US Supreme court decision in California v. Beheler (1983) 463 U.S. 1121].  A Beheler admonition is when they advise you that although you may be in the police station behind closed (or even locked) doors, you’re free to go at any time.  If you agree to stay, that takes away (in the court’s mind) any coercive nature of being in the police station.

Custody for Miranda also means just that – you’re in the custody of the police.  You can’t be in custody if they call you on the phone.  No matter how intimidating or heated telephonic questioning may be, you’re free to simply hang up.

So – if the police are required to read you your rights, they must do so or any custodial statement is subject to being excluded from the prosecution’s case.  If you said something in a statement taken in violation of Miranda that leads them to pieces of physical evidence (drugs, a gun, stolen property, etc.), that too can potentially be excluded from evidence.

 

Next up – part 3 in the series – waiving or invoking your rights.

 

Joe Dane, Orange County Criminal Defense Attorney

info@joedane.com

714.532.3600