Who qualifies for Prop 47 relief?

What does the district attorney have to prove if they think I'm too dangerous for resentencing?

To prevent Prop 47 relief to someone who is otherwise eligible, the District Attorney will have to prove that a defendant either has committed one of the following disqualifying offenses, or presents an "unreasonable risk" of committing one of them. These offenses are:

  • any sexually violent offense or a sex offense against a minor under the age of 14
  • murder, attempted murder, or solicitation to commit murder
  • assault with a machine gun on a police officer or firefighter
  • possession of a weapon of mass destruction
  • any offense punishable in California by life in prison or death, or
  • any crime that will require sex offender registration under Penal Code section 290(c).

Proving a past conviction is usually rather straightforward -- the District Attorney will produce the judgment of conviction. But when the argument is that the defendant poses an unreasonable risk of future crimes, the prosecution's evidence will be less cut-and-dried. The court can consider any of the following information in order to reach the conclusion a defendant would pose an “unreasonable risk of danger to public safety”:

  • a person’s criminal conviction history, including the types of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the length of time since the prior crimes and the petition for Prop 47 relief
  • a person’s record of discipline and behavior while incarcerated, including participation in rehabilitation programs, and
  • any other evidence the court determines is relevant in deciding whether a reduction to a misdemeanor would result in an unreasonable risk of danger to public safety.

by: , Attorney

Can I reduce my felony conviction to a misdemeanor even though I plead guilty to the felony?

Yes, Proposition 47 applies equally to those who who entered a guilty plea and defendants who went to trial and were found guilty. The statute applies to "A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies...." (Calif. Penal Code Section 1170.18(a), italics added.) It doesn't matter whether you plead guilty to an originally charged offense, or to a new offense as the result of a plea bargain. As long as the plea resulted in a conviction covered by Proposition 47, you qualify for relief (unless you're excluded by virtue of enumerated serious offenses on your record). (T.W. v. The Superior Court of Contra Costa County, 2015 DJDAR 5033, April 21, 2015.)

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I’ve tried unsuccessfully to reduce my felony to a misdemeanor. Can I ask for a Prop 47 reduction?

Yes, Proposition 47 applies to all qualifying defendants with felony convictions covered by the law, no matter how old, and even when a previous request was denied. In California, several crimes are known as “wobbler” offenses (an offense that can be charged as either a misdemeanor or felony). When the district attorney charges it as a felony, the defendant has several opportunities to ask the judge to reduce it to a misdemeanor: During trial, pre-conviction; after conviction but prior to sentencing; or after requesting an expungement. Even if you were unsuccessful in any of these attempts, you may proceed with a Prop 47 petition.

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If I qualify for Prop 47 relief, is a reduction to a misdemeanor guaranteed?

There are no guarantees. Even if your conviction is among those that qualify for Prop 47 relief, resentencing as a misdemeanant is not a sure thing. If the court, in its discretion, finds that a person who is currently serving his or her sentence would pose “an unreasonable risk of danger to public safety,” a petition can be denied. The court can make this finding on its own, or after the district attorney has opposed a petition for resentencing. In either event, a "dangerousness hearing" will be held to determine whether a person would pose an unreasonable risk of danger to public safety.

The outcome is different for persons who have completely finished their sentences—those who are no longer in custody, not under any supervision, or not participating in any court-approved program. These defendants, assuming their convictions are among those eligible for Prop 47 relief, and they do not have a prior conviction for a disqualifying offense, are not subject to the “dangerousness” test.

In a dangerousness hearing, the district attorney will have to prove that a petitioner is "likely" to commit one of the following offenses in the future, known as “super strikes” because of their seriousness. They are:

  • any sexually violent offense, or a sex offense against a minor under the age of 14
  • murder, attempted murder, or solicitation to commit murder
  • assault with a machine gun on a police officer or firefighter
  • possession of a weapon of mass destruction
  • any offense punishable in California by life in prison or death, or
  • any crime that will require sex offender registration under Penal Code section 290(c).

The court can consider any of the following information in order to reach the conclusion a defendant would pose an unreasonable risk of danger to public safety:

  • A person’s criminal conviction history, including the types of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the length of time since the prior crime and the petition for Prop 47 relief.
  • A person’s record of discipline and behavior while incarcerated, including participation in rehabilitation programs.
  • Any other evidence the court determines is relevant in deciding whether a reduction to a misdemeanor would result in an unreasonable risk of danger to public safety.

A petitioner would be entitled to court appointed counsel for assistance in this type of hearing, because these issues affect substantial rights.

Like many aspects of Proposition 47 practice, a dangerousness hearing is a bit of a novel court procedure. It will most likely be similar to a hearing on a probation violation, where evidence is presented to a judge, not a jury, and the standard of proof is “a preponderance of the evidence” (more likely than not), not “beyond a reasonable doubt” (the standard for criminal convictions). As these hearings take place and defendants challenge the process and court rulings on appeal, Court of Appeal opinions will appear that will provide guidance to trial courts.

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What convictions qualify a defendant for resentencing or redesignation?

Proposition 47 lists specific crimes that are to be reduced to misdemeanors. In some instances, the new law simply designates them as misdemeanors; in other cases, a new Penal Code section was created to cover the qualifying offense. Qualifying offenses include specific drug and theft crimes:

  • possession of narcotic controlled substances such as cocaine, heroin, morphine, or other opiates (Health and Safety Code section 11350)
  • possession of restricted dangerous drugs, which would include stimulants such as methamphetamines; or hallucinogenics such as psilocybin mushrooms (Health and Safety Code section 11377)
  • possession of concentrated cannabis (also known as hashish). (Health and Safety Code section 11357(a).)

Prop 47 made significant changes to several code sections related to certain theft crimes. The most important change was to take away the prosecution’s discretion in filing these types of crimes as either a felony or a misdemeanor (this option earned these crimes the name “wobblers”). Now, the prosecutor may charge only a misdemeanor if the amount in question is not more than $950. These theft crimes are:

  • Forgery relating to a check, bond, bank bill, note, cashier’s check, traveler’s check or money order. (Penal Code section 473(b).)
  • Attempting to pass a check or use a bank card, knowing there are insufficient funds in the account to cover the withdrawal. (Penal Code section 476a(b).)
  • Petty theft of money, labor, real or personal property. (Penal Code section 490.2(a).)
  • Possessing or receiving property with the knowledge the property is stolen. (Penal Code section 496(a).)
  • Petty theft of money, labor, real or personal property with a prior conviction where a jail term was served for petty theft, grand theft, theft from an elder, auto theft, burglary, carjacking, robbery, or possession of stolen property (Penal Code section 666(a)).

Finally, Prop 47 created a new crime called shoplifting (Penal Code section 459a): entering a commercial building, such as a convenience store, while the establishment is open and during regular business hours, intending to commit a theft of items worth less than $950.

by: , Attorney

Who is ineligible for Proposition 47 relief?

Prop 47 will not help those who have previous convictions for very serious crimes. These include:

  • sexually violent offenses and sex offenses against minors under the age of 14
  • murder, attempted murder, and solicitation to commit murder
  • assault with a machine gun on a police officer or firefighter
  • possession of a weapon of mass destruction
  • any offense punishable in California by life in prison or death, or
  • any person who has been convicted of an offense requiring registration as a sexual offender (Penal Code Section 290(c)). (Note that a judge can order registration for certain other offenses, but may choose not to; these registrations are not included in the Prop 47 exclusion.)

People who are still serving their sentences, and who are “at risk of committing” one of the offenses listed above, may also be excluded from Prop 47’s benefits, even if they have no prior convictions for the listed crimes. To be excluded in this way, the District Attorney will file an opposition in response to a defendant’s petition for Prop 47 relief, and will request what is called a “Dangerousness Hearing.” At that hearing, the District Attorney will have to prove by a preponderance of the evidence that a defendant is at risk of committing one of the referenced offenses in the future.

by: , Attorney

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