Proposition 47 Reduction of Criminal Conviction From A Felony To Misdemeanor

A Guide to Sentencing Under Proposition 47, Effecting Date of 11-5-14

The following offenses in Table 1, except for Penal Code Section 666(a), are misdemeanors, unless the defendant has suffered one or more designated prior convictions.  (See Table 2.) if these is a designated prior, the Defendant may be sentenced to 16 months, 2 years, or 3 years, pursuant to Penal Code Section 1170(h)

Table 1

Crimes reduced to misdemeanors by Proposition 47

Penal Code Section 459 (to shoplift), is now the crime of shoplifting PC Section 459.5(a)

Shoplifting, entering a commercial establishment during regular business hours where the property taken or intended toe taken, is $950 or less.

Can't charge with burglary PC 459 or theft 484-490.5) of the same property.  Penal code Section 459.5(b).

Penal Code Section 473(b)

Forgery relating to a check, bond, bank bill, note, cashier's check traveler's check, or money order, where the value is $950 or less.  This subdivision does not apply if the defendant is convicted of both forgery and identity theft pursuant to Penal Code Section 530.5.

Penal Code Section 476a(b)

If total of all Non Sufficient Funds (NSF) checks in $950 or less.  476a(b) does not apply if the defendant has suffered 3 or more prior convictions of Section 470, 475, 476, 476a, or petty theft which was also a violation of PC 470, 475, 476, or 476a,  Foreign priors with all the elements qualify.

Penal Code Section 484 with prior

See PC 666 below:

PC 484e(a); (b); (d):

Theft of Access cards

PC 484(b)(1); (b)(2)

Theft of fowl, fruits, nuts...Theft of shell fish

PC 487(c)

Theft from person

PC 487(d)(1); (d)(2)

Theft of an automobile or designated animal;  Theft of a firearm

PC 487a

stealing a carcass

PC 487d

Theft from a mining claim

PC 487g

Stealing an animal for medical research

PC 487i

Public housing fraud

PC 490.2(a)

ANY theft of $950 or less is petty theft, punished as misdemeanor.  PC Section 19 sets the maximum punishment at 6 months unless a different punishment is prescribed.

Penal code section 490.2(a):

Notwithstanding section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of them money, labor, real or personal property taken does not exceed nine hundred fifty dollars $950) shall be considered petty theft and shall be punished as a misdemeanor . . ." penal code section 503 et.al, is in this list. Not effort was made to include every conceivable offense which may be classified as theft.

Penal Code Section 496(a)

Possession of stolen property with a value of $950 or less is a misdemeanor.

Penal Code Section 503

Embezzlement is punishable as a theft.  (See Penal Code Section 490a, 514

Penal Code Section 666(a)

Petty theft by a sex registrant (not limited to PC 290(c), or one who has a prior designated in Table 2, or who has served time for a prior conviction for: Robbery (Penal Code Section 211); Carjacking, Penal Code Section 215; Penal Code Section 368(d), (theft from an elder by a non-caretaker), 368(e) Theft from an elder by a caretaker); Burglary Penal Code Section 459; Petty theft Penal Code Section 484; Grand theft (Penal Code Section 487 probably as defined by Prop 47; or felony violation of Penal Code 496 or auto theft under VC 10851

Does not prohibit prosecution under 667(b-i) or 1170.12.

HEALTH AND SAFETY CODE

HS 11350(a)

Possession of a narcotic.  HS 11054(e) [Mecloqualone, methaqualone and GHB] have been added to HS 11350(a)

HS 11350(b)

Former 11350(b) a wobbler, is now included in 11350(a), above

HS 11357

Possession of Concentrated cannabis.

HS 11377

Possession of a controlled substance

PETITION BY INMATE TO RECALL A QUALIFYING OFFENSE UNDER PROP 47

Penal Code Section 1170.18, effective 11-5-14

1.  The petitioner is serving a felony sentence for any of the offenses listed in Table 1, and has not suffered any convictions for an offense listed in table 2.  Penal Code Section 1170.18(i).  (If the defendant does not qualify for re-sentencing, deny the petition.)

2.  If the petitioner is serving a felony sentence for one or more of the qualifying offenses, the sentence shall e recalled and the petitioner re-sentenced, unless the court, in its description determines that the re-sentencing poses an unreasonable risk of danger to public safety.  The risk is defined in Penal Code Section 1170.18(c) as an unreasonable risk that the petitioner will commit a new violent felony as sect out in Penal Code Section 667(e)(2)(C)(iv).

The following prior convictions, description, and Penal Code Sections are of the kind contemplated by PC 117018(c) following the guidelines of 667(e)(2)(C)(iv) as reasons for deny a re-sentencing under Prop 47 due to the sentenced prisoner posing an unreasonable risk.

Any serious or violent felony:

Punishable in California by life imprisonment or death under PC 667(e)(2)(C(iv)(VIII)

PC 187

Murder or attempt. (Any homicide or attempt from 187 to 191.5

PC 191.5

Vehicular manslaughter while intoxicated or attempt.

PC 207

Kidnap to ... Section 262, 262, 264.1, 286, 288, or 289.  (Kidnap , as defined in Penal Code Section 207 does not include attempts to commit a defined sex offense

PC 209

Kidnap to violate PC 261, 262, 264.1, 286, 288, 288a, or 289.

PC 200

Assault to violate 261, 262, 264.1, 286, 288, 288a, or 289.  Penal Code Section 220 specified rape as a designated offense.  It does not use a section number, 261 (rape) or 262 (spouse rape).

PC 245(d)(3)

Assault with a machine gun on a peace officer or firefighter.

PC 261(a)(2)

Rape by Force

PC 261(a)(6)

rape by threat to retaliate

PC 262(a)(2)

Spousal rape by force

PC 262(a)(4)

Spousal Rape by threat to retaliate

PC 264.1

Rape in concert by force or violence

PC 269

Aggravated sexual assault of a child

PC 286(c)(1)

Sodomy with child under the age of 14 and the differential in age of at least 10 years.

PC 286(c)(2)(A)

Sodomy by Force

PC 286(c )(2)(B)

Sodomy by Force upon a child under the age of 14

PC 286(c)(3)

Sodomy by threat to retaliate

PC 286(d)(1)

Sodomy in concert by force ..., threat to retaliate.

PC 286(d)(2)

Sodomy in concert by force upon child less than the age of 14

PC 286 (d)(3)

Sodomy by concert by force upon child 14 or older

PC 288(a)

Lewd Act upon a child under the age of 14

288(b)(1)

Lewd act upon a child by force ...

PC 288(b)(2)

Lewd act by caretaker by force

PC 288a (c)(1)

Oral copulation upon a child under the age of 14 with an age difference of at least 10 years

PC 288a(c)(2)(A)

Oral Copulation by force

PC 288a(c)(2)(B)

Oral copulation by force ... force  upon child under the age of 14

PC 288a(c)(2)(C)

Oral copulation by force...force upon a child age 14 or older

PC 288a(d)

Oral copulation in concert by force.

PC 288.5(a)

Continuous sexual abuse of a child with force ...

PC 289(a)(1)(A)

Sexual penetration by force, etc.

289(a)(1)(B)

Sexual penetration upon a child under he age of 14 by force

PC 289(a(1)(C)

Sexual penetration by threat to retaliate

PC 289(a)2)(C)

Sexual penetration by threat to retaliate.

PC 289j

Sexual penetration upon a child under the age of 14 when the difference in age is 10 years or greater

PC 653f

Solicitation to commit murder

664/191.5

Attempt vehicular man slaughter while intoxicated

664/187

Attempt murder

PC 11418(a)(1)

Possession of a weapon of mass destruction

Consider the criteria set out in Penal Code Section 1170.118(c):

1.  The petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes.

2.  The petitioner's disciplinary record and record of rehabilitation while incarcerated.

3.  Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

Option 1:

The court finds that there is an unreasonable risk that eh petitioner will commit a new violent felony, _____________, because ___________________________________.

Deny the petition.

Option 2:

The Court finds that there is not an unreasonable risk that petitioner will commit a new violent felony as described n Penal Code Section 667(e)(2)(C)(iv) because ____________________________.

Re-sentence the petitioner (can't be longer than the original sentence). Penal Code Section 1170.18(e)

Award credits for time served.  Penal Code 1170.18(d).  (This will be interesting!  The pre-sentence credits will be on the abstract and in the minute order.  Calculate the actual days for all the post sentence days.  I'm thinking in award of 4019 conduct credits wold be appropriate.)

Petitioner may be placed on parole for 1 year.  Report to parole at ____________.

Or, the petitioner may be released from any parole, based on the court's discretion (give reason), Penal Code Section 1170.18.(d).

APPLICATION OR PETITIONER BY A PERSON WHO HAS COMPLETED HIS OR HER SENTENCE TO HAVE THE FELONY OR FELONIES REDUCED TO MISDEMEANORS:

The applicant was convicted of a felony listed in Table 1.

The applicant has not suffered any conviction for an offense set out in Table 2.  Penal Code Section 1170.18(i)

The former qualifying convictions are designated as misdemeanors for all purposes Penal Code Section 1170.18.(f), except:

Cannot own or possess or have in his or her custody or control any firearm.  The reduction to a misdemeanor will not prevent a conviction under Penal Code Section 298000, et.al.

A hearing is not required, unless requested by the applicant.  Penal Code Section 1170.18(h)

If there is a hearing, Marsy's law applies:  Penal Code 1170.18(o)

PC 182(a)

Conspiracy to commit any mandatory sex registration offense

PC 187

Murder or attempt. (Any homicide or attempt from 187 to 191.5)

PC 187

Murder in perpetration or attempt of PC 261, 286, 288, 288(a), 289.

191.5

Vehicular manslaughter while intoxicated or attempt.

PC 207

Kidnap to ... Section 262, 262, 264.1, 286, 288, or 289.  (Kidnap , as defined in Penal Code Section 207 does not include attempts to commit a defined sex offense

PC 207(b)

Kidnap to child molest (effective 1-1-1995 to 1-1-1998)

PC 208(d)

Kidnap to rape, oral copulation, sodomize, penetrate with a foreign object (Effective 1-1-1996-1-1-1998)

PC 209

Kidnap to violate PC 261, 262, 264.1, 286, 288, 288a, or 289.

PC 209

Aggravated kidnap to commit PC 261,286, 288, 288(a), 289, 220 sex registrant offense

PC 220

Assault to violate 261, 262, 264.1, 286, 288, 288a, or 289.  Penal Code Section 220 specifies rape as a designated offense.  It does not use a section number, 261 (rape) or 262 (spouse rape).

PC 220

Assault to commit sex crime

PC 236.1(b)

Human trafficking with intent to effect a designated crime.

PC 236.1(c)

Human Trafficking inducing a minor to engage in prostitution

PC 243.4

Sexual battery

PC 245(d)(3)

Assault with a machine gun on a peace officer or firefighter.

PC 261(a)(2)

Rape by Force

PC 261(a)(6)

Rape by threat to retaliate

PC 262(a)(2)

Spousal rape by force

PC 262(a)(4)

Spousal Rape by threat to retaliate

PC 264.1

Rape in concert by force or violence

PC 264.1

Rape or PC 289(a) in concert

PC 269

Aggravated sexual assault of a child

PC 269

Aggravated sexual assault of a child under the age of 14

PC 272

Contributing ... inolving a lewd act

PC 285

Incest

PC 286

Sodomy.  PC 286(b)(1), voluntary sodomy with a 16-17 year old child, held to be discretionary in P v. Thompson (2009) 177 Cal.Ap.4th 1424.

PC 286(c)(1)

Sodomy with child under the age of 14 and the differential in age of at least 10 years.

PC 286(c)(2)(A)

Sodomy by Force

PC 286(c )(2)(B)

Sodomy by Force upon a child under the age of 14

PC 286(c)(3)

Sodomy by threat to retaliate

PC 286(d)(1)

Sodomy in concert by force ..., threat to retaliate.

PC 286(d)(2)

Sodomy in concert by force upon child less than the age of 14

PC 286 (d)(3)

Sodomy by concert by force upon child 14 or older

PC 288

Lewd act upon a child

PC 288(a)

Lewd Act upon a child under the age of 14288(b)(1)Lewd act upon a child by force ...

PC 288(b)(2)

Lewd act by caretaker by force

PC 288a (c)(1)

Oral copulation upon a child under the age of 14 with an age difference of at least 10 years

PC 288a(c)(2)(A)

Oral Copulation by force

PC 288a(c)(2)(B)

Oral copulation by force ... force  upon child under the age of 14

PC 288a(c)(2)(C)

Oral copulation by force...force upon a child age 14 or older

PC 288a(d)

Oral copulation in concert by force.

PC 288.2(a)

Felony distribution of harmful matter/ minor (Effective 1-1-1990)

PC 288.2(b)

Felony distribution of harmful matter/minor by email, etc ...

PC 288.3

Arranging meeting with a minor for a lewd act. etc.

PC 288.5(a)

Continuous sexual abuse of a child with force ...

PC 288.7(a)

Intercourse or sodomy with a child 10 years or under

PC 288.7(b)

Oral copulation, or sexual penetration/child 10 years or younger

PC 289

Sexual penetration.

PC 289(a)(1)(A)

Sexual penetration by force, etc.

PC 289(a)(1)(B)

Sexual penetration upon a child under he age of 14 by force

PC 289(a(1)(C)

Sexual penetration by threat to retaliate

PC 289(a()2)(C)

Sexual penetration by threat to retaliate

PC 289j

Sexual penetration upon a child under the age of 14 when the difference in age is 10 years or greater

PC 289(d)

Sexual penetration with an unconscious person

PC 289(h)

Voluntary sexual penetration with a child under the age of 18, held discretionary in P v. Ranscht (2009) 173 CA.4th. 1389

PC 311.1

Material depicting a child in sexual conduct

PC 311.2(b)

Distribution, etc. of obscene matter for commercial purposes

PC 311.2(c)

Distribution of obscene matter to someone 18 or older

PC 311.2(d)

Distribution, et., of obscene matter for commercial purposes

PC 311.3

Sexual exploitation/child

PC 311.4

Use of minor in distribution of obscene matter

PC 311.10

Advertising obscene matter depicting minors

PC 311.11

Possession of child pornography

PC 314.1

Indecent exposure

PC 314.2

Indecent exposure

PC 647(a), Former

Loitering at toilet to solicit a lewd act

PC 647.6

Child Annoyance

PC 653f

Solicitation to commit murder

PC 653f(c)

Solicit another to commit forcible rape PC 288(a)(c), 264.1, 288, 289

PC 664/191.5

Attempted vehicular man slaughter while intoxicated

PC 664/187

Attempt murder

664/ any 290(c)

Any attempt on a mandatory sex register-able offense

PC 11418(a)(1)

Possession of a weapon of mass destruction

This is brief overview of the Prop 47 guidelines, not meant for legal advise or to be complete.  There are many strike felonies which are not included in Penal Code 667(e)(2)(C)(iv), Gang crimes, robberies, residential burglaries, etc. i.e., an 11350 with three 211 priors is a misdemeanor.

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