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Proposition 47 Issues page

ARTICLES SAMPLES SUPERIOR COURT FORMS PROP. 47 CASES PROP. 47 ISSUES

This area of our site offers a checklist for counsel to use to see if a current case presents possible Proposition 47 issues. Counsel is encouraged to review the following list before he or she files a Wende brief in a case that may involve Proposition 47.

Please note that this list is not exhaustive. For additional ideas for possible Proposition 47 issues, see the Proposition 47 analysis by retired Judge Richard Couzens and Presiding Justice Tricia Bigelow (external link to PDF). Counsel is also encouraged to review recent Proposition 47 cases under the "Prop. 47 Cases" tab above.

Proposition 47 Case Checklist

DISCLAIMER FOR APPOINTED COUNSEL IN THE THIRD AND FIFTH DISTRICT COURTS OF APPEAL REGARDING PURSUING PROPOSITION 47 RELIEF IN THE TRIAL COURT: The Third District Court of Appeal has held that the trial court does not have jurisdiction to resentence a defendant under Proposition 47 while an appeal from that sentence is pending. (People v. Scarbrough (2015) __ Cal.App.4th __ (C075414). (However, prior to this decision, people with pending appeals had been resentenced under Proposition 47 while their appeals were pending.) In light of this decision, counsel for appellants who have a pending appeal and who are eligible for resentencing under Proposition 47 in the case that is the subject of the appeal, must consider the best avenue for obtaining relief. There are a number of options, some of which are outlined below. Panel attorneys are encouraged to consult their CCAP buddy to determine which option is most appropriate for a particular case.

OPTION 1: "[O]ne potential solution that may be available to an eligible defendant during the pendency of an appeal would be to request from the appellate court a stay of execution of the sentence on the counts subject to resentencing. Admittedly, this remedy may pose its own complications in that eligible persons may still be subject to punishment for the misdemeanor and a year of parole on their release under the resentencing provisions. ([Pen. Code,] § 1170.18, subd. (d).) Thus, a stay of execution on a defendant's felony sentence could cause him or her to be released while the appeal is pending, and then require him or her to be incarcerated or placed on parole once the resentencing has occurred. Thus, though such an effort would mitigate the severity of the consequences produced by this rule [that the trial court lacks jurisdiction to resentence a defendant under Proposition 47 while the appeal is pending], it would not resolve all issues." (People v. Scarbrough (2015) __ Cal.App.4th __ fn. 4 (C075414)

OPTION 2: Request that the Court of Appeal stay the appeal and grant a limited remand to the trial court to hold a Penal Code section 1170.18 resentencing hearing. (See People v. Awad (2015) 238 Cal.App.4th 215. But see People v. Diaz (2015) 238 Cal.App.4th 1323, 1337 fn. 6 [rejecting the approach outlined in Awad].)

OPTION 3: Consider whether to advise the client to abandon the appeal so that he or she can file a Proposition 47 petition in the trial court. Appointed counsel is required to consult his or her CCAP buddy for the case before advising the client to abandon the appeal.

REMEMBER TO REQUEST AN EXPANSION OF YOUR APPOINTMENT BEFORE PROVIDING ASSISTANCE WITH FILINGS IN THE TRIAL COURT. If counsel appointed in a Third or Fifth District case believes that a pending appeal presents a Proposition 47 issue that should be pursued in the trial court using one of the options outlined above, counsel should first contact the trial attorney or the local public defender to see if he or she will file the petition/application for Proposition 47 relief. If trial counsel and the public defender decline to file the petition/application, and appellate counsel wishes to prepare the petition/application for the client, counsel will first need to move to expand his or her appointment to receive compensation for petition/application work such as this. For more information, see CCAP's article Expanding Your Appointment for Extraordinary Writ Work.

SAMPLES CAVEAT: Counsel should consider whether a given sample is the best or the only approach to take in any given case, and are encouraged to make further, hopefully even better, arguments. CCAP provides these samples simply as possible options to consider before deciding the best tactical approach for a given case/client. Counsel's strategy will necessarily differ depending upon the circumstances and juncture of each case. Finally, CCAP encourages counsel to review the articles and memos provided by the projects to understand the full scope of possible options and considerations.

1. Check to see if any of appellant's current offenses are directly impacted by Proposition 47.

You can start with the following resources:

Full text of Proposition 47 (PDF)

CCAP Panel Announcement Summarizing Proposition 47 (PDF)

PLEASE NOTE:

If one of appellant's current offenses is impacted by Proposition 47, counsel may consider raising an argument, based on In re Estrada (1965) 63 Cal.2d 740, that the electorate intended the amendments set forth in Proposition 47 to apply to all cases not yet final. However, counsel should be aware that the Courts of Appeal have held that appellants who may be eligible for relief under Proposition 47 must first file a petition in the trial court. (See People v. Delapena (2015) 238 Cal.App.4th 1414; People v. DeHoyos (2015) 238 Cal.App.4th 363; People v. Lopez (2015) 238 Cal.App.4th 177; People v. Contreras (2015) 237 Cal.App.4th 868; People v. Shabazz (2015) 237 Cal.App.4th 303; People v. Noyan (2014) 232 Cal.App.4th 657.)

Alternatively, one Court of Appeal has held that Penal Code section 1260, when read in conjunction with Proposition 47, authorizes the Court of Appeal to stay an appeal and grant a limited remand to the trial court to hold a Penal Code section 1170.18 resentencing hearing. (People v. Awad (2015) 238 Cal.App.4th 215. But see People v. Diaz (2015) 238 Cal.App.4th 1323, 1337 fn. 6 [rejecting the approach outlined in Awad].)

Counsel may also consider assisting appellant with filing a Proposition 47 petition in the trial court. However, before you provide any assistance, see the disclaimer above.

In cases where the appellant may be eligible for Proposition 47 relief and release from custody, counsel may also consider filing a motion for calendar preference and expedited review.

Motion for Calendar Preference and Expedited Review

PDFFile is in Adobe Acrobat Format

Word File is in Word Format

 

2. Check to see if any of appellant's current offenses are indirectly impacted by Proposition 47.

There are some offenses that may be impacted by Proposition 47 even though they were not specifically mentioned in the initiative. Some of these offenses are listed below.

  • Health and Safety Code sections 11352 and 11379 (transportation of various controlled substances)

    Effective January 1, 2014, Health and Safety Code sections 11352 and 11379 (which prohibit the transportation of various controlled substances) were amended to provide that the word "transports" in the statutes means to transport for sale. (Stats. 2013 ch. 504, § 2 (AB 721), effective January 1, 2014.) Now, if a defendant possessed one or more of the specified controlled substances, but the prosecution does not prove that the defendant transported the substances for sale, the defendant may only be found guilty of possession of the controlled substance. (See Health & Saf. Code, §§ 11350, 11377.)

    Proposition 47 amended sections 11350 and 11377 to provide that the offenses shall be punished as misdemeanors unless the defendant has one or more prior convictions for an offense specified in Penal Code section 667, subdivision (e)(2)(C)(iv) or an offense requiring registration under Penal Code section 290. Proposition 47 did not directly amend sections 11352 and 11379.

    The following sample brief presents that argument that the appellant, who had been convicted in 2009 of transporting various controlled substances under sections 11352 and 11379 and sentenced to prison, was entitled to resentencing under Proposition 47 based on equal protection principles. The briefing includes the argument that the 2014 amendment to sections 11352 and 11379 should apply to all convictions (both final and non-final) for transportation where there was no evidence that the transportation was for the purpose of sale.

    Sample briefing on Proposition 47's Impact on Health and Safety Code sections 11352 and 11379 (PDF)File is in Adobe Acrobat Format

    Sample brief provided curtesy of panel attorney Jonathan Berger.

  • Vehicle Code section 10851 (unlawful driving or taking of vehicle without consent)

    Vehicle Code section 10851 prohibits a person from driving or taking a vehicle not his or her own, without the consent of the owner, and with intent either to permanently or temporarily deprive the owner of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle. It also provides for punishment of any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing.

    Section 10851 was not directly amended by Proposition 47. However, Proposition 47 added Penal Code section 490.2, which provides that "[n]otwithstanding 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 does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor," unless the defendant has one or more prior convictions for an offense specified in Penal Code section 667, subdivision (e)(2)(C)(iv) or an offense requiring registration under Penal Code section 290. Penal Code section 487, subdivision (d) provides that grand theft is committed when an automobile is taken.

    Based on section 490.2 and section 487, there is argument that felony convictions under section 10851 should be reduced to misdemeanors where the value of the stolen vehicle is less than $950. The following sample brief presents this argument.

    Sample briefing on Proposition 47's Impact on Vehicle Code section 10851 (PDF)File is in Adobe Acrobat Format

    Sample brief provided curtesy of panel attorney Theresa Stevenson.

    Please note that one Court of Appeal has held that the defendant has the burden of proving the property was valued less than $950. (People v. Sherow (2015) 239 Cal.App.4th 875.)

  • Penal Code section 496d (buying or receiving stolen vehicle or equipment)

    Penal Code section 496d is a wobbler offense that prohibits any person from buying or receiving any motor vehicle, any trailer, any special construction equipment, or any vessel that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained. It also prohibits a person from concealing, selling, withholding, or aiding in concealing, selling, or withholding any motor vehicle, trailer, special construction equipment, or vessel from the owner, knowing the property to be so stolen or obtained.

    Section 496d was not directly amended by Proposition 47. However, Proposition 47 amended Penal Code section 496 to provide that the offense of buying or receiving stolen property is now a misdemeanor if (1) the value of the property does not exceed $950 and (2) the defendant has no prior convictions for an offense specified in Penal Code section 667, subdivision (e)(2)(C)(iv) or an offense requiring registration under Penal Code section 290. There is an argument based on the amended version of section 496 that felony violations of section 496d should be punished as misdemeanors where the value of the stolen item is less than $950.

    Please note that one Court of Appeal has held that the defendant has the burden of proving the property was valued less than $950. (People v. Sherow (2015) 239 Cal.App.4th 875.)

  • Penal Code section 1320, subdivision (b) (willful failure to appear on a felony charge)

    Penal Code section 1320, subdivision (a) provides that a "person who is charged with or convicted of the commission of a felony who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony . . . ." If a person charged with or convicted of a misdemeanor fails to appear, the person is guilty of a misdemeanor. (Pen. Code, § 1320, subd. (a).)

    Proposition 47 did not directly amend section 1320. However, there is an argument that a defendant convicted of failing to appear in court for a felony offense that was subsequently reduced to a misdemeanor by Proposition 47, should have his or her felony failure to appear conviction reduced to a misdemeanor.

    Please note that the Third DCA has not agreed with this argument. (See People v. Perez (2015) 239 Cal.App.4th 24; People v. Eandi (2015) 239 Cal.App.4th 801.)

 

3. Check to see if any of appellant's prior offenses that were used to enhance his or her sentence are directly or indirectly impacted by Proposition 47.

If one or more of appellant's prior offenses that were used to enhance his or her sentence are directly impacted by Proposition 47, you may consider assisting appellant with filing a Proposition 47 petition/application in the trial court to have his or her prior felony convictions reduced to or designated as misdemeanors. However, before you provide any assistance, see the disclaimer above. If there is no appeal pending for the prior conviction and the conviction is final, the trial court should have jurisdiction to decide the Proposition 47 petition/application.

You may also consider presenting the argument that the Court of Appeal should reduce the prior felony convictions to misdemeanors based on Proposition 47 on direct appeal, and/or strike the enhancement. The following sample brief presents this argument.

Sample briefing on Proposition 47's Impact on Prior Prison Term Enhancements (PDF)File is in Adobe Acrobat Format

Sample brief provided curtesy of attorney Sarvenaz Bahar.

However, please note that the Court of Appeal rejected this approach in this case. (See People v. Diaz (2015) 238 Cal.App.4th 1323.)

Other Courts of Appeal have also rejected this argument, and the California Supreme Court has granted review of this issue. (See People v. Valenzuela (2015) 244 Cal.App.4th 692, review granted 3/30/2016 (S232900/D066907) [lead case]; People v. Carrea (2016) 244 Cal.App.4th 966, review granted 4/27/2016 (S233011/D068246); People v. Ruff (2016) 244 Cal.App.4th 935, review granted 5/11/2016 (S233201/F068131); People v. Williams (2016) 245 Cal.App.4th 458, review granted 5/11/2016 (S233539/B264110).)

Despite this line of cases, there may be a basis for striking a sentence enhancement under Penal Code section 667.5 when the prior conviction that forms the basis for the enhancement was reduced to a misdemeanor before the defendant committed and was convicted of the later offense. (See People v. Valenzuela, supra, 244 Cal.App.4th 692, 709-710 review granted 3/30/2016 (S232900/D066907); People v. Ruff, supra, 244 Cal.App.4th 935, 942-943, review granted 5/11/2016 (S233201/F068131).)

 

4. In an appeal from the denial of a Proposition 47 petition, check to see if the trial court made adequate factual findings when it denied the petition.

The following sample brief presents the argument that the trial court's order denying the appellant's Proposition 47 petition should be reversed, and that the case should be remanded, because the trial court did not conduct an adequate hearing and failed to make adequate factual findings based on admissible evidence.

Sample briefing on trial court's failure to conduct adequate Proposition 47 hearing (PDF)File is in Adobe Acrobat Format

Sample brief provided curtesy of panel attorney Timothy Warriner.

The Attorney General conceded that the trial court's failure to make an adequate record to support its denial of appellant's Proposition 47 petition warranted a remand for further proceedings.

Please note that one Court of Appeal has held that the defendant has the burden of proving the property was valued less than $950. (People v. Sherow (2015) 239 Cal.App.4th 875.)

 

5. In an appeal from the denial of a Proposition 47 petition, check to see if the trial court denied the petition based on prior juvenile adjudications.

Many of the statutes enacted/amended by Proposition 47 state that an offense may not be reduced to a misdemeanor if the defendant has one or more prior convictions for an offense specified in Penal Code section 667, subdivision (e)(2)(C)(iv) or an offense requiring registration under Penal Code section 290.

If the trial court denied an appellant's petition for resentencing under Proposition 47 based on a juvenile adjudication, there is an argument that this was improper because juvenile adjudications are not "convictions." (See Welf. & Inst. Code § 203 ["An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding."]; People v. West (1984) 154 Cal.App.3d 100, 106-110 [holding prior juvenile adjudications are not prior "convictions" within the meaning of Penal Code section 667, subdivision (a)]; In re Anthony R. (1984) 154 Cal.App.3d 772 [holding that because a juvenile petty theft adjudication is not a conviction, a minor's second adjudication in juvenile court for petty theft cannot be a violation of Penal Code section 666]; People v. Lopes (2015) 238 Cal.App.4th 983.) The Legislature and electorate both know how to include juvenile adjudications because they both expressly did so in enacting the Three Strikes Law in 1994. (See Pen. Code, §§ 667, subd. (d)(3), 1170.12, subd. (b)(3).) Here, voters limited Proposition 47's disqualifying language to prior "convictions" for offenses specified in Penal Code section 667, subdivision (e)(2)(C)(iv) or offenses requiring sex-offender registration; Proposition 47 does not refer to prior juvenile adjudications. However, retired Judge Richard Couzens and Presiding Justice Tricia Bigelow express a different perspective in their Proposition 47 analysis (see page 18) (external link to PDF).

 

6. In an appeal where the trial court granted a Proposition 47 petition, check to see if the trial court increased appellant's sentence for any conviction that was not subject to Proposition 47 resentencing.

Penal Code section 1170.18, subdivision (e) provides that "[u]nder no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence." If the trial court reduced one of appellant’s convictions to a misdemeanor pursuant to Proposition 47, but increased the sentence for another conviction when resentencing appellant, there is an argument that this was improper under section 1170.18, subdivision (e).

 

 

 

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