By Dana M. Grimes
Proposition 47 passed with 58% of the vote, and went into effect November 5, 2014.
As a result, for qualifying defendants, most simple possession drug cases are reduced from straight felony or wobblers to straight misdemeanors, as are most theft offenses of $950 or less. It also creates a process for qualified persons who were previously convicted of these offenses as felonies to petition for a reduction to misdemeanors.
California’s Legislative Analyst’s Office compiled a report in July estimating the impact Prop 47 would have on our overcrowded prison system and incarceration costs. The Center on Juvenile and Criminal Justice then expounded upon the Legislative Analyst’s Office report with additional data. In summary, using 2012 as a baseline, the data demonstrated that Prop 47 would lead to about 40,000 fewer charges resulting in incarceration annually. The large savings will now go to programs for drug treatment, schools, and victim services.
The Felonies Affected Are:
Drug Possession, HS §§11350, 11357(a), and 11377, are now misdemeanors.
Commercial burglary, PC 459, where the value of the property “taken or intended to be taken” by “larceny while that establishment is open during regular business hours… does not exceed… $950….” is now a misdemeanor, called “shoplifting.” Shoplifting as defined can no longer be charged as burglary (Codified in a new PC 459.5).
Grand Theft, New PC §490.2, Notwithstanding PC §487 “or any other provision… defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed… $950… [is] petty theft and [is] a misdemeanor.” Statutes defining “grand theft” (excluding statues that require a value over $950) include PC §§484e; 484g; 484h; 487; 487a; 487b; 487d; 487i. There is an issue of whether this will also reach some VC §10851s, (see PC §487(d)(1), grand theft auto.)
Receiving stolen property, PC §496(a), is now a misdemeanor “if the value of the property does not exceed… $950….”
Petty Theft with a prior, PC §666, Note, this amendment is a complex one: counsel should read it carefully. If a defendant is convicted of petty theft, and has a prior, for which he served custody, for petty theft, grand theft, auto theft, burglary, carjacking, robbery, or felony PC §496, AND if he also has one of the general Prop 47 disqualifiers or any PC 290 registration requirement, or a PC §368 (d) or (e), then the petty theft is elevated to a wobbler for that defendant.
Forgery, PC §§470; 471; 472; 473; 475; 476; 484f; & 484i(b), if the forgery “relat[es] to a check, bond, bank bill, note, cashier’s check, traveler’s check, or money order, where the value… does not exceed… $950….” are misdemeanors, unless the defendant is also convicted of identity theft under PC §530.5. (Codified as amended PC §473).
Non sufficient Funds Checks, if “the total amount of all checks, drafts, or orders [that the defendant] is charged with and convicted of making, drawing, or uttering does not exceed… $950…” and if the defendant does not have three or more priors for PC §§470, 475, or 476, or similar out-of-state priors, is now a misdemeanor. (Codified as Amended PC §476a(b)).
Who is Eligible?
A person can be charged at the misdemeanor level, generally, if the person does not have “one or more prior convictions for PC §667(e)(2)(C)(iv)” (which includes several registrable sex offenses, homicides, including attempt and solicitation, life in prison and death offenses, weapons of mass destruction, and assault with a machine gun on a peace officer or a firefighter)]; or for an offense requiring registration under PC §290(c). Note: a defendant may be eligible with certain strikes, like residential burglary, just not the enumerated so-called “super-strikes.” Also, discretionary registration under PC §290.006 is not listed as excluding defendants from misdemeanor treatment. (However, amended PC §666 does include all PC §290 registrants, even discretionary registrants.)
How to Help Clients
This change in the law will largely affect public defender agencies rather than private counsel. Many of these crimes were already wobbler offenses, and clients with retained counsel and first offenses would often get misdemeanor resolutions anyway. However, for certain populations, like people suffering from drug addiction with many prior convictions related to that addiction, this will mean misdemeanor dispositions, less custody, and more money available for treatment for indigent defendants.
Counsel should find out if any pending felony pre-sentencing cases are affected. If so, petition to have the charges reduced (with reduced bail and/or release from custody). Also, look into whether any of your already-sentenced felony clients are still in custody. Clients already convicted, if currently serving a sentence, can petition for recall. Such petitions will be granted unless the court finds that re-sentencing “would pose an unreasonable… danger to public safety.” Additionally, the court may put such defendants on “parole” for one year.
Check to see if any of your former clients whose cases were handled as felonies but would now be misdemeanors have a pending violation, or are on probation or any type of court supervision. (Clients on probation, parole, post-release community supervision or mandatory supervision are not specifically addressed by the new legislation, but arguably such people must be considered to be either serving, or have served a sentence under PC §117018.) If the sentence has already been served, the defendant can apply to designate the offense as a misdemeanor; with no hearing needed. (See new PC §1170.18.)
PERSPECTIVE OF PROP 47 IN 2017
Prop 47 is controversial. Opponents believe that misdemeanor penalties are not enough to deter some people who have made a life style decision to use illegal drugs, and finance the drugs with property crimes. For law enforcement officers, Prop 47 means that the arresting officer will be giving citations to a lot of offenders that previously would have been booked. This saves the officer a lot of time that is involved in taking a subject to jail and booking them. The officers are going to have to pick up many of these defendants a month or two later, after the defendants have not bothered to show up in court, and arrest warrants have been issued for them. Some of these defendants are going to take their citation and go right back to committing low level crimes, but most of them would have been released pretty quickly in any event, on the relatively low bail that has always been on the bail schedule for the types of offenses covered by prop 47. Some addicts are not going to stop using, even temporarily, unless they are in a locked facility. Under the post prop 47 system, these people will eventually end up in front of a judge who will give them at least a couple of months in jail, which will give them time to detoxify and get a fresh start on drug treatment programs.