On November 4, 2014, voters enacted Proposition 47, “The Safe Neighborhoods and Schools Act.” Proposition 47 intends to “ensure that prison spending is focused on violent and serious offenses, maximize alternatives for nonserious, nonviolent crime, and invest the savings generated from” the new act to support elementary and high school programs, victim's services, and mental health and drug treatment. The initiative, integrated into specially enacted Penal Code 1170, seeks to accomplish these goals through four main strategies:
Prop 47's Primary Purposes:
- Reducing most possessory drug offenses and thefts of property valued under $950 from felonies to misdemeanors;
- Creating a process for persons currently serving a felony sentence for theft and drug offenses to petition the court for resentencing as a misdemeanor;
- Creating a process for persons who have completed felony sentences to apply to the court for reclassification of the crime as a misdemeanor; and
- Forming a Safe Neighborhoods and Schools Fund generated by the savings achieved by the change in the sentencing laws.
Our Criminal Defense Attorneys Can Reduce The Following Felonies to Misdemeanors:
In the event that someone has already received a felony conviction involving one or more of the following laws, Criminal Defense Attorneys can reduce the felony conviction to a misdemeanor conviction.
- H&S- 11550 - Under the influence of a controlled substance
- H&S- 11357- Possession of marijuana
- H&S- 11377 - Possession of methamphetamines
- Penal Code- 459.5 - Shoplifting
Per People V. Acosta, 195 cal. rptr. 3d 121, a conviction for burglary of a motor vehicle in violation of Penal Code section 459 does not qualify for prop 47 treatment to reduce a felony to a misdemeanor
- Penal Code- 473 - Forgery
- Penal Code- 476 (a) - Bad check writing or passing
- Penal Code- 492 - Petty theft
- Penal Code- 496 - Receiving stolen property
- Penal Code- 666 - Petty theft with a prior conviction
Our Criminal Defense Lawyers Will Reduce a Felony Conviction to a Misdemeanor Conviction in Various Cases Even if the Defendant has Completed Their Sentence:
Section 1170.18 allows persons who have completed their sentence to apply to the court for reclassification of the offense as a misdemeanor. Section 1170.18(f) provides: “A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this Act had this Act been in effect at the time of the offense may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.”
For persons who have completed their sentence, relief is limited to the reclassification of the offense as a misdemeanor. There is no authority to “vacate” or otherwise alter the sentence previously imposed – such relief is only available to persons currently serving a sentence. (People v. Vasquez (2016) 247 Cal.App.4th 513, 518-519.)
If the petition is granted, “the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor pursuant to” the new penalties. [Penal Code 1170.18(b)].
In People v. Shabazz (2015) 237 Cal.App.4th 303; People v. Contreras (2015) 237 Cal.App.4th 868 and People v. DeHoyos (2015) 238 Cal.App.4th 363 the issue of retroactivity was explored and determined. The following sentencing rules apply to persons sentenced under the new initiative:
Sentenced Before November 5, 2014
If the case has been sentenced prior to November 5, 2014, any request for sentencing as a misdemeanor must occur through a petition for resentencing under Penal Code 1170.18, even though the conviction is not final. Under such circumstances, Proposition 47 grants the trial court discretion to deny resentencing where to do so would pose an unreasonable risk of danger to public safety. (See also Proposition 36, which grants similar discretion.)
Crimes Committed before November 5, 2014 But Sentenced Later
If the crime was committed prior to November 5, 2014, but sentenced after that date, the new sentencing rules will apply to the case. This means that all persons charged with qualified crimes that have not been convicted or sentenced as of November 5th will be entitled to misdemeanor treatment without the need to request any kind of a resentencing under Penal Code 1170.18. The procedures authorized by Penal Code 1170.18 clearly apply only to persons either serving a sentence or who have completed a sentence – circumstances not applicable to persons who have not even been sentenced.
Crime Committed On or After November 5, 2014
If the crime is committed on or after November 5, 2014, the new sentencing rules apply to the case.
Disqualifying Prior Convictions:
A prior conviction of any of the following “serious” or “violent” felonies, now commonly referred to as “super strikes,” will disqualify a person from receiving any benefit from the changes brought by Proposition 47:
- A “sexually violent offense” as defined in Welfare and Institutions Code, Penal Code 6600(b) [Sexually Violent Predator Law]: “ ‘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, or any felony violation of Penal Code 207, 209, or 220 of the Penal Code, committed with the intent to commit a violation of Penal Code 261, 262, 264.1, 286, 288, 288a, or 289 of the Penal Code.”;
- Oral copulation under Penal Code 288a, sodomy under Penal Code 286, or sexual penetration under Penal Code 289, if these offenses are committed with a person who is under 14 years of age, and who is more than 10 years younger than the defendant;
- A lewd or lascivious act involving a child less than 14 years of age, in violation of Penal Code 288;
- Any homicide offense, including any attempted homicide offense, defined in Penal Codes 187 to 191.5, inclusive. Convictions for voluntary manslaughter under Penal Code 192(a), involuntary manslaughter under Penal Code 192(b), and vehicular manslaughter under Penal Code 192(c) will not exclude the defendant from the benefits of the new law;
- Solicitation to commit murder as defined in Penal Code 653f;
- Assault with a machine gun on a peace officer or firefighter, as defined in Penal Code 245(d)(3);
- Possession of a weapon of mass destruction, as defined in Penal Code 11418(a)(1);
- Any serious or violent offense punishable in California by life imprisonment or death.
Each Penal Code section modified or added by Proposition 47 excludes persons with out-of-state prior convictions that would qualify as “super strikes” in California and designated juvenile adjudications.
A person also will be excluded from any of the benefits of Proposition 47 if he or she has committed “an offense requiring registration as a sex offender pursuant to subdivision (c) of Penal Code 290.” The exclusion of Penal Code 290 registrants includes persons required to register as a sex offender as a result of a juvenile adjudication. (People v. Dunn (2016) 2 Cal.App.5th 153.)
The petitioner likely has no right to a jury determination of his eligibility for resentencing. (See People v. Elder (2014) 227 Cal.App.4th 1308, 1315-1316; People v. Bradford (2014) 227 Cal.App.4th 1322, 1331-1336)
Our Criminal Defense Attorneys Will Require The District Attorney to Prove These Elements:
The burden of proving a disqualifying prior conviction is on the District Attorney by a preponderance of the evidence. (See People v. Osuna (2014) 225 Cal.App.4th 1020, 1040). Assuming the petitioner has been convicted of a qualified crime, the burden will be on the prosecution to establish that the petitioner has a prior conviction of a disqualifying “super strike,” or is required to register as a sex offender. The disqualifying prior convictions are referenced in each statute amended or added by the initiative. (See, e.g., Penal Code 476a(b), issuing checks with insufficient funds.) The specific disqualifying convictions are listed in Penal Code 667(e)(2)(C)(iv).
There is no express pleading and proof requirement to disqualify a petitioner from the resentencing provisions of section 1170.18. As a practical matter, however, the prosecution has the burden of proving that the petitioner has suffered a disqualifying prior conviction.
Nothing in Proposition 47 expressly requires a hearing, but one may be necessary to resolve issues of eligibility or to meet the interests of a victim. The hearing will have two phases: a confirmation of the petitioner's eligibility for relief and, if he is otherwise eligible, a determination of whether resentencing will pose an unreasonable risk of danger to public safety. (Penal Code 1170.18(b).)
“Section 1170.18 . . . provides a two-step mechanism.... First, the trial court must determine if the petitioner is eligible for resentencing under section 1170.18 based on a preponderance of the evidence. [Citations.] If the court finds the petitioner eligible, the trial court must determine the factual issue of whether the petitioner presents an unreasonable risk of danger to public safety if resentenced.” (People v. Bush (2016) 245 Cal.App.4th 992, 1001.) Because section 1170.18 does not specify a time of hearing, it should be set within a "reasonable time." The petitioner, the prosecution, and any victim who requests it, have the right to notice of, and to appear at, any hearing held in connection with the qualification and resentencing procedure.
The petitioner will have the initial burden of establishing eligibility for resentencing under section 1170.18(a): i.e., whether the petitioner is currently serving a felony sentence for a crime that would have been a misdemeanor had Proposition 47 been in effect at the time the crime was committed. If the crime under consideration is a theft offense under sections 459.5, 473, 476a, 490.2, or 496, the petitioner will have the additional burden of proving the value of the property did not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875; People v. Rivas-Colon (2015) 241 Cal.App.4th 444.)
The nature of the evidentiary hearing, as explained in People v. Sledge (2016) 7 Cal.App.5th 1089 is as follows: “An eligibility hearing is a type of sentencing proceeding. Nothing in Proposition 47 suggests the applicable rules of evidence are any different than those which apply to other types of sentencing proceedings. Accordingly, limited use of hearsay such as that found in probation reports is permitted, provided there is a substantial basis for believing the hearsay information is reliable. (People v. Arbuckle (1978) 22 Cal.3d 749, 754.
The second phase of the hearing, assuming the petitioner is statutorily qualified to petition for relief, is to determine whether he presents an unreasonable risk of danger to public safety if resentenced. “If the petitioner satisfies the criteria [for resentencing] . . . , the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor . . . , unless the court, in its discretion, determines that resentencing petitioner would pose an unreasonable risk of danger to public safety.” (Penal Code 1170.18(b).) “'Unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of” section 667(e)(2)(C)(iv). (Penal Code 1170.18(c).) “The critical inquiry ... is not whether the risk is quantifiable, but rather, whether the risk would be ‘unreasonable.' ” (People v. Garcia (2014) 230 Cal.App.4th 763, 769).
The initiative defines an “unreasonable risk of danger to public safety” as “an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (c) of paragraph (2) of subdivision (e) of Section 667.” (Penal Code 1170.18(c).) In determining dangerousness, the court may consider three sources of information:
- the petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes;
- the petitioner's disciplinary record and record of rehabilitation while incarcerated; and
- any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety. (Penal Code 1170.18(b).)
Our Criminal Defenses Attorney's Explain How Prop 47 Applies to the Three Strikes law:
- Persons serving second strike sentences for crimes that are made misdemeanors under this act may petition for resentencing. This is subject, of course, to the court's determination of whether the petitioner will pose an unreasonable risk of danger to public safety if resentenced.
- Proposition 47 allows qualified third strike offenders to be resentenced as misdemeanants. Proposition 47 requires qualified persons to receive a misdemeanor sentence, without any consideration of a further prison term either as a second strike or non-strike offender. Again, the court may deny the petition if the person poses an “unreasonable risk of danger to public safety,” as that phrase is defined in the more restrictive provisions of Proposition 47.
- Proposition 47 limits the court's ability to deny a petition based on dangerousness to those cases where a defendant is at risk of committing a “super strike.” The initiative imposes its more restrictive definition of “unreasonable risk of danger to public safety” wherever that phrase is “used throughout this Code.” (§1170.18(c).)
The Hearing Officer:
The petition should be heard by the judge who originally sentenced the petitioner, if available. (Penal Code 1170.18(a).) If for some reason the original judge is unavailable, the presiding judge must designate another judge to rule on the petition. (Penal Code 1170.18(l).) The petitioner may enter a waiver of the right to have the proceeding heard by the original sentencing judge, provided such a waiver is entered prior to any judicial decision on the petition. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279.) Although Kaulick makes no mention of the prosecution's right to have the matter heard by the original judge, presumably both parties must join in the waiver to be effective.
The petitioner has no right to a jury determination of the issue of dangerousness for resentencing. (People v. Jefferson (2016) 1 Cal.App.5th 235, 240-242.)
Right of Victim Participation:
The resentencing hearing is considered a "post-conviction release proceeding" under Article 1, section 28(b)(7) of the California Constitution (Marsy's Law). (Penal Code 1170.18(o).) If requested, the victim is entitled to notice of and to participate in the qualification and resentencing proceedings.
For the most part, the court has complete discretion in the manner of resentencing the petitioner as a misdemeanant. The initiative, however, imposes three specific limitations: (a) In no case may “the term” on resentencing be longer than the term originally imposed. (Penal Code 1170.18(e).)
- In no case may “the term” on resentencing be longer than the term originally imposed. (Penal Code 1170.18(e).) If the Proposition 47 offense is the principal term in a consecutive sentence, it will be necessary for the court to resentence the case with the offense now being a misdemeanor and determine a new principal term. The misdemeanor sentence will be either fully concurrent with or fully consecutive to the other counts;
- The petitioner must be given credit for any time served under the original sentence. (Penal Code 1170.18(d));
- The court must place the petitioner on parole for one year under section 3000.08, unless the court, in its discretion, releases the person from the requirement. (Penal Code 1170.18(d).) Jurisdiction over the adjudication of parole violations will be in the county where the petitioner is released or resides, or in the county where the violation occurs. (Penal Code 1170.18(d).) If the petitioner is resentenced as a misdemeanor on an eligible count, but will remain sentenced as a felon on one or more other counts, the court should resentence on all counts. Time imposed for the misdemeanor may be fully concurrent with or fully consecutive to the remaining felonies;
- The court must place the petitioner on parole for one year under Penal Code 3000.08, unless the court, in its discretion, releases the person from the requirement. (Penal Code 1170.18(d).) Jurisdiction over the adjudication of parole violations will be in the county where the petitioner is released or resides, or in the county where the violation occurs. (Penal Code 1170.18(d).)
Remember, Ronald Dinan and Associates, is a firm of experienced and aggressive criminal defense lawyers, who can help in achieving the best outcome in your case. Many times criminal case dispositions will include reduction or outright dismissal of the number and/or severity of criminal charges, diversion programs, probation, reduced fines with installment payments, alternatives to jail, etc.
To get immediate help with your criminal matter, we invite you to call us to discuss your case. We answer all telephone calls in a polite, professional and helpful manner.
- Santa Rosa - 707-571-5550
- Napa - 707-252-0102
- Marin - 415-491-0223
- Lakeport - 707-262-0503
- Ukiah - 707-462-5950
- Eureka - 707-445-1348
The Actual Law Itself:
The full, lengthy text of proposition 47 can be found at: https://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-laws1.pdf
Penal Code 1170, which has been amended effective 2022, can be found in its current and future version at https://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-laws1.pdf