By Michelle Egberts, Founder/Executive Director, AV-East Kern Second Chance
California voters in November passed Proposition 47, also known as “The Safe Neighborhoods and Schools Act.”
Proposition 47 creates a new Penal Code section, §1170.18, which allows offenders currently serving felony sentences for specified crimes to petition to the sentencing court to have their sentences reduced to misdemeanor sentences.
In addition, certain offenders who have already completed a sentence for a felony that qualifies under the new law may apply to the sentencing court to have their felony conviction designated a misdemeanor.
YOU DO NOT QUALIFY for a reduction of a qualifying felony to a misdemeanor if:
- You must register as a sex offender under Penal Code section 290(c). (Note, if your conviction is for petty theft with a prior theft conviction under Penal Code § 666, you are disqualified for a reduction if you must register under any provision of the Sex Offender Registration Act, Penal Code §§ 290 to 290.024).
- You have a prior conviction for any homicide (Penal Code §§ 187 to 191.5), attempted homicide or solicitation to commit murder.
- You have a prior conviction for a sexually violent offense listed in Welfare and Institution Code section 6600(b). This includes rape, spousal rape, rape in concert, aggravated sexual assault of a child, sodomy, lewd acts on a child under 14, oral copulation, continuous sexual abuse of a child under age 14 and sexual penetration, kidnapping with the intent to commit one of those offenses, and or assault with the intent to commit one of those offenses, 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.
- You have a prior conviction for any serious or violent felony punishable by death or life in prison.
- You have a prior conviction for possession of a weapon of mass destruction.
- You have a prior conviction for assault on a peace officer or a firefighter with a machine gun.
IF YOU HAVE A CONVICTION FOR A QUALIFYING FELONY and you are not disqualified, you may ask your sentencing judge to reduce your conviction to a misdemeanor.
The qualifying felonies are:
- Commercial Burglary (Penal Code § 459) that meets the definition of the new crime of shoplifting (see below for that definition).
- Forgery relating to financial instruments listed in Penal Code section 473(b)(Any check, bond, bank bill, note, cashier’s check, traveler’s check or money order), if amount of the item does not exceed $950, and you were not also convicted of identity theft per PC § 530.5. This will include convictions under Penal Code section 470(a), 470(d), 475 and 476.
- Passing bad checks (Penal Code § 476(a)) if the aggregate amount of the checks does not exceed $950, and you have no more than two prior convictions for violations of Penal Code §§ 470, 475, 476 or 476a.
- Grand theft (Penal Code §§ 487(a)-(d), 487a, 487b, 487c, 487d, 487f, 487g, 487h, 487i and 487j) if the value of the stolen property does not exceed $950.
- Receiving stolen property (Penal Code § 496(a)) if the value of the stolen property does not exceed $950.
- Unlawful possession of a controlled substance (Health and Safety code §§ 11350(a), 11357(a) and 11377(a).
Proposition 47 also created the new crime of shoplifting pursuant to Penal Code section 459.5. Shoplifting is defined as entering a commercial establishment while the establishment is open during regular business hours with the intent to commit larceny where the value of the property taken does not exceed $950. Any act of shoplifting must be charged as shoplifting and may not be charged as burglary or theft.
How to petition the court under Proposition 47
Complete and file a Petition for Recall & Resentencing if you have been convicted either by trial or plea and are currently serving a sentence for an eligible felony charge under Proposition 47. See Penal Code §1170.18 (a) – (e).
Complete and file an Application to Have Felony Conviction Designated as a Misdemeanor if you have been convicted by trial or plea and have completed your sentence for an eligible felony charge. See Penal Code §1170.18 (f) – (i).
The Los Angeles Superior Court has created one form named Application/Petition for Resentencing and People’s Response (CRIM235) that can be used for both Applications and Petitions. The form is available on the Court’s Criminal Forms page [here].
A copy of your Petition or Application must be served on the appropriate office of the District Attorney. The Court will not serve your Petition or Application for you. It can be served by mailing a copy to the District Attorney or by hand-delivering it. If you fail to serve the District Attorney, your Petition or Application will be denied but you will be allowed to refile it after you have served the District Attorney.
A Proof of Service must be filed with the Court at the time that you file your petition or application, showing when and where you served the District Attorney. It must be served by someone other than you, and that person must complete and sign the Proof of Service. You can obtain a blank Proof of Service form from the Court’s Criminal Forms page [here].
Generally, the District Attorney’s offices are located within the courthouse where your case was heard. However, please consult the District Attorney’s web page for a listing of locations and addresses.
Your Petition for Recall and Resentencing will be reviewed by a judicial officer after the time allowed for the District Attorney to file a response has lapsed. If the District Attorney does not oppose resentencing, and the judicial officer concludes that resentencing you would not pose an unreasonable risk of danger to public safety, you will be resentenced to a misdemeanor in accordance with Penal Code §1170.18(a)-(e).
If the District Attorney opposes resentencing, or the judicial officer is unsure whether resentencing you would pose an unreasonable risk of danger to public safety, the judicial officer will set a hearing date and you will be given notice of the hearing. At the conclusion of the hearing, the judicial officer will decide whether to resentence you or not.
Your Application to Have Felony Conviction Designated as a Misdemeanor will also be reviewed by a judicial officer after the time allowed for the District Attorney to file a response has lapsed. If it appears you are eligible for resentencing, the judicial officer will designate your felony conviction a misdemeanor conviction in accordance with Penal Code §1170.18(f)-(i). The clerk will notify you by mail when this happens. As with a Petition, if the District Attorney opposes your Application, you are entitled to a hearing.
If your Petition is granted, you will be subject to parole supervision for one year by the California Department of Corrections and Rehabilitation, unless the judicial officer releases you from parole at the time of resentencing. Parole violation hearings will be heard by the superior court of the county where you are released or reside.
The judicial officer’s decision is final. If you think the judicial officer’s ruling is in error, you may appeal the denial to the Court of Appeal, Second Appellate District. To do so, you must file a Notice of Appeal with the clerk of the Superior Court (not the Court of Appeal) within the time limits allowed for taking an appeal.
[Source: California Superior Court, LA County]
Disclaimer: The views expressed in this article are the author’s own and do not necessarily reflect the views of The AV Times.
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Editor’s Note:The author of this article, community activist Michelle Egberts, hosts a free “Expungement Workshop” on Tuesdays and Thursdays at the Lancaster GROW office, located at 337 East Avenue K-10. She said she submitted this article in hopes of starting a dialogue about Proposition 47. For more information on the “Expungement Workshop,” contact Egberts at 661-418-8361. View a flyer for the workshop here.