Everything You Wanted to Know About Prop 47 but Were Afraid to Ask

• Publication year: 2016
• Author: By Albert Camacho, Jr.

EVERYTHING YOU WANTED TO KNOW ABOUT PROP 47 BUT WERE AFRAID TO ASK

By Albert Camacho, Jr.^*

I. Introduction to Proposition 47

On November 4, 2014, California voters passed Proposition 47, also known as the "Safe Neighborhoods and Schools Act." The purpose of the Act is to "ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for non-serious, nonviolent crime, and to invest the savings generated from the act into prevention and support programs in K-12 schools, victims services, and mental health and drug treatment, while ensuring that sentencing for dangerous crimes such as rape, murder, and child molestation remained unchanged."¹

The Act has three components: first, it changes certain theft-related and drug possession felonies into misdemeanors, if certain conditions are met; second, it allows defendants who are currently sentenced to either prison, county jail, or probationary sentences on these offenses as felonies to be resentenced to misdemeanor sentences, subject to certain limitations; and third, it allows people who were previously sentenced to these felonies in the past and have completed their sentences to now have the convictions designated as misdemeanors, regardless of when the original sentencing occurred.

II. Sentencing Changes Created by Proposition 47

The main thrust of Proposition 47 was the modification of several types of offenses into straight misdemeanors. Crimes such as grand theft, forgery, and simple possession of certain controlled substances, which were either straight felonies or "wobblers," are now misdemeanors only, subject to certain exceptions. Here is a detailed list of all of the sentencing modifications brought about by Proposition 47.

A. Penal Code Section 459.5 Added.

This new section creates a new misdemeanor crime of "shoplifting," which is defined as entering a commercial establishment with the intent to commit larceny while the establishment is open during regular business hours, where the value of the property either taken or intended to be taken is worth $950.00 or less.² Section 459.5 is a misdemeanor only, unless the defendant has one or more priors for an offense found in Penal Code section 667(e) (2)(C)(iv)³ or is required to register as a sex offender under Penal Code section 290(c), in which case the shoplifting is a county jail felony under Penal Code section 1170(h).⁴ NOTE: Prosecutors are barred from filing alternative charges of burglary or theft when the underlying act qualifies as shoplifting.⁵

B. Penal Code Section 473(b) Added.

This addition to the forgery statute states that any forgery relating to a check, bond, bank bill, note, cashier's check, traveler's check, or money order, where the value of the note in question is $950.00 or less is to be punished as a misdemeanor only, unless the defendant has one or more priors for an offense found in Penal Code section 667(e) (2)(C)(iv) or is required to register as a sex offender under Penal Code section 290(c), in which case the forgery is a county jail felony under Penal Code section 1170(h).⁶ EXCEPTION: This subdivision is not applicable to any person convicted of both a forgery count and an identity theft count under Penal Code section 530.5.⁷

C. Penal Code Section 476a Amended.

The amendments are found in section (b), where the amended section now states that if the total amount of all checks, drafts, or orders the defendant is charged with and convicted of making with insufficient funds is $950.00 or less, then the crimes are punishable as misdemeanors only, unless the defendant has one or more priors for an offense found in Penal Code section 667(e)(2)(C)(iv) or is required to register as a sex offender under Penal Code section 290(c), in which case the insufficient funds charges are county jail felonies under Penal Code section 1170(h).⁸ EXCEPTION: If the defendant has three or more priors for Penal Code sections 470, 475, 476, 476a, 484 where the theft was also a violation of sections 470, 475, 476, or 476a, or if the defendant has foreign priors for those same offenses, then this section does not apply, and the offenses are punishable as wobblers, with felony sentences servable in county jail under Penal Code section 1170(h).⁹

D. Penal Code Section 490.2 Added.

This new section redefines grand theft by stating that, notwithstanding Penal Code section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken is $950.00 or less is now considered petty theft and punishable as a misdemeanor only, unless the...