How Prop 47 Changed Sentencing + (A List Of Eligible Crimes)

What is Proposition 47?

Proposition 47 was passed into law, with the November 4, 2014 California election. It requires that defendants are sentenced to misdemeanors, instead of felonies, for “non-serious, nonviolent crimes,” unless the defendant has prior convictions for murder, rape, certain sex offenses or certain gun crimes.

• This law is also retroactive, so it also requires that anyone currently serving a sentence for a felony of the included offenses (without prior serious or violent offenses) to be resentenced to a misdemeanor.

Under Proposition 47, the following crimes are now solely misdemeanors:

• Penal Code Section 484: Shoplifting, or Attempted Shoplifting, where the value of property stolen does not exceed $950
• Penal Code Section 487: Grand theft, where the value of the stolen property does not exceed $950
• Penal Code Section 496: Receiving stolen property, where the value of the property does not exceed $950
• Penal Code §470-476: Forgery, where the value of forged check, bond or bill does not exceed $950
• Penal Code §476a: Fraud, or Writing a bad check, where the value of the fraudulent check, draft or order does not exceed $950
• Health & Safety Code Section 11377: Possession of Methamphetamine;  Health & Safety Code Section 11350: Possession of Controlled Substance; Health & Safety Code §11357(a): Possession of Concentrated Cannabis:  Simple possession for personal use of most illegal drugs¹

NOTE:

The law includes simple possession of heroin and cocaine. Prior to Proposition 47, only simple possession of marijuana for personal use was a misdemeanor.

New Misdemeanor Code Section

Proposition 47 also added a new misdemeanor section to the Penal Code: Penal Code section §459.5:  Shoplifting, entering commercial establishment during regular business hours, with intent to commit larceny, where the value does not exceed $950 (or intent to commit larceny does not exceed that amount).

What This Means

If you are charged with one of the above crimes, and eligible for Proposition 47, then you will only be charged with a misdemeanor, which means:

The conviction does not carry state prison time, as a felony conviction does.  Misdemeanor convictions carry 6 months-1 year, as the maximum amount of jail time. With probation, no jail time may be possible.

The conviction does not carry the stigma and weight of being deemed as a “felon” for all purposes

NOTE:

One right that is lost when charged with a felony, that is still not restored under Proposition 47, is the right to own or possess a firearm. You should not possess or own a firearm or you can be charged with a felony for owning or possessing a firearm, even after your case is reduced to a misdemeanor through Prop 47².

The conviction does not carry a fine above $1,000

Are You Eligible For Relief Under Proposition 47?

Yes If:

• You have a current or pending case, for a Proposition 47 charge.
• You are currently serving a sentence, for a Proposition 47 charge.
• You have already been convicted and served your sentence, for a Proposition 47 charge, which will allow you to have the charge reduced and restore your criminal record and rights as a citizen.

NO If:

• You have any serious or violent convictions. For example, rape, murder, possession of weapon of mass destruction³.
• You are registered as a sex offender. For example, under P.C. 290(c), the mandatory sex registration provision.

NOTE: A defendant whose cases is reduced to a misdemeanor pursuant to Proposition 47 is not entitled to have DNA expunged from the state database on that basis.  This does not violate equal protection principles under either the federal or state constitutions.⁴

Examples

Before Proposition 47: 

Herman is sitting in his car using cocaine, and a police car pulls up behind him. The police see that Herman has 100 grams of cocaine open, in addition to the actual cocaine he is using. The officers arrest Herman. Herman is charged and convicted of a felony under Health and Safety Code section 11350 for simple possession of a controlled substance for personal use. With the felony, Herman serves time in jail, loses his right to vote, sit on a jury, and has to inform potential employers that he has a felony conviction, when applying for jobs.

After Proposition 47:

Same scenario. Herman can only be charged and convicted of a misdemeanor conviction. His diligent attorney is able to negotiate a plea that does not include jail time. At the conclusion of his probation, he will be eligible for an expungement, and will not have to inform potential employers that he has been convicted of any crime, when applying for jobs. (EXCEPTION: xxxx)

What This Means:

Simple Possession of a Controlled Substance for personal use, under Health and Safety Code section 11350 is now always charged as a misdemeanor⁵.  Unless Herman was arrested with scales, baggies, or any other indication that he intended to sell the cocaine in his possession, regardless of the amount, Herman can only be charged with a misdemeanor offense under Health and Safety Code section 11350, possession of a controlled substance for personal use.

Legal Update March 22, 2018

The Supreme court has held⁶, that Proposition 47 is not retroactive for people sentenced prior to Proposition 47 even if their cases were not yet final. People who had already been sentenced must request reduction pursuant to Penal Code section 1170.18. 

1. This initiative measure is submitted to the people in accordance with the provisions of Section 8 of Article II of the California Constitution. This initiative measure adds sections to the Government Code, amends and adds sections to the Penal Code, and amends sections of the Health and Safety Code; therefore, existing provisions proposed to be deleted are printed in strikeout type and new provisions proposed to be added are printed in italic type to indicate that they are new. Proposed Law THE SAFE NEIGHBORHOODS AND SCHOOLS ACT SECTION 1. Title. This act shall be known as “the Safe Neighborhoods and Schools Act.” SEC. 2. Findings and Declarations. The people of the State of California find and declare as follows: The people enact the Safe Neighborhoods and Schools Act to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K–12 schools, victim services, and mental health and drug treatment. This act ensures that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed. SEC. 3. Purpose and Intent. In enacting this act, it is the purpose and intent of the people of the State of California to: (1) Ensure that people convicted of murder, rape, and child molestation will not benefit from this act. (2) Create the Safe Neighborhoods and Schools Fund, with 25 percent of the funds to be provided to the State Department of Education for crime prevention and support programs in K–12 schools, 10 percent of the funds for trauma recovery services for crime victims, and 65 percent of the funds for mental health and substance abuse treatment programs to reduce recidivism of people in the justice system. (3) Require misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes. (4) Authorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors. (5) Require a thorough review of criminal history and risk assessment of any individuals before resentencing to ensure that they do not pose a risk to public safety. (6) This measure will save significant state corrections dollars on an annual basis. Preliminary estimates range from $150 million to $250 million per year. This measure will increase investments in programs that reduce crime and improve public safety, such as prevention programs in K–12 schools, victim services, and mental health and drug treatment, which will reduce future expenditures for corrections. [↩]
2. See Also San Francisco Public Defender Prop 47 FAQ Page [↩]
3. http://www.sfpublicdefender.org/wp-content/uploads/sites/2/2014/12/Prop_47_Application_and_FAQs.pdf [↩]
4. In re C.B. (8-30-18, S237801 [↩]
5. Under current law, possession for personal use of most illegal drugs such as cocaine or heroin is a misdemeanor, a wobbler, or a felony—depending on the amount and type of drug. Under this measure, such crimes would always be misdemeanors. The measure would not change the penalty for possession of marijuana, which is currently either an infraction or a misdemeanor. [↩]
6. People v. DeHoyos (3-12-18, S228230) 2018 WL 12475761 [↩]