Proposition 47 News

As you are undoubtedly aware, the electorate overwhelmingly passed Proposition 47 on Tuesday. The new and amended statutes found in Proposition 47 went into effect yesterday. (The Proposition is attached.) As a general matter, several theft and drug possession statutes have been amended so that the crimes are now punishable only as misdemeanors subject to the very limited exceptions that felony liability may still be imposed if the defendant has been previously convicted of: (1) one of the very few “violent” felonies specified in Penal Code section 667, subdivision (e)(2)(C)(iv); or (2) a sex offense that requires registration under Penal Code section 290. I have attached a list of those crimes that are likely affected by the statutory revisions. Please note that the list is provisional and is not necessarily complete. As with most matters, the contour of the list will likely be subject to litigation.

It is important to note that the new law likely applies to “mixed” sentence situations where the defendant has received a sentence for both qualifying and non-qualifying offenses. In this circumstance, it can be argued that the theft or drug offense should be reduced to a misdemeanor even if the non-qualifying felony is not subject to change. For example, if the defendant received a three year term for an assault with a deadly weapon and an eight month consecutive term for a felony drug possession, the defendant can seek a reduction of the drug offense to a misdemeanor even though no challenge exists to the three year term for the assault.

Proposition 47 allows for two forms of retroactive relief. First, if a defendant is “currently serving a sentence” for a crime which is now redefined as a misdemeanor, the client may petition the Superior Court for a reduction to a misdemeanor. (Penal Code section 1170.18.) Relief must be granted unless the defendant poses an “unreasonable risk of danger to public safety.” (Section 1170.18, subd. (b).) “Unreasonable risk of danger to public safety” is very narrowly defined as presenting a risk that the defendant will commit one of the “violent” felonies specified in Penal Code section 667, subdivision (e)(2)(C)(iv). The specified felonies essentially involve homicide, sex crimes, use of a machine gun against a police officer, possession of a weapon of mass destruction and crimes carrying a life sentence. Needless to say, relief should be granted for the vast majority of petitioners. Second, if a defendant has “completed” his or her sentence, a petition lies to have the conviction reduced to a misdemeanor. (Section 1170.18, subd. (f).) This form of relief is not subject to the “unreasonable risk of danger to public safety” restriction. It is important to note that a person is ineligible for relief under either provision if he or she has a prior conviction for one of the “violent” felonies specified in section 667, subdivision (e)(2)(C)(iv). (Section 1170.18, subd. (i).) Finally, there is a three year statute of limitations (November 5, 2014 to November 4, 2017) for seeking retroactive relief under either provision. (Section 1170.18, subd. (j).)

With respect to cases pending on appeal, we have identified three areas which require immediate attention if you have a case that falls within the following categories. As always, please feel free to contact your SDAP buddy if you would like further guidance on any particular case or situation.

First, if you have a theft or drug possession case where the client lost at a Penal Code section 1170.126 hearing, the client may now be eligible for a reduction to a misdemeanor under section 1170.18. A petition should be promptly filed in the Superior Court.

Second, if you have a case where the client lost at a Penal Code section 1170.126 hearing based on the court’s finding that he or she posed an “unreasonable risk of danger to public safety,” it should now be argued that the case must be remanded to the trial court for reconsideration pursuant to the new definition of this statutory term. This argument lies since the new definition was made applicable to all portions of the Penal Code. (Section 1170.18, subd. (c).) We have attached a sample brief that advances this argument. If your case is still pending in the Court of Appeal, the argument should be made in the AOB or a supplemental AOB. If an opinion has issued and the Court of Appeal still has jurisdiction (i.e. up to 30 days after issuance of the opinion), a petition for rehearing should be filed. If the Court of Appeal has lost jurisdiction, the issue should be raised in the petition for review with a request that the case be remanded to the Court of Appeal for consideration of the new claim.

Third, if you have a case where the client is “currently serving a sentence” for one of the crimes affected by the new law, you should take active steps to ensure that a petition is immediately filed in the Superior Court. As a first step, you should contact trial counsel to ascertain whether he or she is able to promptly file the petition. If trial counsel is not helpful, you should go forward and file the petition. As we understand the law, the petition need only be a bare bones document that states the petitioner’s eligibility and requests resentencing. (Section 1170.18, subd. (a).) As of this writing, the Santa Clara County Public Defender has identified Mairead O’Keefe as their point person for handling Prop 47 petitions. If you have a case where the Public Defender was trial counsel, you should contact Ms. O’Keefe to confirm that your client is on her list. Ms. O’Keefe can be contacted at As we go forward, we will provide you with additional contact information if the other Public Defender Offices in the Sixth District designate a point person. However, you should immediately take action without awaiting that information.

Finally, it is important to note that Penal Code section 1170.18 does not provide definitions for “currently serving a sentence” or “completed” a sentence. Given this omission, a contested issue may arise as to whether someone on probation qualifies for present relief under section 1170.18 if they are not in physical custody. Until such time as the issue is resolved, we should take the position that a person in this situation qualifies for relief as someone “currently serving a sentence.

If a court asserts that it does not have jurisdiction because an appeal is pending, there is a sample brief to address this.

Text of Proposition 47

Statutes affected by Proposition 47

The superior court has jurisdiction when an appeal is pending

Briefing on Prop. 47's affect on the Three Strike Reform Act

Prop. 47 applies to Those not yet Sentenced

Prop. 47's applies to Receiving a Stolen Car

(November 20, 2014, Updated June 10, 2015)

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