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Reducing a Felony Under Proposition 47

Oct 07, 2016. By William Kroger.

Los Angeles criminal defense attorney, William Kroger has a team of attorneys who represents people accused of crimes not only in Los Angeles, but San Diego to San Francisco too. Many of those defendants are eligible to have a conviction reduced under a fairly new law.

In 2014 California voter's passed Proposition 47 which makes certain drug-related and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. The new law reduced many crimes which could be prosecuted as a felony or misdemeanor (“wobblers”) to a misdemeanor. The new law allows a defendant to apply to the court to convert a felony to a misdemeanor as well. The advantage of having a crime classified as a misdemeanor would be the ability to own a firearm, retain a professional license, or not be impeached in a civil proceeding. The exemption does not apply to a misdemeanor domestic violence conviction and being barred from owning a firearm. (Enos v. Holder (E.D.Cal. 2012) 855 F.Supp.2d 1088.)

A recent decision by the Court of Appeal, found “Unlawful driving or taking of a vehicle should not be considered eligible for resentencing under Pen. Code, § 1170.18, because a conviction does not require obtaining property by theft.” (People v. Sauceda (Sep. 23, 2016, No. F071531) ___Cal. App. 5th___ [2016 Cal. App. LEXIS 792, at *1].) The Sauceda court went placed parameters under the new law, “Thus, if one's conviction does not necessarily require a conviction for theft, the property has not been obtained by theft. Upon a conviction of the law generally, one is not guilty of obtaining any property by theft because the law has not required proof of intent to permanently deprive and, thus, none of the crimes covered by California's theft statute have been necessarily met.”

An alternative to Proposition 47 would be to ask the court to reduce the charge to a felony once the sentence is served under Penal Code § 17. “Once a trial court exercises its jurisdiction by taking action that characterizes an alternatively punishable offense as a misdemeanor, defendant's subsequent conduct will not convert his crime to a felony so as to subject him to state imprisonment.” People v. Hannon (1971) 5 Cal 3d 330, 96 Cal Rptr 35, 486 P2d 1235, 1971 Cal LEXIS 255.

Once a felony is reduced to a misdemeanor, it then allows the court to expunge the conviction. In short, once a petition under Penal Code § 1203.4 is granted, the slate is wiped clean for the most part, subject to reinstatement only when person commits another or subsequent crime or for purposes of exceptional situations. People v. Frawley (2000, Cal App 1st Dist) 82 Cal App 4th 784, 98 Cal Rptr 2d 555, 2000 Cal App LEXIS 608. Further, Labor Code § 432.7 does not allow an employer to inquire in an expunged offense.

If you are charged with a drug or theft offense contact Beverly Hills attorney William Kroger can evaluate the police report, discuss options, and provide a fair assessment without charge. With decades of experience, an honest opinion with an experiences attorney is critical.

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