Time Will Soon Run Out for Petitions under Prop 47

ThinkstockPhotos-73979720Those individuals who are currently in custody or who are on probation or who have completed a sentence for one of the decriminalized felonies under Proposition 47 need to act soon. The clock is ticking on the filing deadline for petitions to reduce a felony charge and/or sentence to a misdemeanor, which in most cases is November 4, 2017, three years after the effective date of the The Safe Neighborhoods and Schools Act. See Pen C §1170.18(j).

On November 4, 2014, California voters passed Proposition 47, also known as The Safe Neighborhoods and Schools Act, which made three major changes to sentencing laws:

  1. First, certain theft and drug-possession offenses have been reclassified. Simple drug possession under Health & S C §13350, §11357(a), or §11377 is no longer a felony or wobbler offense but must be charged as a misdemeanor with a maximum punishment of one year in county jail. Other offenses either added to the Penal Code or reclassified as misdemeanors  by the Act include, Pen C §459.5 (shoplifting); Pen C §473 (forgery); Pen C §476a (insufficient funds); Pen C 490.2 (petty theft); and Pen C §496 (receiving stolen property).
  2. Second, defendants currently serving a sentence in either jail or prison for a felony conviction that would have been a misdemeanor had Proposition 47 been in effect at the time of conviction may petition the court for resentencing under current sentencing provisions. Pen C §1170.18(a)–(e).
  3. Third, those defendants who have already completed their sentences for felony convictions that would have been misdemeanors under Proposition 47 may petition the court for reclassification of the felony to a misdemeanor. Pen C §1170.18(f)–(h).

Note that individuals with one or more prior convictions for a serious or violent offense specified under Penal Code §667(e)(2)(C)(iv) or for a sex offense that requires registration under Penal Code §290(c) aren’t eligible for the new misdemeanor resentencing or reclassification provisions. Instead, those people generally remain subject to punishment under Penal Code §1170(h).

For those individuals with only one or two drug or petty theft convictions on their record, the Superior Courts of most counties have made available simple forms that can be easily filled out by petitioners. For those individuals with longer criminal histories, the question of whether they qualify for relief may require expert legal advice. Individuals whose convictions are reduced to misdemeanors should consult an attorney about taking the additional step of expunging their record of those convictions.

Those who can’t afford an attorney should contact their local public defender’s office for advice or for a referral to an attorney or agency that may offer services for a reduced fee. In addition, although the statutory language of Proposition 47 doesn’t seem to offer a role to the prosecutor or leave a judge much discretion when a qualified individual petitions for reclassification, some courts may be providing prosecutors an opportunity to object or argue against reductions in certain situations. Seeking expert advice may be essential in those cases.

For more discussion of the effects of Prop 47, turn to the “crim law bible,” CEB’s California Criminal Law Procedure and Practice, as well as CEB’s California Criminal Sentencing Enhancements.

Other CEBblog™ posts you may find interesting:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

 

2 Responses

  1. […] California chapter of the Continuing Education of the Bar (CEB) recently provided some advice and suggestions for those faced with filing a petition to have a […]

  2. […] Time Will Soon Run Out for Petitions under Prop 47 […]

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