An in-depth look at important changes to the law from your expert criminal defense attorney.
On November 4, 2014, California voters passed Proposition 47, also known as The Safe Neighborhoods and Schools Act (“Prop 47”). This new law went into effect on November 5, 2014. Prop 47 represents the most significant change in California criminal law and sentencing since the passage of AB109 Realignment in 2011. While Prop 47 was widely discussed in the days leading up to the election, there is still confusion about its scope and application. This blog discusses the highlights and key components of Prop 47 as enacted by California voters.
Theft Crimes
Several theft-related crimes are affected by Prop 47.
First, a new crime called “shoplifting” has been created in new Penal Code section 459.5. Previously, prosecutors often charged defendants with a second degree “commercial burglary” as a felony following a simple shoplifting incident, primarily as a way to put pressure on defendants to plead guilty. Prop 47 takes away that tactic. New Penal Code section 459.5 defines a new offense of shoplifting that involves “entering a commercial establishment with intent to commit larceny while it is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty ($950).” This new crime of shoplifting must be filed as a misdemeanor by the prosecution, with a maximum punishment of six months in jail, unless certain exceptions apply (see below) or the value of the property taken exceeds $950. Any other entry into a commercial establishment with intent to commit larceny remains a burglary (for example, if the entry occurred after regular business hours) and can be charged as felony.
Second, forgery under Penal Code section 473 that involves a check, bond, note, cashier’s check, money order, etc. now can only be filed as a misdemeanor if the amount does not exceed $950. The maximum punishment is one year in county jail. Certain exceptions apply (see below).
Third, Penal Code section 476a (commonly referred to as passing bad checks) also has been made a misdemeanor-only offense if the amount of the check is does not exceed $950.
Fourth, pursuant to Penal Code section 490.2, theft of any property where the amount does not exceed $950 can only be punished as a misdemeanor petty theft, subject to the exceptions discussed below.
Finally, similar amendments have been made to Penal Code section 496 (receiving stolen property) to require misdemeanor charges and punishment if the value of the property does not exceed $950.
Drug Possession Crimes
Three common drug offenses have been affected by Prop 47.
First, a violation of Health and Safety Code section 11350(a) (possession of certain controlled substances such as cocaine) is now punishable by a maximum of one year in county jail. Previously, this charge could only be filed as a felony and carried a maximum sentence of three years in county jail.
Second, a violation of Health and Safety Code section 11377(a) (possession of certain controlled substances such as methamphetamine) is now punishable by a maximum of one year in county jail. Previously, this crime could be charged as a felony or a misdemeanor (commonly referred to as a “wobbler”) and, if charged as a felony, carried a maximum punishment of up to three years in county jail.
Finally, possession of concentrated cannabis in violation of Health and Safety Code section 11357(a) now can only be punished as a misdemeanor with a maximum of one year in county jail. Previously, this crime could be punished as a felony with up to three years of confinement in county jail.
Individuals Who Do Not Qualify for Prop 47
Persons who have been convicted of one or more specified serious or violent felonies, certain sex offenses, and/or crimes that require registration under Penal Code section 290 as a sex offender do not qualify for the benefits of Prop 47 if they are charged with the theft or drug crimes that are the focus of Prop 47. Instead, these individuals are subject to the longer punishments recognized under previous law. This exclusion serves one of the purposes of Prop 47, which is to ensure longer sentences for the most serious criminals.
Procedural Issues and Petition for Resentencing
New Penal Code section 1170.18 has been added to allow those defendants who are eligible for a reduction of charges and/or sentence under the provisions of Prop 47 to petition for a recall of sentence before the trial court that entered the original judgment. The practical mechanics of processing what will surely be many petitions is currently being evaluated by the courts, and processing guidelines are being drafted for implementation.
If the defendant meets the criteria in the statute, and the court does not believe the defendant poses an “unreasonable risk of danger to public safety” the defendant’s sentence will be reduced. An “unreasonable risk of danger to public safety” is defined as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of Penal Code section 667(e)(2)(C)(iv).
The petition described in Penal Code section 1179.18 must be filed within three years of the passage of Prop 47 (i.e., on or before November 5, 2017) unless good cause can be shown as to why the petition was not filed within the three year period.
It should be noted that even if a petitioner gets a reduction of his or her sentence under Prop 47, that reduction of sentence does not permit that person to own, possess, or have in his or her custody or control any firearm if the person is already subject to a firearms restriction.
Conclusion
Prop 47 provides an opportunity for persons charged with certain theft and drug charges to obtain more lenient sentencing. If you have already been sentenced or have completed your sentence, but believe you may qualify for reduction under Prop 47, contact Chambers Law Firm to discuss your case.
Obviously, this blog only covers the highlights of Prop 47 and not all questions can be answered here. Also, some aspects of Prop 47 will be the subject of litigation and interpretation by the courts. Chambers Law Firm is your Southern California criminal defense firm for answering all of your Prop 47 questions. Call today about your Southern California theft or drug case to see if you can benefit from this new law.
A link to the text of the new law can be found by clicking here.
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