How to Reduce a Felony to a Misdemeanor under Proposition 47

On November 5, 2014, California voters passed Proposition 47, the “Safe Neighborhoods and Schools Act.”¹

This initiative reduces the penalties for certain theft crimes and drug crimes in California.²

Specifically, Proposition 47 takes several crimes that were previously felonies or wobblers in California law (meaning that they could be charged as a felony or a misdemeanor), and changes them to misdemeanors in most situations.³

This means that the maximum penalty for these crimes will generally be:

• Up to one (1) year in county jail; and/or
• A fine of up to one thousand dollars ($1,000).⁴

California crimes affected by Prop 47

The felony/wobbler offenses that are changed to misdemeanors under Prop 47 are:

• Grand theft auto, if the car that is stolen is worth nine hundred fifty dollars ($950) or less;
• Grand theft firearm, if the gun that is stolen is worth $950 or less;
• Shoplifting, if the value of the stolen property is $950 or less;
• Penal Code 496 receiving stolen property, if the property received is worth $950 or less;
• California forgery of a check, money order, traveler’s check, etc. (also known as check fraud), that is for $950 or less;
• Violating Penal Code 476a California’s “bad checks” law, if the total amount of check(s) in question is $950 or less;
• Health & Safety Code 11350 possession of a controlled substance;
• Health & Safety Code 11357 possession of concentrated cannabis; and
• Health & Safety Code 11377 possession of methamphetamine.⁵

Eligibility for Proposition 47 sentencing

Under Prop 47, most defendants will be charged with a misdemeanor if they are accused of one of the above-listed crimes.⁶

But some defendants may still face felony penalties for these offenses. The Prop 47 sentence reductions will not apply to:

• Defendants who have previous convictions for certain serious crimes, including rape, murder, and sex crimes against children; and
• Defendants who are required to register as sex offenders for prior sex offense convictions.⁷

Resentencing under Proposition 47

Proposition 47 allows people already facing felony penalties for one of the crimes listed above to bring a motion to modify the sentence (resentencing).⁸

A successful application for resentencing means you will be deemed to have been convicted of a misdemeanor—not a felony—and will be eligible for an earlier release from jail/prison. In some cases, you may be eligible for immediate release.

In this article, our California criminal defense lawyers explain Proposition 47—and how to appeal your sentence if the new law affects you—by addressing the following:

1. Prop 47 Reduction of Felonies to Misdemeanors

1.1. Theft crimes

1.2. Check forgery/check fraud

1.3. Drug crimes

2. Who Is Eligible for Sentencing or Re-sentencing Under Prop 47?

2.1. Sex crimes convictions

2.2. Serious violent felony convictions

3. Appealing Your Sentence under Prop 47

4. The Fight to Pass Proposition 47

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. Prop 47 Reduction of Felonies to Misdemeanors

Proposition 47’s primary impact on California criminal law is to change certain theft and drug offenses from felonies or wobblers to misdemeanors.⁹

A “wobbler” is a California crime that may be charged as either a misdemeanor or a felony at the prosecutor’s discretion, usually depending on:

1. The particular facts of the case, and
2. The defendant’s criminal history.¹⁰

Prop 47 basically removes the option for the prosecutor to charge certain offenses as felonies in most cases. Instead, these offenses will be misdemeanors for most defendants.¹¹

The maximum penalties for a California misdemeanor are:

• Six (6) months or one (1) year in county jail; and/or
• A fine of up to one thousand dollars ($1,000).¹²

In contrast, even the least serious felonies in California carry the following penalties:

• At least sixteen (16) months, two (2) years or three (3) years in prison; and/or
• A fine of up to ten thousand dollars ($10,000).¹³

So for defendants accused (or convicted) of one of the crimes covered by Proposition 47, the initiative could make a huge difference to their sentence.

Example: In October of 2014, Chris is charged with possession of concentrated cannabis under Health & Safety Code 11357.

Because he has previous convictions for misdemeanor marijuana possession and disturbing the peace on his record, the prosecutor decides to charge him with possession as a felony.

Chris’s lawyer informs him that he could be sentenced to up to three (3) years in jail.

However, while Chris is awaiting his trial, Proposition 47 passes. This means that possession of concentrated cannabis will necessarily be a misdemeanor for a defendant like Chris.

So the maximum jail sentence Chris will face is one (1) year.

The crimes that are affected by Prop 47’s passage are:

1.1. Theft crimes

Grand theft auto/grand theft firearm

Proposition 47 provides that all thefts of property worth nine hundred fifty dollars ($950) or less will be considered petty theft—a misdemeanor under California law.¹⁴

The maximum sentence for petty theft is six (6) months in county jail.¹⁵

In contrast, under the previous law, any theft of property from off of someone’s person (as in pickpocketing), and any theft of

• a motor vehicle, or
• a firearm,

was considered grand theft.¹⁶ (This is what gave rise to the terms “grand theft auto” and “grand theft firearm.”)

Grand theft is a wobbler, and grand theft firearm (prior to the passage of Prop 47) was a felony. Each involved a potential jail sentence of up to three (3) years.¹⁷

Example: Carmen is accused of stealing an old, high-mileage car that is not worth more than $500.

Prior to Proposition 47, the prosecutor would have the option of charging her with felony grand theft auto—and probably would have chosen to do so. This would have meant she was facing 16 months to 3 years in jail.

But after Proposition 47, Carmen’s offense is considered petty theft because the car was not worth more than $950.

So her maximum sentence will be 6 months.

Shoplifting

Proposition 47 also clarifies that entering an open business with the intent to steal merchandise will be a misdemeanor, as long as the stolen merchandise is not worth more than nine hundred fifty dollars ($950).¹⁸

This will be known as the offense of shoplifting under Penal Code 459.5 PC.¹⁹ The maximum sentence for shoplifting is six (6) months in county jail.²⁰

In contrast, under pre-Prop 47 law, entering a business intending to steal from it could have been treated as California burglary—which is a wobbler.²¹

Receiving stolen property

Penal Code 496 PC receiving stolen property is typically a wobbler. Prior the passage of Proposition 47, the district attorney had the option of charging it as a misdemeanor if the value of the stolen property was no more than nine hundred fifty dollars ($950).²²

But Prop 47 amended California’s receiving stolen property law to provide that the offense can only be a misdemeanor if the value of the property received is no more than nine hundred fifty dollars ($950).²³

The maximum potential sentence for misdemeanor receiving stolen property under Proposition 47 is one (1) year in county jail.²⁴

Example: Adam helps his brother Tom hide a gun worth $900 that Tom has stolen.

Eventually the brothers are arrested, prior to the passage of Prop 47. Tom is charged with grand theft firearm, and Adam is charged with receiving stolen property as a felony. Adam is convicted and sentenced to 2 years in jail.

But then Proposition 47 passes. Adam’s offense is now only a misdemeanor with a maximum sentence of 1 year.

He and his attorney may apply to get his sentence reduced to what it would be under the new law.

Petty theft with a prior

Prior to the passage of Prop 47, Penal Code 666 PC created the crime of “petty theft with a prior.”²⁵

Under the old version of PC 666, if the defendant in a petty theft case had three (3) or more prior convictions for certain theft crimes, then s/he could potentially receive a felony sentence (16 months to 3 years) for the current petty theft charges.²⁶

But Proposition 47 more or less removed the crime of petty theft with a prior from California criminal law.²⁷

Under the new version of the law, most petty theft cases will be misdemeanors no matter how many prior theft convictions the defendant has.²⁸

A major exception to this, though, is that petty theft with a prior may still be charged if the defendant has a prior theft conviction for theft or embezzlement from an elderly person or dependent adult (a form of Penal Code 368 PC California elder abuse).²⁹

1.2. Check forgery/check fraud

Check forgery

Proposition 47 specifies that Penal Code 470 forgery—which is typically a wobbler—will be a misdemeanor if:

1. The forged document is a check, bond, bank bill, note, cashier’s check, traveler’s check, or money order;
2. The value of the forged check or other document is not more than nine hundred fifty dollars ($950); and
3. The defendant is not also convicted of Penal Code 530.5 PC identity theft.³⁰

The maximum sentence for misdemeanor check forgery/check fraud after Prop 47 will be one (1) year in county jail.³¹

Example: Sarah works as an in-home health care aide for elderly people.

She takes a check from the home of one of her clients, forges the client’s signature on it, and tries to use it to buy a $500 bicycle.

Under California law before Proposition 47, the prosecutor may have been tempted to charge Sarah with forgery as a felony because she betrayed an elderly person’s trust. Her maximum potential sentence would have been 3 years.

But under the law post-Prop 47, Sarah’s offense is a misdemeanor because the check was for no more than $950. Her maximum sentence will be 1 year in county jail.

Bad checks

Also, Proposition 47 amends California’s “bad checks” law, Penal Code 476a PC.

Under the old version of this law, passing bad checks was a wobbler unless the total value of all of the checks or other instruments involved was four hundred fifty dollars ($450) or less, in which case it was a misdemeanor.³²

Under the new law, this offense will be a misdemeanor if the total value of all of the checks or other instruments involved is nine hundred fifty dollars ($950) or less.³³

The maximum sentence for misdemeanor passing bad checks is up to one (1) year in county jail.³⁴

However, the reduced penalties for passing bad checks under $950 do not apply if the defendant has three (3) or more prior convictions for forgery or bad checks³⁵

1.3. Drug crimes

Perhaps the most rational and overdue part of Proposition 47 is its reduction of the potential sentences for several victimless drug crimes.

First of all, Prop 47 turns HS 11350 possession of a controlled substance—which in most cases used to be a felony³⁶—into a misdemeanor with a maximum county jail sentence of one (1) year.³⁷

Second, Proposition 47 turns possession of concentrated cannabis—which used to be a wobbler under Health & Safety Code 11357³⁸—into a misdemeanor carrying a maximum county jail sentence of one (1) year, and a maximum fine of five hundred dollars ($500).³⁹

Finally, Proposition 47 changes the offense of possession of methamphetamine (HS 11377) from a wobbler⁴⁰ to a misdemeanor with a maximum jail sentence of one (1) year.⁴¹

Example: Ralph is arrested for possession of concentrated cannabis in a county where the district attorney is running for election on a “tough on crime” platform.

Ralph is charged with HS 11357 possession of concentrated cannabis as a felony. He is convicted and receives the maximum sentence of three (3) years in jail.

After Ralph is released, Proposition 47 passes. Ralph hires an attorney to apply for a reduction of his conviction from a felony to misdemeanor, as the new law allows.

If successful, Ralph will be able to avoid most of the consequences of a felony conviction on his record.

The following chart summarizes Proposition 47’s changes to the maximum penalties for various crimes.

2. Who is Eligible for Sentencing or Re-Sentencing under Prop 47?

The revised sentencing laws of Proposition 47 do not apply to all criminal defendants.

Specifically, the reduced sentences set forth in this law will not apply to any defendant who either:

1. Is required to register as a sex offender under California’s Sex Offender Registration Act because of a prior sex crime conviction for which registration is mandatory; OR
2. Has a prior conviction for any of a list of relatively serious violent felonies.⁴²

2.1. Sex crimes convictions

The sex crimes convictions that can make a defendant ineligible for a Proposition 47 reduced sentence include:

• most violations of California rape law under the Penal Code’s 261 sections,
• Penal Code 243.4 PC sexual battery,
• most sex crimes involving minors, such as lewd acts with a child and California child pornography crimes,
• forced acts involving oral copulation by force or fear, Penal Code 286 sodomy, and/or Penal Code 289 forcible penetration with a foreign object,
• violations of California “indecent exposure” law, and
• human trafficking for prostitution-related purposes or for child pornography purposes.⁴³

Example: Andre pled guilty to lewd acts with a child fifteen years ago. After two years in prison, he was released on parole. He is required to register as a sex offender in California because of this conviction.

Now, Andre is caught with some cocaine in his car. He is charged with possession of a controlled substance under Health & Safety Code 11350 HS.

But Andre will not be eligible for sentencing under Proposition 47, because he has a prior conviction that requires him to register as a sex offender.

This means that possession of a controlled substance will probably be a felony for Andre—just as it would have been before Prop 47 was passed.

California’s Sex Offender Registration Act also allows judges to require defendants to register even if they aren’t convicted of one of the sex crimes listed in that law. A judge can do this if s/he believes the defendant committed another offense for purposes of sexual gratification.⁴⁴

But people who need to register as a sex offender because of a judge’s order ARE eligible for sentencing under Proposition 47. You are only ineligible for Prop 47 sentencing if you were convicted of one of the offenses specifically listed in the Sex Offender Registration Act.⁴⁵

2.2. Serious violent felony convictions

In addition, convictions for certain serious and/or violent felonies will render a defendant ineligible for sentencing under Prop 47.⁴⁶

These offenses are:

• “Sexually violent offenses” under California law—which means sex crimes committed by use of force, violence, or threat of bodily injury or retaliation;
• Sex crimes against a child under the age of 14;
• Penal Code 187 PC murder or attempted murder;
• Gross vehicular manslaughter while intoxicated Penal Code 191.5 ;
• Solicitation to commit murder;
• Assault with a machine gun on a peace officer or firefighter;
• Possession of a weapon of mass destruction; and
• Any serious and/or violent felony that is punishable by life in prison or death.⁴⁷

Note that this list is significantly shorter than the lists of “serious felonies” and “violent felonies” that count as “strike offenses” under California’s “Three Strikes” law.⁴⁸

This means that you may well be eligible for sentencing under Proposition 47 even if you have one or more “strike offenses” on your record.

Example: Judy has prior convictions for arson and residential burglary—both of which are “strike offenses.”

Now, she is charged with check fraud for knowingly writing checks totaling $600 with insufficient funds in the account.

Neither arson nor burglary is on the list of crimes that make a defendant ineligible for Prop 47 sentencing. So Judy’s current check fraud charges will be subject to Prop 47—which means the offense will be a misdemeanor.

3. Appealing Your Sentence under Prop 47

If you have already been convicted of a felony for a crime that would be a misdemeanor under Prop 47, then you may apply for resentencing under the new law.⁴⁹

Defendants eligible to appeal their sentences under Prop 47 include BOTH

1. those who are currently serving a sentence for a crime affected by the initiative, and
2. those who have completed their sentence for a crime affected by the initiative.⁵⁰

Petition for resentencing

The process is the same both for people currently serving felony sentences, and for people who have completed their felony sentences.

First, the defendant files a petition for resentencing in the court where s/he was originally convicted.⁵¹

Next, the judge determines whether his/her conviction would have been a misdemeanor under Proposition 47.

If it would have been, then the judge is required to grant the petition for resentencing—by changing the conviction to a misdemeanor.⁵²

The only exception is if the judge determines that resentencing the defendant would pose an “unreasonable risk to public safety.”⁵³

An unreasonable risk to public safety means an unreasonable risk that the defendant will commit a new violent felony on the list of crimes (discussed above) that would make him/her ineligible for Prop 47 sentencing (murder, sexually violent offenses, etc.).⁵⁴

In determining whether a defendant poses an unreasonable risk to public safety, the judge may take into consideration:

• His/her criminal history, including type of crimes committed, extent of injury to victims, length of prior prison sentences, and how long ago past crimes were committed;
• The defendant’s disciplinary record and record of rehabilitation while incarcerated; and
• Any other evidence the judge considers relevant.⁵⁵

Defendants currently serving a sentence

According to Los Angeles criminal defense attorney Neil Shouse⁵⁶:

“If you are still serving a felony sentence for an offense covered by Proposition 47, then a successful petition for resentencing will probably result in a material reduction in your sentence—and could possibly mean immediate release from incarceration.”

At the time of Prop 47’s passage, California prison officials had identified almost 5,000 inmates serving felony sentences who would be eligible for resentencing under Prop 47.⁵⁷

With this many people eligible for resentencing under Prop 47, California courts are likely to face a backlog in processing petitions for resentencing. An experienced criminal defense attorney can be an enormous help for current inmates who want to get their sentence reduced in a timely fashion.

People who have already completed their sentences

A petition for resentencing may be less of an urgent matter for people who have already completed felony sentences for crimes that are misdemeanors under Proposition 47—but it is no less important.

For example, a felony conviction on your record can prevent you from

• serving on a jury,⁵⁸ or
• serving in the armed forces.⁵⁹

You are also required to disclose felony convictions to prospective employers—who take such convictions more seriously than misdemeanor convictions.

Thus, having your felony conviction reduced to a misdemeanor under Prop 47 can enhance your life in material ways.

However, there is one consequence of a felony conviction that is not changed by Proposition 47—the removal of your right to own a firearm.⁶⁰

If you were convicted of a felony for an offense that is now a misdemeanor under Prop 47, and you successfully petition for resentencing, you still will not be allowed to own a firearm without violating California’s “felon with a firearm” laws.⁶¹

4. The Fight to Pass Proposition 47

Proposition 47 is a landmark piece of voter-made law in California.

The initiative passed with 58.5% of the vote. Its clear victory shows that Californians have had enough of mass incarceration—and are ready to embrace “smart on crime” approaches instead of “tough on crime” ones.⁶²

Not only will Prop 47 change the lives of people who would otherwise have faced unjustifiably long sentences for minor crimes—it will also save the state of California money. Preliminary estimates of the savings range from $150 million to $250 million every year.⁶³

Under Proposition 47, the money saved from incarcerating fewer people for minor crimes will be used as follows:

• 25% to the State Department of Education, to support programs aimed at reducing truancy and helping students who are at risk of dropping out or becoming crime victims;
• 10% to the California victim compensation fund; and
• 65% to support public agency programs that provide mental health treatment, substance abuse treatment, and diversion programs for people in the criminal justice system.⁶⁴

So it’s not surprising that a wide range of influential organizations supported Prop 47, including the American Civil Liberties Union, the California Catholic Conference—and the rapper Jay Z.

For legal representation…

For questions about Proposition 47 and how to receive a sentence reduction under this initiative, or to discuss your case confidentially with one of our California criminal appellate attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

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