If you have been convicted of a felony drug or theft charge, you may be able to reduce the charge to a misdemeanor under Proposition 47?
On November 4, 2014, California voters approved Proposition 47 (“Prop 47″) in the statewide election. It was commonly known as the “Safe Neighborhood and Schools Act” and it has changed the sentencing laws and affects several low-level felony crimes and makes them misdemeanor 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 cases:
- 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 the new charge for 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 the business with the intent to steal, the police would typically arrest the person for second degree burglary – commercial burglary. That charge is a “wobbler” meaning it could be either a felony or a misdemeanor. 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.
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 “super 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.
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.
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.
If an individual 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. For example, 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.
What drug charges are NOT changed by Prop 47?
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.
What non-drug charges are NOT changed by Prop 47?
If it isn’t one of the listed charges above, it is NOT affected by Prop 47. 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 CANNOT be reduced because of Prop 47. 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
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 conviction that you think qualifies, contact us– either by or by submitting your information on the “contact” page here:
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. Contact CWS Defense now or call (949) 251-0330 to schedule the consultation.