Proposition 47 Passed! What You Need To Do Right Now!

• Many offices and courts have procedures and protocols (some mandatory) already in place for Proposition 47 cases.
  So FIRST find out if your case falls under one of the procedures and protocols. Most cases will be best handled by following those.

• Find out if any of your current, felony not–yet–sentenced cases are affected by Proposition 47. If so, petition to have the charges reduced, with reduced bail, or released from custody.

• Find out if any already felony–sentenced clients or former clients whose cases would be misdemeanors under Proposition 47, are in custody.

• Find out if any felony–sentenced clients or former clients whose cases would be misdemeanors under Proposition 47 have a pending violation for, or are on, probation, parole, or mandatory supervision.

• Find out if any felony–sentenced clients or former clients whose cases would be P47 misdemeanors have completed their sentences.

• Make sure that any new cases are appropriately charged.

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Felony Charges Affected By Proposition 47
If Defendant does not have a disqualifying prior (discussed below)they are:

Commercial Burglary: California Penal Code 459 provides that notwithstanding the burglary statute (which punishes commercial burglary as a wobbler) it is only a misdemeanor for most people to enter a commercial establisment with intent to commit larceny, while it’s open during regular business hours, if the value of the property taken (or intended to be taken) does not exceed $950 in value. Shoplifting as defined can no longer be charged as burglary. New California Penal Code 459.5.

• If the Defendant has a prior conviction for registerable sex offense or a crime specified in Penal Code 667(e)(2)(C)(iv) the crime of shoplifting would be punishable as a felony, likely as a wobbler.

 

Forgery Statutes: California Penal Code 470; 471; 472; 473; 475; 476; 484f; & 484i are now misdemeanors, for most people when the value of the check, bond, bank bill, note, cashier’s check, traveler’s check or money order at issue does not exceed $950 in value, unless a Defendant is also convicted of both forgery and identity theft under Penal Code 530.5 .

• If the Defendant has a prior conviction for registerable sex offense or a crime specified in Penal Code 667(e)(2)(C)(iv) the crime of forgery would be punishable as a felony, likely as a wobbler.

 

Nonsufficient Funds Checks / Check Fraud: – California Penal Code 476a require misdemeanor punishment, for most people who commit the offense when the total amount of checks, drafts or orders with nonsufficient funds not exceeding $950 in value and if the Defendant does not have three or more priors for Penal Code 470, 475, or 476 or any similar out-of-state priors. This is now a misdemeanor.

• If the Defendant has a prior conviction for registerable sex offense or a crime specified in Penal Code 667(e)(2)(C)(iv) the crime of check fraud would be punishable as a felony, likely as a wobbler, regardless of the value of the checks, drafts or orders.
• Under existing law, any check fraud offense may be charged as a felony, irrespective of the value of checks at issue, if the defendant has one or more piror convictions for specified forgery or fraud-related offenses. This changes that to require three or more prior convictions before felony prosecture is permissible irrespective of the value of the check(s).

Grand Theft: California Penal Code 490.2: “Notwithstanding [Penal Code] 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 now a misdemeanor.
Statutes defining “grand theft” (excluding statues that require a value over $950) include PC 484e; 484g; 484h; 487; 487a; 487b; 487d; 487i.

• If the Defendant has a  single prior specified theft, Penal Code 666 would be charged, but only if the Defendant also has a prior conviction for registerable sex offense or a crime specified in Penal Code 667(e)(2)(C)(iv). It would no longer apply to other Defendants without these types of convictions, no matter how many prior theft convictions they have.

 

Receiving Stolen Property: California Penal Code 496 is now a misdemeanor if the value of the property does not exceed $950. It would remain a wobbler when the property is of higher value

• If the Defendant has a prior conviction for registerable sex offense or a crime specified in Penal Code 667(e)(2)(C)(iv) the crime would remain a wobbler, regardless of the property’s value.

Petty Theft With A Prior: California Penal Code section 666 is to be charged when the Defendant has a single prior specified theft conviction, but only if the defendant also has a prior conviction for a registerable sex offense or a crime specified in Penal Code 667(e)(2)(C)(iv) . It would no longer apply to other Defendants without these types of convictions, no matter how many prior theft convictions they have.

Drug Possession: All felony and wobbler simple possession offenses under Health and Safety Code sections 11350, 11357 and 11377 would become one year misdemeanous unless the Defendant was previously convicted of a registerable sex offense or an offense specified in Penal Code 667(e)(2)(C)(iv).
For the small category of Defendants with one of these qualifying prior convictions, a Health and Safety Code Section 11350(a) possession offense would remain a straight felony, while a possession offense under Health and Safety Code section 11357(a) or 11377(a) would likely remain a wobbler.

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The Disqualifying Priors

The above sentencing reductions to straight misdemeanors under Prop. 47 DO NOT APPLY to those with one or more convictions for PC 667 (e)(2)(C)(iv) which include several registerable sex offenses, homicide including attempt and solicitation, life in prison and death offenses; OR an offense requiring 290 registration.

Note: (this does not include all prior strikes, nor all registerable sex offenses.)E.g., residential burglary; and discretionary registration under PC 290.006 are not listed. (Amended PC 666 does include all PC 290 registrants.)

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People Already Convicted

If  a Defendant is serving a sentence for any of the affected statutes, a Defendant may petition for a recall of sentence before the trial court that entered the judgment of conviction. This recall of sentence will be granted unless the court finds that resentencing would pose an unreasonable risk of danger to public safety. The court may put the Defendant on “parole” for 1 year. If sentence is already served, the Defendant can apply to designate the offense as a misdemeanor; with no hearing needed. New PC 1170.18.

• Being on probation, parole, postrelease community supervi-sion or mandatory supervision are not mentioned, but obviously such people must be considered to be either serving, or have served a sentence under PC 117018.

 

Proposition 47 Changes

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1.  Penal Code 459 (Burglary)

Penal Code Section 459.5 is added to read: (a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950. Shoplifting shall be punished as a misdemeanor, Penal Code 459.5 rather than a Penal Code 459 burglary. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.

          Exceptions:

1. Can charge Penal Code 459 (felony or misdemeanor) if business was closed at the time.
2. Can charge PC459 (felony or misdemeanor) if Defendant has prior conviction foroffense listed in Penal Code 667(e)(2)(C)(iv), hereinafter referred to as super     strikes:

1. A sexually violent offense per W&IC 6600(b);
2. Penal Code 288a, 286 or 289;
3. Penal Code 288;
4. Penal Code 187 or 191.5 (including attempts);
5. Penal Code 653f (solicitation to commit murder);
6. Penal Code 245(d)(3)(assault on peace officer/firefighter with machine gun);
7. Penal Code 11418(a)(1) (possession of weapon of mass destruction);
8. Any serious/violent felony punishable by life in prison or death.
9. Can charge Penal Code 459 (felony or misdemeanor) if Defendant is a Penal Code290 registrant may be punished pursuant to subdivision (h) of Section 1170.

2.  Penal Code 470 (Forgery)

Penal Code Section 473 is amended to read:  Forgery is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

(b) Notwithstanding subdivision (a), any person who is guilty of forgery relating to a check, bond, bank bill, note, cashier’s check, traveler’s check, or money order, where the value does not exceed $950, shall be punishable by imprisonment in a county jail for not more than one year.

          Exceptions:

1. Can charge felony if Defendant has prior conviction for super strike above.
2. Can charge felony if Defendant is also charged with Identity Theft (PC 530.5)

                                     

(Conviction of forgery alone will only carry one year misdemeanor maximum.                                   Need conviction for PC 530.5 in addition to keep the forgery a felony.)                                                                                                                      

Note: The list of items in Penal Code 473 is much smaller than the list of items in Penal Code 470(d).  If the item is not listed in 473, it is still an 1170(h) crime under 473(a).  This rule also applies to Penal Code 471, 472, 475, 476, 484f; and 484i(b).  All of these statutes say they are forgeries but are punished under 473 [(a) as an 1170(h) felony if the item is not listed in (b)].  Note that 470a, 470b, 471.5, 474, and 476a through 483.5 are not punished under 473(b) because they separately specify their punishment.

3.  Penal Code 476a (Non Sufficient Funds Checks)

Penal Code 476a is amended to read: (a) Any person who, for himself or herself, as the agent or

representative of another, or as an officer of a corporation, willfully, with intent to defraud, makes or draws or utters or delivers a check, draft, or order upon a bank or depositary, a person, a firm, or a corporation, for the payment of money, knowing at the time of that making, drawing, uttering, or delivering that the maker or drawer or the corporation has not sufficient funds in, or credit with the bank or depositary, person, firm, or corporation, for the payment of that check, draft, or order and all other checks, drafts, or orders upon funds then outstanding, in full upon its presentation, although no express representation is made with reference thereto, is punishable by imprisonment in a county jail for not more than one year, or pursuant to subdivision (h) of Section 1170.

(b) However, 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, the offense is punishable only by imprisonment in the county jail for not more than one year

Exceptions:

1. Felony can be charged if Defendant has prior conviction for super strike above.
2. Felony can be charged if Defendant is a Penal Code 290 registrant.
3. Felony can be charged if Defendant has 3 or more convictions for Penal Code 470, 475, or 476.

4.  Penal Code 487 (Grand Theft and any other section defining grand theft)

Penal Code 490.2 is added to read: (a) Notwithstanding Section 487 or any other provision of

law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed $950 shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170

          Exceptions:

1. Felony can be charged if Defendant has prior conviction for super strike above.
2. Felony can be charged if Defendant is a Penal Code 290 registrant.

         

Note:  Other sections that constitute grand theft include Penal Code 484e(a), 484e(b), 484e(d), 484g, 484h, 487, 487a, 487b, 487d, 487e, 487h, 487i, 487j, and 489.  Must charge as misdemeanor unless value exceeds $950.  Theft of specified fruits, veggies, fish and other agricultural products, autos, firearms and theft from the person under Penal Code 487 are all misdemeanors unless value exceeds $950.

5.  Penal Code 496 (Possession of Stolen Property)

Penal Code 496 is amended to read: (a) Notwithstanding Section 487 or any other provision of

law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceeds $950 shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170  Possession of stolen property is a one year misdemeanor if the value of the property does not exceed $950.

          Exceptions:

1. Felony can be charged if Defendant has prior conviction for super strike above.
2. Felony can be charged if Defendant is a Penal Code 290 registrant.

               

6.  Penal Code 666 (Petty Theft with Prior Convictions)

         

Penal Code 666 is amended to read: (a) Notwithstanding Section 490, any person described in

subdivision (b) who, having been convicted of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496, and having served a term of imprisonment therefor in any penal

institution or having been imprisoned therein as a condition of probation for that offense, and who is subsequently convicted of petty theft, is punishable by imprisonment in the county jail not

exceeding one year, or in the state prison

Exceptions:

1. Penal Code 666/484(a) may only be charged if Defendant has prior conviction for super strike above,
2. Felony can be charged if Defendant is a Penal Code 290 registrant.
3. Felony can be charged if Defendant has been convicted of Penal Code 368(d) or (e).

Note: If one of these three conditions apply, the crime is punishable as a one year misdemeanor or in state prison (not Penal Code 1170(h)).  In all other cases, Defendant cannot be charge with Penal Code 666/484(a).  It’s just another petty theft.

7.  Health & Safety Code 11350(a) (Possession of Cocaine, Heroin, Etc.)

Health & Safety Code 11350 is amended to read: (a) Except as otherwise provided in this division, every person who possesse (1) any controlled substance specified in subdivision (b), (c), (e), or paragraph (1) of subdivision (f ) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in a county jail for not more than one year, except that such person shall instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code

          Exceptions:

1. Can charge felony if Defendant has prior conviction for super strike above.
2. Can charge felony if Defendant is Penal Code 290 registrant.

8.  Health & Safety Code 11357 (Possession of Concentrated Cannabis)

Health & Safety Code 11357 is amended to read: (a) Except as authorized by law, every person who

possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than $500, or by both such fine and imprisonment, except that such person shall instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code

Exceptions:

1. Can charge felony if Defendant has prior conviction for super strike above.
2. Can charge felony if Defendant is Penal Code 290 registrant.

9.  Health & Safety Code 11377 (Possession of Meth, Mushrooms, PCP, etc.)

Health & Safety Code 11377 is amended to read: (a) Except as authorized by law and as otherwise

provided in subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of

Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f ) of Section 11054, or (5) specified in subdivision (d), (e), or (f ) of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year, except that such person shall instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code

          Exceptions:

1. Can charge felony if Defendant has prior conviction for super strike above.
2. Can charge felony if Defendant is a Penal Code 290 registrant.

Appendix 1:  The Offenses Requiring Registration under Penal Code section 290, subdivision (c):

Notes: (1) Offenses are listed in the order they appear in Penal Code §290, subd. (c): 

(c) The following persons shall be required to register:
Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or
an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) and (c) of Section 236.1, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or
any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses

Appendix 2:  The Sexually Violent Offenses in Welfare and Institutions Code section 6600, subdivision (b)

          Notes: (1) Offenses are listed in the order they appear in Welfare and Institutions Code §6600,         

                    subd. (b):

(b) “Sexually violent offense” means the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any
other person, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity, as defined in subdivision (a): a felony violation of Section 261, 262, 264.1, 269,
286, 288, 288a, 288.5, or 289 of the Penal Code, or any felony violation of Section 207, 209, or 220 of the Penal Code, committed with the intent to commit a violation of Section 261, 262, 264.1, 286, 288, 288a, or 289 of the Penal Code.

CHART OF PROP. 47 CHANGES TO CRIMES EFFECTIVE 11/5/2014

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STATUTE	THEN	NOW
PC 459 Commercial Burglary	Wobbler (could charge as misdemeanor or felony)	If committed during business hours and amount stolen or attempted to be stolen is $950 or less, it is now a misdemeanor violation of Penal Code 459.5. Can only charge felony if business closed, Defendant is Penal Code 290 registrant or has prior convictions per Penal Code 667(e)(2)(C)(iv).
PC 470 Forgery (Includes PC 471, 472, 475, 476, 484f and 484i(b).)	Wobbler (could charge as misdemenor or felony)	If item forged is check, cashier’s check, traveler’s check or money order, and the amount does not exceed $950, it is a misdemeanor violation of Penal Code 473 unless Defendant is Penal Code 290 registrant or has prior convictions per Penal Code 667(e)(2)(C)(iv).  If forgery also involves identity theft per Penal Code 530.5, the forgery can be charged as a felony.
PC 476a(a) NSF Checks	Wobbler (could be charged as a misdemeanor or a felony if the amount involved exceeded $450.	If the total amount of all NSF checks does not exceed $950, it is a misdemeanor unless Defendant is a PC 290 registrant, has a priorconvictions per Penal Code 667(e)(2)(C)(iv) or has 3 or more convictions for Penal Code 470, Penal Code 475, or Penal Code 476.
PC 487 Grand Theft (Includes PC 484e(a), 484e(b), 484e(d), 484g, 484h, 487, 487a, 487b, 487d, 487e, 487h, 487i, 487j and 489.)	Wobbler (could be charged as misdemenor or a felony if the amount involved exceeded $950, the item stolen was enumerated fruits/veggies, domestic fowl, fish, an auto or firearm or was taken from person.)	If the value of the item taken does not exceed $950, it is a misdemeanor violation of Penal Code 490.2, petty theft, regardless of the nature of the item stolen and regardless of whether item was taken from the person.  Can only charge a felony if Defendant is a Penal Code 290 registrant or has prior convictions per Penal Code 667(e)(2)(C)(iv).
PC 496(a) Possession of Stolen Property	Wobbler (could be charged as a misdemeanor or felony)	If the value of the property involved does not exceed $950, it is a misdemeanor unless Defendant is a Penal Code 290 registrant or has a prior convictions per Penal Code 667(e)(2)(C)(iv). prior convictions per Penal Code 667(e)(2)(C)(iv).
PC 666/484(a) Petty Theft With Prior Convictions	Where D has 3 or more prior convictions for certain theft offenses, could be charged as a misdemeanor or a felony.	Can no longer charge Penal Code 666/484(a) unless Defendant is a Penal Code 290 registrant, has a prior conviction per Penal Code 667(e)(2)(C)(iv) or prior conviction for Penal Code 368(d) or Penal Code 368(e).  If so, can charge as misdo or felony.  If not, it is a violation of Penal Code 484(a) only.
H&S 11350(a) Possession of Controlled Sub. (Heroin, Cocaine)	Straight felony	Misdemeanor unless Defendant is a Penal Code 290 registrant or has a prior convictions per Penal Code 667(e)(2)(C)(iv).
H&S 11357(a) Possession of Concentrated Cannabis	Wobbler (could be charged as a misdemeanor or felony)	Misdemeanor unless Defendant is a Penal Code 290 registrant or has a prior convictions per Penal Code 667(e)(2)(C)(iv).
H&S 11377(a) Possession of Meth, Mushrooms, PCP	Wobbler (could be charged as a misdemeanor or felony)	Misdemeanor unless Defendant is a Penal Code 290 registrant or has a prior convictions per Penal Code 667(e)(2)(C)(iv).