California proposition 47 will have an effect on sentencing for current offenses with prior convictions related to theft crimes. Proposition 47 amended existing law regarding different theft and drug crimes. Proposition 47 was in response to several problems with the justice system in California including overcrowding of prisons and jails of persons serving time for non-violent theft and drug crimes. Although no one wants to be convicted of a felony or misdemeanor or serve time in custody, knowing how the new laws affect your rights is important in order to better understand how to defend a criminal prosecution for a theft crime whether it be petty theft or grand theft.
1. Commercial Burglary
Burglary of a store or commercial establishment or a location where people do not reside is referred to as a commercial burglary under California law. Prior to the passage of Proposition 47 in California, a commercial burglary could be charged as a felony or misdemeanor under California Penal Code section 459. With the passage of the new law, there is a new shoplifting statute under California Penal Code section 459. 5 making it a misdemeanor for persons who commit a larceny of property valued at $950 or less. Such misdemeanor can only be charged if the larceny took place during during “regular business hours” at the commercial establishment. Sometimes a person charged with a commercial burglary may still be subject to a felony charge but an experienced criminal defense lawyer may be able to utilize the new shoplifting statute under Penal Code section 459.5 to obtain a reduction of a felony charge depending on the facts of the case and often times the prior record of the defendant.
2. Grand Theft
Prior to the passage of prop 47, California Penal Code section 487 made it a felony to take the property of another that had a value of $400.00 or more. With the passage of the new law, there is now Penal Code section 490.2 which provides in pertinent part that “ Notwithstanding [PC] 487 or any other provision … defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed … $950 … [is] petty theft and [is] a misdemeanor.” California Penal Code statutes defining “grand theft” include Penal Code sections 484e; 484g; 484h; 487; 487a; 487b; 487d; 487i.
3. Check Forging Cases
Traditionally passing a bad check or forging a check is a felony. However, proposition 47 has made it a misdemeanor under California penal code check forging statutes sections 470; 471; 472; 473; 475; 476; 484f; & 484i, subd. (b), if the forgery “relat[es] to a check, bond, bank bill, note, cashier’s check, traveler’s check, or money order, where the value … does not exceed … $950…. Such crimes can still be charged as a felony if the defendant is also convicted of identity theft under California Penal Code section 530.5.
4. Petty Theft with a Prior
Under California Penal Code section 666, a person convicted of petty theft with a prior petty theft conviction could be convicted of a felony or misdemeanor, meaning the charge was a “wobbler” giving the prosecution the discretion to charge a defendant with a felony. Under the passage of proposition 47, petty theft with a prior is a misdemeanor. However, the charge may be treated as a “wobbler” and elevated to a felony if the defendant’s prior conviction D has a prior conviction, with custody, for “petty theft, grand theft, [California Penal Code 368, subds. (d) or (e)], auto theft under [California Vehicle Code] 10851…, burglary, carjacking, robbery, or … felony [PC] 496 (receiving stolen property],and if D also has one of the general Prop 47 disqualifiers (discussed below), or any PC 290 registration requirement (sex registration), or a PC 368, subd. (d) or (e) (elder abuse) (even without custody).
Disqualifying convictions where a person may not utilize the new amended laws under Proposition 47 include situations where a Defendant has one or more strike prior convictions under California Penal Code section 667, subd. (e)(2)(C)(iv) which include several sex offenses where registration is required, homicides including solicitation and attempt, death penalty and life in prison , weapons of mass destruction, and assault with a machine gun on a cop or firefighter.
Challenging Pre-Prop 47 Convictions and Sentences
A defendant who is currently serving a sentence under the pre Prop 47 penal code sections, can petition the superior court judge to recall their sentence to conform with the new law. Such petition will be granted by a court unless the court finds that resentencing a defendant would pose an unreasonable
danger to public safety. The court may put a Defendant convicted of a felony on parole for 1 year. If a defendant has already served his or her sentence sentence is already served, a Defendant can apply to designate the offense as a misdemeanor; with no hearing needed under the new California Penal Code section 1170.18.
California Proposition 47 has amended and created new California Penal Code sections which can be complicated to understand. However, if you want to challenge an old theft related conviction or have been arrested on a new theft case, you should immediately consult with and/or retain a California criminal defense attorney so that you may understand your rights and defend your case in light of the new law passed under California Proposition 47. For any person convicted or facing such convictions living in Los Angeles, Orange County, San Diego, or the Inland Empire, we have a free Prop. 47 hotline to provide information to assist you: Toll Free #866-229-0101.