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.

 

 

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