Resentencing Under California's Proposition 47

In November 2014, California voters passed an initiative called the "Safe Neighborhoods and Schools Act." Labeled "Proposition 47" (Prop 47), this initiative reclassified many low level theft and drug possession offenses from felonies to misdemeanors for qualifying defendants. This sweeping change, effective the day after the election, had immediate consequences for:

• Defendants facing current charges, at any stage short of sentencing. The charges were immediately eligible to be downgraded from felonies to misdemeanors.
• Convicted persons serving time or on probation for felony convictions. These people are eligible to petition the court for reclassification of their charges, which could mean immediate release from custody or a downgrade of their probationary status.
• Convicted persons who have finished serving their time and who are no longer on probation or parole. These people are entitled to petition for reclassification of their felonies to misdemeanors.

Who Will Not Benefit From Prop 47?

Not everyone who is facing charges covered by Prop 47, or who has convictions for the crimes the proposition addresses, will benefit from the proposition's reductions. 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 is required to register as a sex offender under Penal Code section 290(c).

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 crimes listed above. To exclude a defendant 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 above offenses in the future. Note how difficult this should prove to be: The prosecutor must prove that the defendant is at risk of committing a far more serious offense than he has ever committed, because having one of these crimes on one's record disqualifies a person from even asking for Prop 47 resentencing.

What Crimes Are Affected?

Proposition 47 targets a limited number of crimes: only drug possession for personal use (not sale or manufacture) and specified theft offenses for amounts less than $950 have been downgraded.

Drug Offenses

Three offenses targeting possession of controlled substances for personal use are now only misdemeanors:

• 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), and
• possession of concentrated cannabis (also known as hashish). (Health and Safety Code section 11357(a).)

For example, possession of cocaine, a violation of Health and Safety Code section 11350, used to be a felony charge. Now it is only a misdemeanor charge, unless the defendant has a prior serious or violent felony charge as explained above (or has been proved to be at risk of committing such an offense). In that case, the charge can remain a felony. Persons previously convicted of this offense, or who are on probation or in a drug diversion program for this offense, are now able to petition the court to reclassify the charge as a misdemeanor (as long as the person isn't excluded, as explained above).

Theft Offenses

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:

• Any type of property theft, when the value of the property is $950 or less (Cal. Penal Code Sections 490.2 and 459.5)
• Receiving stolen property worth $950 or less (Cal. Penal Code Section 496(a))
• Forgery of a check, money order, and so on for $950 or less, unless you were also convicted of identity theft under Penal Code Section 530.5 (Penal Code Section 473(b))
• Petty theft with a prior, unless you have a prior conviction for a theft offense or elder abuse, served a term for the required, and are required to register as a sex offender (Cal. Penal Code Section 666)
• Passing bad checks for $950 or less, unless you have three or more prior convictions for Penal Code Sections 470, 473, 475, or 476 (Cal Penal Code Section 476(a)(b))

Shoplifting

Prop 47 also added a new crime of shoplifting, which formerly could be prosecuted as a theft or burglary charge, regardless of the amount of merchandise involved. This new, separate crime (Penal Code section 459a) is defined as entering a commercial dwelling, such as a convenience store, while the establishment is open and during regular business hours, with the intent to commit a theft, so long as the value of the property is less than $950. This is an important change because the law used to allow this conduct to be charged as commercial burglary, a more serious felony punishable by up to three years in prison; or as a misdemeanor punishable by up to one year in the county jail, within the discretion of the prosecution. Now the act of shoplifting may not be charged as a burglary or any other theft, and is punishable only by a maximum county jail term of 6 months.

Misdemeanors Now Carry a Sentence of 364 Days, Not One Year: Immigration Implications

Misdemeanor sentences in California are now punishable by no more than 364 days, not "one year," as was the case for years. The law specifies that any crime "punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days."

The change came about in stages: as of January 1, 2015, it applied only to crimes committed on or after that date. But as of January 1, 2017, the law is retroactive. This means that defendants who were sentenced and actually served a misdemeanor sentence of 365 days can petition the court to have their sentence reduced to 364 days. (Ca. Penal Code section 18.5).

Legislators had one specific reason for this change: To make certain California misdemeanors ineligible, under federal law, to be the basis of a deportation order from an immigration judge (convictions for certain crimes, for which the sentence is "one year," can form the basis for deportation). And, some misdemeanors are known as "aggravated felonies" under federal immigration law when the judge imposed a sentence of one year (365 days). Affected defendants can ask a judge to lower their imposed sentences by one day, which will avoid that consequence.

For more in this area, see our article on what kinds of crimes would make an immigrant deportable.

Persons Convicted of Prop 47 Felonies

People who have been convicted of Prop 47 felonies, no matter how recently or long ago, are entitled to request resentencing or reclassification as misdemeanants, by filing an application or petition with the court where they were convicted. This applies to those long ago released from custody or probation, and those still serving time. For those still incarcerated, this could mean immediate release from custody followed by a shorter term of parole than would have originally occurred.

People who may benefit from Prop 47 have until November 4, 2022 to file a petition to determine if their convictions are eligible for reduction from felonies to misdemeanors. Their cases can be considered after that date if they can convince the court that their lateness is "for good cause," but that will be a difficult test to meet.

Changing Your Record of Conviction

Many public defender offices around the state have implemented procedures to help their former clients and answer questions about whether the clients are eligible to return to court for resentencing or redesignation. Several county courts and public defender offices have posted forms on their websites that can be used to assist in the petition or application process. Even some district attorney offices (namely those in San Francisco, Santa Clara County, and Los Angeles County) are taking steps on their own to review their files and submit the paperwork necessary to change eligible defendants' records.