Have you suffered a felony conviction for a drug or theft charge that falls within Proposition 47?
As of November 5, 2014, California law has changed and (1) most drug possession for personal use offenses and (2) theft offenses with a loss of less than $950 are now considered misdemeanors. Whether you are on probation, mandatory supervision, PCS or parole, have a pending case, or your case was previously closed and you are no longer under any form of supervision or custodial commitment, this is a very important change in the law that can allow you to significantly change your criminal record. Pending cases are already being impacted and prior convictions can be petitioned to the court to be reduced.
Under Penal Code §1170.18, a person currently serving a sentence, or has completed a sentence, for a conviction of a felony violation of section 11350, 11357 or 11377 of the Health and Safety Code or sections 459.5, 473, 476a, 490.2, 496 or 666 of the Penal Code may be eligible to have the felony conviction designated as a misdemeanor and/or resentenced as a misdemeanor. The conviction will be considered a misdemeanor for all purposes except for possessing firearms.
If you have a conviction on your record that falls under Proposition 47, you are eligible in most cases to have the charge reduced to a misdemeanor. If it is a “closed case” and you have completed the sentence and are not on probation, mandatory supervision, parole, etc, you are entitled to a reduction. If you are still on supervision of any kind, a judge must determine whether reducing the offense to a misdemeanor by resentencing would pose an “unreasonable risk of danger to public safety” in your particular case, which means an “unreasonable risk that the petitioner will commit a new violent felony under [PC 667, subd. (e)(2)(C)(iv)]”.
Theft
Where the value of the theft is $950 or less, Proposition 47 reduces the punishment for most people convicted of forgeries, bad checks, thefts, and shoplifting, from a straight felony or a “wobbler” offense (chargeable as either a felony or misdemeanor), to a straight misdemeanor.
The crimes that are now considered misdemeanors in most cases include:
- Shoplifting of proprerty with a value of $950 or less (This is a new charge. It was formerly categorized as “misdemeanor petty theft” (which is already a misdemenaor); or “second degree” or “commercial” burglary, which can be charged as either a felony or a misdemeanor (a “wobbler” offense))
- Forgery, where the instrument has a value of $950 or less and not charged with identity theft
- Check fraud, where the instrument has a value of $950 or less (unless 3 or more prior convictions for forgery, stolen checks, or passing bad checks)
- Grand theft of property with a value of $950 or less
- Receiving stolen property with a value of $950 or less
- Petty theft with a prior with a value of $950 or less
People who are excluded entirely from these reductions include:
- Those with a prior conviction for the offenses listed in Penal Code §667(e)(2)(C)(iv) (offenses consisting mainly of murders and attempts, sexually violent offenses, non violent felony child molestation, assault with a machine gun on a peace officer, and possession of a weapon of mass destruction), or
- Those convicted of an offense requiring regitration under Penal Code §290(c), or
- a limited number of other specific exceptions appear in some of the statutes defining each offense.
Drug possession
Proposition 47 reduces the punishment for most drug possession offenses for most people convicted of Health and Safety Code §§ 11350, 11357(a), and 11357, from a straight felony or “wobbler”, to a straight misdemeanor.
The crimes that are now considered misdemeanors in most cases include:
- Possession of a controlled substance (heroin, cocaine, etc.) – H & S Code §11350
- Possession of a controlled substance (methamphetamine, PCP, ecstasy, etc) – H & S Code §11377(a)
- Possession of a controlled substance (concentrated cannibis, hash) – H & S Code §11357
People who are excluded entirely from these reductions include:
- Those with a prior conviction for the offenses listed in Penal Code §667(e)(2)(C)(iv)(offenses consisting mainly of murders and attempts, sexually violent offenses, non violent felony child molestation, assault with a machine gun on a peace officer, and possession of a weapon of mass destruction), or
- Those convicted of an offense requiring regitration under Penal Code §290(c), or
- a limited number of other specific exceptions appear in some of the statutes defining each offense.
If you would like to see if your felony conviction can be reduced to a misdemeanor pursuant to the provisions of Proposition 47, you should consult an experienced Orange County criminal defense attorney.In most cases, you only have three years to act from the date the new law went into effect on November 5, 2014. www.labarberalaw.com
