What do I need to file in court, and how do I do it? | Prop 47

Do I have to go to the court where I was sentenced to get a Prop 47 reduction?

Yes, if as a result of your conviction you were sentenced to state prison, or if you were sentenced to probation and are still on probation or completed probation in the county in which your crime occurred. For example, if you've finished your state prison term, apply to the county that sentenced you, even if you no longer live there (or don't live in California, for that matter). If you are on probation and are still in the county that sentenced you, apply to that county.

However, if you were sentenced to probation and your probation was transferred to a different county for supervision (a jurisdictional transfer under Penal Code section 1203.9), the petition should be filed in the last county where probation supervision occurred. For example, if you were convicted in Sacramento County and placed on supervised probation, but then moved to San Diego County and are (or were) supervised by San Diego County probation, the petition should be filed in San Diego.

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I live out of state. Can I get a Prop 47 reduction without going to court?

Yes. Depending on the circumstances, such as a minimal criminal history and the type of charge for which a reduction is requested, a petition can be filed and granted without the need for a court hearing. In these cases, you will not have to travel back to California.

However, you may want to hire a lawyer or request the services of the public defender, especially if previously represented by an attorney already familiar with your case, to insure the request is made correctly and properly served. Once served with a petition, the District Attorney will file a response, and if there is no opposition, a judge can sign an order reducing a charge to a misdemeanor without the need for a court appearance.

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Will the public defender represent me even though they didn't when I was convicted?

In many cases where a petition can be filed, a court hearing will not be necessary. For example, an application to have a felony conviction designated as a misdemeanor, filed by someone who is no longer in custody or probation or parole, when the district attorney has agreed to the redesignation, usually won't result in a court hearing. If a hearing does become necessary and the applicant satisfies the court's criteria for indigency, the court can appoint counsel if the applicant requests it. The Sixth Amendment to the U.S. Constitution, as interpreted by the Supreme Court, gives you the right to counsel in this situation.

Your particular question is whether the public defender (or other court-appointed counsel) would assist a defendant who had private counsel at the time of conviction, but who now cannot afford counsel to assist in the filing of a petition for reduction or resentencing. The answer is the same as explained above: If you are indigent now, for purposes of qualifying for appointed counsel, you can request counsel irrespective of who represented you initially.

Many public defender offices have assigned lawyers to handle the filing of these petitions and applications. Every county will handle the issue of appointed counsel differently. Some counties will require that you file your petition in order to get in court, where you'd make your request for counsel (in this event, you'd have to prepare the petition or application yourself). Other counties may allow you to place your case on the court's calendar, without preparing the petition or application, in order to request the appointment of the public defender for the purpose of filing the application or petition. In the City and County of San Francisco, the Public Defender asks you to fill-out an application for assistance from their office; if you qualify, they will represent you.

To learn which approach your court will take, check with a criminal clerk in the county in which the conviction was finalized.

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Do I need a lawyer to ask the court to reduce my conviction to a misdemeanor under Prop 47?

To petition for a resentencing, or to apply to have your felony conviction designated a misdemeanor, you'll need to file papers with the court and, in some cases, respond in person if the court orders a hearing. It is entirely possible to handle the entire matter on your own, but the ease and success in which you can do that will depend on the specifics of your case.

Filing your papers. Many counties have created their own Prop 47 forms, posting them on their websites or making them available in the office of the county criminal clerk. Along with the forms, some counties have an instruction sheet explaining how to complete and file the form. Nolo has prepared kits for resentencing and redesignation, which will work in most counties (except those whose own forms are mandatory; see the information describing each kit).

Handling the rest of the case. Your request for resentencing or redesignation will be reviewed by the office of the district attorney, who may object if they feel that you do not qualify or would present a danger to others if your request is granted. In this situation, the court may order a hearing, where most people will benefit from the services of a good, local criminal defense attorney. However, if the district attorney does not oppose your request and the court sees no objection, your request may be granted without a hearing, which would not require you to have counsel.

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Can I apply to reduce several felony convictions to misdemeanors using one petition?

Proposition 47 requires you to apply in the county, and before the court, that sentenced you in the first place. This means that for every qualifying conviction, you must go back to the original court; so if your convictions are from different counties, you need to apply to each one. If you have more than one qualifying conviction in the same county, you may be able to apply for a reduction using only one application, but that depends on the courts’ practice in that county (in Amador County, for example, defendants can list multiple qualifying convictions). Call the clerk of the criminal court in the county to learn how that county handles this question.

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Is there a filing fee for applying for a resentencing or a redesignation under Prop 47?

No, there is no filing fee.

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How long will it take the court to rule on my Prop 47 request?

Proposition 47 itself does not set time limits for the court to act on a petition to recall and resentence or an application to redesignate a conviction. The amount of time a court will need will depend on the details of the case, whether the District Attorney objects, whether a hearing is scheduled, and the general workload of the court and the number of such petitions and applications filed. For example, Orange County estimated in February, 2015, that their courts will take between 90 to 120 days; Santa Clara County promises a decision within 60 days; Santa Cruz estimates 30 days. You may get some information by checking the website of your county criminal clerk or public defender’s office or by calling these offices.

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I had a public defender at sentencing. Will I automatically qualify for a PD for my Prop 47 hearing?

As a result of the large number of persons who can take advantage of Proposition 47, many public defender offices across the state, especially in the larger counties, have assigned specific lawyers in their offices to file petitions for all past clients. While every county in California handles the appointment of the public defender in their own manner, the state trend is to file a Prop 47 petition or application on the client's behalf, without the need to first return to court for a determination of current public defender eligibility, when the public defender was the attorney at the time of initial sentencing, no matter when that was.

The situation is different if, at the time of sentencing, you were represented by private counsel but your current financial circumstances make it difficult to re-hire the same attorney. It is best, if possible, to retain the services of your original attorney, as this person has access to the details of your case that may support the granting of a petition. For example, in a case where the value of the property would determine whether a "receiving stolen property" charge (Penal Code section 496(a)) would qualify for a Prop 47 reduction, your original attorney (who has access to the police reports) would be quite helpful. Police reports may tell you whether the amount at issue is over or under the $950 threshold for Prop 47 relief.

However, if you cannot afford the same counsel, you may still obtain appointed counsel. In the example above, once you file your petition or application for reduction and a court date is set for a hearing to determine the value of the property, you'll appear for that hearing and have an opportunity to ask a judge to appoint counsel. In another scenario, if the district attorney objects to your resentencing on the grounds that you pose "an unreasonable risk of danger to public safety," you will again have a court date at which time you could ask for representation, prompting the judge to determine your eligibility for the services of the public defender. This much is clear, however: There doesn't seem to be a right to representation by counsel until you've filed your petition and appeared in court.

Keep in mind is that the working-out of Prop 47 procedures is a very new area of law, and judges want the input from lawyers on both sides. If you initially had a private lawyer but cannot afford to hire your own lawyer now, letting the court clerk know you want to file a petition or application for resentencing or reduction under the provisions of Prop 47, but cannot now afford an attorney, can often set the wheels in motion to have the public defender assist you.

by: , Attorney

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