San Diego Criminal Defense

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San Diego Criminal Lawyer

San Diego Criminal Lawyer | California Propoisition 47 (Prop 47)

California Proposition 47 (Prop 47)

Explained by a San Diego Criminal Lawyer

 

Eligibility & Guidelines

How to Change Your Record Under Prop 47

Prop 47 - Also known as: The Safe Communities and Schools Act reduces the penalties for a number of non-violent crimes from felonies to misdemeanors. The act applies retroactively, and therefore a number of current inmates are eligible for resentencing under prop 47. Even those who have already served their sentence are entitled to have their criminal records changed to reflect the new classifications under prop 47.  

 

Crimes affected by prop 47 are:

 

  • Shoplifting, i.e. Commercial Burglary of $950 or less of a Store during Business Hours (PC §459) 

  • Forgery of $950 or less (PC §470-476)

  • Fraud/Bad Checks of $950 or less (PC §476a)

  • Grand Theft of $950 or less (PC §487) 

  • Petty Theft/Shoplifting of $950 or less (PC §§484, 484/666)

  • Possession of Methamphetamine (HS §11377)

  • Possession of Controlled Substance (HS §11350)

  • Possession of Concentrated Cannabis (HS §11357(a)) 

  • Receiving Stolen Property of $950 or less (PC §496)

 

If you have a previous conviction for a crime requiring registration as a sex offender, violent in nature, or that utilizes a sentencing enhancement - you are presumptively ineligible for prop 47 reductions.  For a list of offenses that will exclude you from qualifying under prop 47, CLICK HERE. 

 

Prop 47 | Eligibility and Guidelines

 

The "Safe Neighborhoods and Schools Act," was passed on November 5th, 2014.  This ballot initiative reduces the penalty for some drug crimes and theft crimes in California, and is retro-active, so those previously convicted can petition for reduced sentencing.   

 

Defintion of Prop 47

 

This ballot initiative reduces the penalty for some drug crimes and theft crimes in California, and is retro-active, so those previously convicted can petition for reduced sentencing.   

 

Crimes Affected by Prop 47 | California

List of Felonies Reduced to Misdemeanors under Prop 47

 

* Grand Theft Firearm - Potentially reduced to misdemeanor if the value of the gun is less than $950. 
 
* Grand Theft Auto - Reduced to misdemeanor if the value of the car is $950 or less
 
* Check Fraud (Bad Check) - Reduced to misdemeanor if the total is less than $950
 
* Felony Shoplifting - Reduced to misdemeanor if the total is less than $950
 
* Receiving Stolen Property - Reduced to misdemeanor if the value of the property is less than $950
 
* Health & Safetey Code 11350 - Possession of a Controlled Substance
 
* Health & Safety Code 11357 - Possession of Concetrated Cannabis
 
* Health & Safety Code 11377 - Possession of Methamphetamine

 

 

Eligibility for Resentencing under Prop 47

 

Who is eligible?

If you have been convicted of a felony under the following penal codes

Eligibility for resentencing under prop 47 depends on a person's criminal history and prior convictions.  If a prisoner is convicted for an inherently violent felony such as rape, murder, sex crimes involving children, or some crimes involving weapons.  

 

Who is Not eligible? 

 
There is no Prop 47 eligibility for those with prior convictions for:
 
* Rape
 
* Murder
 
* Sex Crimes Involving Children
 
* Sex Crimes Requiring Registration
 

Defendants Currently Serving a Sentence for Prop 47 Crimes

 

According to San Diego Criminal Defense Attorney Nicholas J. Moore:

"Defendants currently serving a sentence for a crime affected by Proposition 47 may file a petition for reduction under Prop 47 and the result may substantially reduce that defendant's sentence, or result in their immediate release from prison."

 

People Who Have Already Served a Sentence for a Prop 47 Crime

 

Post-sentencing relief is also available.  For example, if you have been convicted of a felony you cannot serve in the armed forces or serve on a jury.  A prop 47 petition can retro-actively reduce your felony conviciton to a misdemeanor. However a Prop 47 petition will not restore your 2nd amendment gun rights.  

 
 
 
 

How To Change Your Record Under Prop 47

 

(1) You must submit a form to the courthouse in the county in which you were convicted.  

San Diego County

Orange County

Los Angeles County

 

(2) Your request must be submitted by November 2017

 

(3) There is no requirement of a hearing, though the sentencing Judge may choose to hold a hearing, at which your representative can attend.  

 

(4) Be patient - It is estimated that over 10,000 petitions have already been filed, and new filings may not be reviewed for months. For those with loved ones in jail, remember that it is your elected state officials that have slashed the court budgets in recent years - feel free to make some noise, write letters, and make phone calls - it is your right as a citizen to have your voice heard.  

 

 

Frequently Asked Questions About Prop 47:

 

I am currently incarcerated – can I be resentenced?
Yes, if you are currently serving a sentence for one of the above offenses, you may be eligible for resentencing and release. Individuals with specific priors and people registered as sex offenders are excluded. You must petition a judge who has discretion to release as long as there is no unreasonable risk of danger to public safety.

 

 

How do I get resentenced?

Call the public defender's office or the private attorneywho represented you, and they can file a petition for you.

 

 

Can I have my felony conviction changed to a misdemeanor on my old criminal record, even if I am no longer in the criminal justice system?

 

Yes, this law is retroactive, and that means that you are eligible to have any qualifying prior felony convictions reduced to misdemeanors regardless of how long ago you were convicted. This is true even if you were previously denied a reduction from a felony to a misdemeanor by the court during any pre-conviction court hearing, at sentencing, or after requesting an expungement (dismissal in California).

 

 

How do I get my felony record changed?

 

You must file a request in the county that you have a felony conviction. If you were convicted in multiple counties, you must file in each of those counties, you cannot consolidate your case into a single county. Please feel free to use the sample form above, but make sure to check your county court's website to see if they have posted an updated or local form. It is always a good idea to have an attorney review your Prop 47 form before you submit it. If you chose to submit your form yourself, remember to submit a copy to the court clerk and the County's District Attorney’s office. Remember to include a proof of service, or your form may be rejected. 

 

 

Will there be a court hearing?

 

It is possible that the court will hold a hearing. There is no requirement for the court to hold a hearing, unless there is a need to address a question of your eligibility. You may be eligible for representation by a public defender at this hearing (if you financially qualify). 

 

 

Will I get out of Jail if I Receive a Prop 47 Reduction?

 

This answer depends entirely on your criminal record, and whether there are other charges keeping you in custody. Custody time for misdmeanors is limited to a maximum of one year. If you have already served more than the maximum term, you should be released. If you have not served the maximum term of confinement for the misdemeanor charge(s), the court may hold a hearing to determine if your sentence should be reduced, and how it should be reduced. If you have other charges that are holding you in custody, you may not be released even if you receive a reduction on one or more charges.

 

 

Will I get out of Prison if I Receive a Prop 47 Reduction?


It depends if you have other charges keeping you in state prison.  If you have no other charges, you may be released from prison. If your case is reduced to a misdemeanor, your maximum sentence is no more than a year in county jail per charge. You may be transferred to a county jail to serve out the remainder of your sentence (up to 1 year). 

 

 

If my case is reduced from a felony to a misdemeanor, will I be on probation or parole when I am released from jail or prison?

 

The answer ultimately depends on the judge who setenced you and who will resentence you.  If you are resentenced, you should receive a Minute Order from the court before you are released. It is your responsiblility to review this minute order and raise any objections you may have about its contents. 

 

 

If my felony is reduced to a misdemeanor, will I still have to pay restitution?


Yes, and you will also have to pay court costs. A reduction outcome will not decrease any restitution orders, and they will remain in full force and effect because the restitution order is based on the victim's loss, not the classification of the crime as a misdemeanor or felony. Your court fines and fees likely may be decreased if your case is reduced from a felony to a misdemeanor. Refer to your Minute Order when you are released to see how much you owe.

 

 

I have questions about my cases and Proposition 47. Whom can I call for help?

 

Please call the Office of the Public Defender in your county. Each county's public defender office is set-up to handle all questions and requests regarding Prop 47.