Proposition 47

October 13, 2014

On November 4, 2014 the California voters passed Proposition 47 (“Prop 47”) downgrading certain enumerated non-violent felonies as misdemeanors under certain conditions. The rational under Prop 47 is to alleviate need of expending judicial resources for non-violent offenders, and apportion the savings into California’s broken public school system.

To be clear, Prop 47 allows a criminal defendant to adjust their prior conviction by petition the court for a reduction of the felony to a misdemeanor so long as certain conditions are met. For instance, Commercial Burglary, a violation of California Penal Code § 459, is a “wobbler offense” giving the prosecuting attorney wide discretion to file charges as a felony or a misdemeanor. With the enactment of Prop 47, the prosecuting attorney no longer has the discretion to file charges as a felony, but instead is confined solely to a misdemeanor on condition that: 1) the defendant has no prior violent felony conviction; 2) the defendant is not a registered sex offender or has a certain sex conviction; 3) the amount taken or attempted does not exceed $950; and 4) the underlying offense occurred during business hours.

Prop 47 is now retroactive which means that from this point forward, certain non-violent crimes must be filed as misdemeanors with the above-referenced conditions, as well as those individuals who suffered from a non-violent criminal conviction prior to the enactment of prop 47. Certain questions that are unclear at this point are whether an “expungement,” correctly referred to as a “dismissal pursuant to P.C. § 1203.4,” has any effect on an individual’s ability to seek relief pursuant to Prop 47 long after they were convicted of a non-violent offense. Under that scenario, a trial court has already determined a criminal defendant has been statutorily rehabilitated and is released from all “penalties and liabilities” from the convicted offense (to a certain extent).

Another question affecting those convicted of a non-violent felony conviction that falls within the class of crimes Prop 47 allows relief, is convictions 10, 20, or even 30 years ago. Specifically, if an individual was convicted of Commercial Burglary, how are they to prove their offense occurred during business hours if all documents, court file, police reports, etc no longer exist? Perhaps the answer lies within tradition, the burden of proof falls on the criminal defendant to prove such fact prior to seeking relief.

There are numerous questions that almost all criminal defense attorneys are waiting for. Namely, how is the California Appellate Court going to rule on the issues presented before them in the next few months? In particular, what is the vehicle used to obtain such relief – i.e., does California now require a petition form similar to a P.C. § 1203.4 petition? Will it require a points and authorities submitted before the trial court? Can a motion pursuant to Prop 47 be brought orally? These are questions most attorneys are waiting for answers before they can confidently speak with a prospective client.

The California Department of Corrections and local county jails expect the early release of approximately 10,000 inmates currently incarcerated.

Listed crimes for Prop 47 Relief:

P.C. § 459 Commercial Burglary
P.C. § 470 Forgery (among many others)
P.C. § 487 Grand Theft
P.C. § 496(a) Possession of Stolen Property
P.C. § 666/484(a) Petty Theft with Prior Convictions
H.S. § 11350(a) Possession of a Controlled Substance
H.S. § 11357(a) Possession of Concentrated Cannabis
H.S. § 11377(a) Possession of Methamphetamine

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