Being convicted of a felony level offense can be a life changing experience. The consequences can be severe, even after you have served your sentence. Felony convictions can result in difficulty obtaining employment, may trigger disclosure responsibilities during background checks, and may create further unforeseen challenges in day to day life.
Fortunately, some people who were convicted of felony offenses in California are now eligible to have their convictions lowered to a misdemeanor offense. Depending on the circumstances of the case, certain convictions for theft and drug possession can be converted to the lower level category of a misdemeanor, greatly improving quality of life for the convicted person by removing the felony label from their record.
For those convicted and still serving time for certain felony offenses, there is equally good news. California law also allows for reclassification of the underlying offense, potentially reducing the length of the prison sentence. Consequently, it is important to understand which offenses may be eligible for a reduction, and to take action if you have previous convictions that qualify.
In 2014, California passed Proposition 47, creating a law that drastically changed how California charges and sentences many types of simple theft and drug possession cases. The law also provided for prior convictions of such offenses to be reclassified as misdemeanors, regardless of how old the conviction is. Even inmates currently serving time for an eligible offense may have their crime redesignated as a misdemeanor. However, the reclassification will not happen automatically; eligible individuals must take action by petitioning an appropriate court for review.
Proposition 47 takes several offenses that were previously categorized as felonies or straddle offenses - those eligible for prosecution as either a felony or misdemeanor - and makes them misdemeanors. The implication is that these crimes now have a punishment scheme that is generally limited to a maximum of one year in county jail or a fine of not more than $1,000.
There is a fairly wide range of offenses included in the scope of Proposition 47. Several crimes against property are included, but only when the value of the property stolen, received, or fraudulently transferred does not exceed $950. If that condition is satisfied, the following offenses are eligible to be downgraded to misdemeanors: shoplifting, grand theft auto, grand theft firearm, check or money order fraud, passing bad checks pursuant to California Penal Code 476(a), and receiving stolen property. In some cases, defendants may still be subject to a felony classification as detailed below.
Certain drug possession crimes are eligible for reclassification as misdemeanors as well. Those crimes include possession of concentrated cannabis charged under Health and Safety Code 11357, possession of methamphetamine charged under Health and Safety Code 11377, and possession of a controlled substance charged under Health and Safety Code 11350. This should come as welcome news to anyone convicted of a qualifying non-violent drug possession crime. However, as noted below, certain conditions will bar an individual from receiving reclassification.
Conditions Preventing Eligibility For Reclassification
The conditions that trigger automatic ineligibility for reclassification of a prior offense under Proposition 47 are meant to withhold the benefit of reclassification from certain persons convicted of violent or sex-based crimes. The sentence reductions will not apply to anyone convicted of violent felonies including murder, rape, and sex offenses against young minors. Additionally, convicted individuals who are required to register as sex offenders are ineligible.
The above list of convictions that will render a person ineligible for reclassification is not exhaustive. Other violent and sex-based crimes may also preempt eligibility. All sexually violent offenses, which include all sex crimes perpetrated by use of force, violence, or threat of bodily injury, will preclude eligibility. Attempted murder is also a disqualifier, as is solicitation to commit murder. Assault on a police officer or firefighter using a machine gun and all serious felonies punishable by death or life in prison will also disqualify a person from relief under Proposition 47.
While those particular offenses prevent Proposition 47 eligibility, there are a couple of additional offenses that may be less obvious but still have the same preemptive effect. First is gross vehicular manslaughter while intoxicated. If convicted of this offense, a person forfeits the opportunity for resentencing under Proposition 47. The second and final prior conviction that would prevent eligibility is possession of a weapon of mass destruction. Even if you think you may have a prior conviction for any of these offenses, it is wise to consult with an attorney to investigate and determine your options. Actual eligibility for reclassification under Proposition 47 depends on the specific code, section, and subsection of California law that was charged.
Petitioning The Court
The process of asking the court to evaluate and reclassify your offense - legally known as resentencing - has three broad steps. The first step in the process is filing a petition for resentencing in the court where the conviction occurred. The petition must be filed in accordance with all applicable local rules, and must be submitted in a format that is acceptable to the court. After the petition is filed and accepted, a judge will review the petition to determine whether the conviction would be classified as a misdemeanor under Proposition 47. If the judge determines it can be reclassified, the judge then questions whether the individual would pose an unreasonable risk to public safety. Although this determination is somewhat subjective, the guiding principle underlying the inquiry is whether the person is believed to likely commit a new violent felony on the list of excluded offenses detailed above. To reduce the chance of such a finding, the petition should be carefully crafted to present the individual petitioning the court as a low-risk person.
For that reason, an attorney experienced in Proposition 47 casework is highly important. Anyone potentially eligible for resentencing should speak with us immediately. At the Law Offices of Virginia L. Landry, our attorneys will review your record and determine your best strategy.
For more information about resentencing of past convictions, visit
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