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Criminal Defense Attorneys

Proposition 47

We are Greg Hill & Associates. If you or a family member want to file a petition for proposition 47, we can help you.

It seems hard to believe, but it has now been almost five years since Proposition 47 (“Prop 47”) was passed by voters into law on November 1, 2014.

While the general rule is that no law is retroactive in effect unless specifically so provided, there are exceptions to this general rule.


One exception is when the new law decreases punishment, which Prop 47 certainly does by reducing certain less serious felony theft offenses and less serious drug offenses to misdemeanors.  Specifically, Prop 47 covers nine offenses (including one new crime, shoplifting, that it created as an offense distinct from petty theft and commercial burglary).  They are:

1.    Penal Code § 459.5, shoplifting, that applies to a entering a commercial building during business hours where the value of the items taken is less than $950.  This new code section has been the subject of dozens of appellate court decision ironing out what is a commercial building or commercial business and how the value of the items is determined.  There are many people who were convicted of felony grand theft or even felony petty theft (a fourth or greater petty theft) that now, under the definition of “shoplifting,” are eligible to have the felony reclassified as § 459.5, a misdemeanor under Prop 47;

2.    Penal Code § 473(b), forgery of checks or other legal documents where value of the theft is less than $950.  There are a surprising number of people with felony forgery convictions when the amount at issue was less than $950 because the offense was not his or her first conviction for this offense.  However, now such folks can have the felony conviction reclassified as a misdemeanor;

3.    Penal Code § 476a, tending a non-sufficient funds (NSF) check of less than $950. This section does not apply if the person has done this three or more times before, retaining some degree of harsher punishment for recidivism / repeat offenders;

4.    Penal Code § 490.2, grand theft where the value is less than $950.  This new code section defines theft in a broad way, helping many with felony convictions for various theft offenses reclassify their conviction as misdemeanor grand theft under 490.2;

5.    Penal Code § 496(a), receiving or concealing stolen property worth less than $950 is now a misdemeanor, so if one was convicted of this as a felony in the past and the value of the stolen property was less than $950, defendant should talk to an attorney about a Prop 47 motion for resentencing on this conviction; and

6.    Penal Code § 666, petty theft with a prior.  This means that petty theft is a misdemeanor now, regardless of the number of prior petty theft convictions.  This is a huge change in the law.  There is an exception to this if the person committed elder abuse theft or certain other non-petty theft priors.

The three Health and Safety Code sections affected by Prop 47 are:
    
1.    Health & Safety Code § 11350, simple possession of heroin, cocaine and many other controlled substances.  There are thousands of people likely affected by this change in the law allowing resentencing of a felony possession for such drugs to a misdemeanor;

2.    Health & Safety Code § 11357(a), simple possession of concentrated cannabis.  It merits mention that Prop 46, the “Adult Use of Marijuana Act” does not address 11357(a), but Prop 47 does and anyone with this conviction as a felony should ask the judge to resentence him or her to a misdemeanor under Prop 47; and

3.    Health & Safety Code § 11377, simple possession of methamphetamine, ecstasy, GHB and many other controlled substances.  This conviction as a felony also affects thousands of people, who now should seek reclassification of the conviction as a misdemeanor.
Not everyone is eligible for resentencing under Prop 47, it should be noted.  There are three exclusions.  If one has an obligation to register as a sex offender under Penal Code § 290, that person is not eligible for Prop 47.  Second, if the person has been convicted of a “Super Strike” offense, which is an offense listed at Penal Code § 667(e)(2)(c)(iv) (i.e. murder, any homicide, solicitation to commit murder, assault with a machine gun on a police officer or fireman, possession of a weapon of mass destruction, or any serious or violent felony punishable by life in prison or death).


Its application to an individual defendant, however, is not automatic as many wrongly believe.  An eligible defendant for reclassification of the offense must bring a petition under Penal Code § 1170.18(f).

If you or a family member would like to file a petition for proposition 47, please call us today for a free 45 minute consultation. You will receive top quality representation for a reasonable fee. (310) 782-2500.



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