Theft/Shoplifting
Category > Theft/Shoplifting
There was insufficient evidence to support the burglary and grand theft convictions where the prosecution failed to present evidence of the fair market value of the stolen items. The jury’s findings that defendant stole more than $950 worth of merchandise - a finding used to support both his grand theft and burglary convictions - was not supported by substantial evidence because the prosecution relied on the “comparable value” the store displayed on the tag attached to each stolen item without introducing any evidence to establish that the comparable values reflect the stolen merchandise’s actual fair market value.id: 27099
After granting the Prop 47 petition as to one count, the court was required to conduct a plenary resentencing hearing on the remaining felony count to determine the validity of the prior prison term. The trial court granted defendant’s Prop 47 petition to reduce his felony theft to a misdemeanor, but declined to resentence on the robbery conviction, leaving all of the Penal Code section 667.5, subd. (b) prior prison term enhancements in place. However, defendant was entitled to a plenary resentencing hearing on all counts and enhancements, and the trial court was required to determine the validity of the section 667.5, subd.(b) enhancements as of the time of resentencing.id: 25994
Stealing cigarettes and money from a wallet qualified as shoplifting for purposes of Prop 47. Defendant entered a business where motor homes are sold, where he stole cigarettes and $240 from a wallet he found on the premises. His conduct fit within the definition of shoplifting under Penal Code section 459.5, and so his commercial burglary conviction was properly reduced to a misdemeanor under Prop 47.id: 25029
Using explosives to blow open an ATM machine in the middle of the night qualified as shoplifting under Prop 47.The trial court erred in denying defendant’s Prop 47 petition for resentencing because his second degree burglary conviction for using explosives to blow open an ATM machine in the middle of the night qualified as shoplifting, which is defined as “entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours.”id: 25852
Defendant’s felony conviction under section 10851 was reversed due to the lack of evidence of the value of the vehicle. Defendant was convicted of unlawfully taking or driving a vehicle under Vehicle Code section 10851, subd.(a). However, a defendant cannot be convicted of a felony violation of section 10851, subd. (a) based on the theft of a vehicle unless the vehicle is worth more than $950. Since the jury was not so instructed, it could have relied on a legally invalid theory to convict the defendant. Although there was strong evidence that defendant drove a vehicle, it could not be found beyond a reasonable doubt that the jury unanimously relied on that theory. The conviction was reversed and the prosecution can retry the case as a felony or accept the reduction to a misdemeanor.id: 25835
Defendant was eligible for Prop 47 resentencing where his prior identity theft and forgery convictions (that occurred in a consolidated proceeding) were unrelated.Defendant plead guilty in a single proceeding to forgery based on a 2003 incident, and identity theft stemming from his jailhouse efforts in 2005 to open fraudulent phone accounts. Because the incidents were unrelated, the identity theft conviction did not preclude defendant from Prop 47 resentencing.id: 25845
The trial court erred by finding it lacked discretion to consider an amended Prop 47 petition.Defendant petitioned under Prop 47 to redesignate a 1980 felony grand theft conviction as a misdemeanor. The court denied the petition for failure to establish the value of the stolen property exceeded $950. The court then denied a second petition for lack of authority to refile a petition. However, Penal Code section 1170.18 confers discretion on a court to permit a refiling. Because the court was unaware that it had such discretion, the matter was reversed and remanded for reconsideration. id: 25798
Prop 47's mandate that the redesignated offense be considered a misdemeanor for all purposes permits defendants to challenge felony-based section 667.5 and 12022.1 enhancements when the underlying offenses have been resentenced as misdemeanors.Prop 47 requires the dismissal of a two-year sentencing enhancement for committing a felony offense while released on bail for an earlier felony offense (Penal Code section 12022.1, subd. (b)) when that earlier felony offense is reduced to a misdemeanor under section 1170.18. Similarly, Prop 47 requires the dismissal of a one-year enhancement for having served a prior prison term (section 667.5, subd.(b)) when the felony underlying that prior prison term has been reduced to a misdemeanor. Under some circumstances, the challenge may be brought in a resentencing procedure under section 1170.18. They may also be brought in a habeas corpus petition where the judgments were not final at the time Prop 47 became effective.id: 25808
Defendant’s conduct in committing felony identify theft met the elements of shoplifting under Prop 47, and her conviction was reduced to a misdemeanor.Defendant entered a department store and removed the price tags from two items worth slightly over $100. She told the clerk she had purchased the items and was returning them for a refund. She used a stolen credit card to falsely identify herself. She later pled guilty to felony identity theft. Her conduct in admitting the identity theft met the elements of shoplifting under Prop 47, so her conviction was reduced to a misdemeanor. id: 25810
Following Page, defendant was entitled to file a new Prop 47 petition seeking resentencing for his unlawful driving conviction. Defendant was convicted of one count of unlawfully driving a vehicle under Vehicle Code section 10851. He moved for resentencing under Prop 47. In People v. Page (2017) 3 Cal.5th 11751, the court found certain violations of section 10851 may be eligible for Prop 47 relief. Defendant was entitled to file a new petition alleging and providing facts necessary to determine eligibility for resentencing.id: 25713
The reclassification of certain prior felony offenses may trigger the “washout” rule of section 667.5, subd.(b) such that a court cannot impose one year enhancements based on felony convictions that have not been reclassified as misdemeanors.Defendant pled guilty to a weapons offense and was sentenced to a seven year term that included four one-year enhancements under Penal Code section 667.5, subd.(b). Each enhancement was based on a prior felony conviction and its associated prison term. However, one of the enhancements was imposed erroneously because the prior offense on which it was based had been reclassified as a misdemeanor under Prop 47. Moreover, the other three enhancements were also reversed due to the application of the washout provision of section 667.5, subd.(b), because still other prior felonies were reduced to misdemeanors under Prop 47, with the result that there was a period exceeding five years following the unreclassified felonies during which defendant was free of felony convictions.id: 25752
Section 10851 conviction was reduced to a misdemeanor under Prop 47 although the prosecution could retry the offense as a felony with appropriate instructions.Defendant was tried for the unauthorized taking or driving a vehicle under Vehicle Code section 10851 in a trial that took place after the effective date of Prop 47. In People v. Page (2017) 3 Cal.5th 1175, the court found unlawfully taking a vehicle valued at less than $950 is eligible for Prop 47 treatment but unlawful driving is not. The conviction was reduced to a misdemeanor although the prosecution had the option of retrying the case as a felony with appropriate instructions, including the requirement that it prove the car was valued at more than $950.id: 25767
Burglary with intent to commit identity theft meets the statutory definition of Prop 47 if the defendant shows the value of the stolen property did not exceed $950.Burglary with the intent to commit identity theft may meet the statutory definition of shoplifting under Prop 47. Contrary to the prosecution’s argument, the defendant did not have to show he did not intend to steal property worth more than $950, or that he did not intend to commit a nontheft felony. He only had to show the value of the stolen property did not exceed $950, and defendant made that showing.id: 25672
Defendant was denied his right to be present at a contested hearing to determine his eligibility for Prop 47 relief.Through his appointed counsel, defendant consented to a limited waiver of his right to be present for an uncontested Prop 47 proceeding if the court was willing to grant the requested relief. The court later conducted a contested hearing on eligibility where defendant’s presence may have made a difference. Absent an appropriate waiver, the hearing conducted in his absence violated his Sixth Amendment right to be present at certain proceedings.id: 25673
Prop 47 does not require court to draw a distinction under Vehicle Code section 10851 between permanent and temporary vehicle takings.Prop 47 doesn’t require courts to draw a distinction under section 10851 between permanent and temporary vehicle takings - granting sentencing relief to those who take vehicles permanently but denying relief to those who take vehicles temporarily. A person who has unlawfully taken a vehicle in violation of section 10851 is not disqualified from Prop 47 relief because the person cannot prove he or she intended to keep the vehicle away from the owner indefinitely.id: 26708
The trial court erred by finding felony embezzlement under Penal Code section 503 was not subject to Prop 47 relief. The trial court erred by denying defendant’s petition to redesignate his felony embezzlement conviction to a misdemeanor under Penal Code section 1170.18.id: 25384
Evidence was insufficient to support the burglary conviction following Prop 47, where defendant entered a hobby store looking to trade two expensive stolen drones for a toy truck.Prop 47 changed the definition of burglary to exclude from that offense the entry of a commercial establishment with the intent to commit larceny of property worth $950 or less while the establishment is open during regular business hours. Evidence did not support the burglary conviction here given the lack of evidence that defendant intended to take property from a hobby store that was worth more than $950. Defendant entered the store looking to trade two stolen drones for an electric toy truck but no value for the truck was established, and it didn’t matter that the drones were worth a lot of money. Reversal was also required where the court failed to instruct on the prosecution’s burden of proving the stolen goods were worth more than $950.id: 26531
The trial court failed to note whether it found defendant ineligible for Prop 47 relief because of an ambiguity in the identity theft provision. The identity theft provision, Penal Code section 473(b) includes the caveat that misdemeanor status does not apply to its list of forged instruments where a person is convicted of both forgery and identity theft as defined in section 530.5. Defendant correctly argued the language was ambiguous as to whether the forgery and identity theft must arise out of the same transaction. The trial court found defendant was ineligible for Prop 47 relief without explanation, and this was the only potential applicable ground for the ruling. The matter was remanded for further proceedings to determine defendant’s eligibility for relief. id: 25030
The trial court erred by refusing to reduce the forgery conviction under Prop 47 where the counterfeit bills had a face value of $260, even though defendant had equipment that could have been used to print more.The trial court erred by refusing to reduce defendant’s forgery conviction to a misdemeanor under Prop 47 on the theory that while the counterfeit bills she possessed had a face value of only $260, the other counterfeiting materials she possessed could have been used to make thousands of dollars of counterfeit bills. Only counterfeit bills with a discernable face value are relevant to the valuation process. The prosecution was not entitled to withdraw from the plea agreement that led to the forgery conviction.id: 24946
Defendant has the right to be present at the Prop 47 resentencing. Defendant has the right to be present for his Prop 47 resentencing hearing because the court had discretion to consider the entire sentence at that proceeding. However, the error was harmless as defendant presented no evidence of his rehabilitation and showed no authority that rehabilitation was relevant. Moreover, there was no evidence showing the court mistakenly believed it had to reimpose the original term.id: 24964
The prosecution was not entitled to have the plea bargain set aside for a defendant who seeks Prop 47 relief.Defendant petitioned to have his sentence recalled and to have his grand theft offense reduced to a misdemeanor under Prop 47. The prosecution was not entitled to have the original plea agreement set aside after the trial court granted Prop 47 relief.id: 24966
That gang enhancements attached to the felonies did not disqualify defendant from Prop 47 relief. Defendant was convicted of 10 felonies arising out of a bank robbery. He filed a petition to redesignate two of the offenses to misdemeanors under Prop 47. The trial court erred by ruling defendant was ineligible for Prop 47 relief because the felonies in question were accompanied by gang enhancements. However, defendant failed to carry his burden of showing the two felonies involved property worth $950 or less.id: 24933
Entry into the restroom of a business to steal an air compressor constituted shoplifting for Prop 47 purposes.The entry during business hours into a commercial establishment’s employee restroom to commit larceny (removing an air compressor) qualified as “shoplifting” under Penal Code section 459.5 as enacted by the voters in Prop 47.id: 24915
The country club from which defendant stole a TV and golf balls was a “commercial establishment” for purposes of the new misdemeanor shoplifting provision.The trial court erred in denying defendant’s Prop 47 request to reduce his burglary to misdemeanor shoplifting under Penal Code section 459.5. Contrary to the court’s finding, the private country club from which defendant stole a flat screen TV and golf balls was a commercial establishment for purposes of the new provision.id: 24895
Defendant was eligible for Prop 47 resentencing for his burglary conviction where he entered a grocery store with the intent to commit theft by false pretenses.A felony conviction for second degree commercial burglary is reducible to misdemeanor shoplifting if the defendant entered the commercial establishment with the intent to commit theft by false pretenses.id: 24868
The trial court erred by aggregating the value of the forged checks to find defendant was ineligible for Prop 47 relief. Defendant pled guilty to forgery. The trial court later erred by denying his Prop 47 petition for resentencing concluding the aggregate value of the checks defendant had forged made him ineligible for Prop 47 relief. However, the forgery provision (Penal Code section 473, subd.(b)) doesn’t permit aggregation, and the court erred by aggregating the individual checks to reach $950.id: 24820
Receipt of a stolen vehicle worth less than $950 qualifies for misdemeanor treatment under Prop 47.After the passage of Prop 47, receipt of a stolen vehicle is eligible for misdemeanor treatment under Penal Code section 496, assuming that the vehicle is worth $950 or less.id: 26444
Defendant was entitled to have his 1995 burglary redesignated as a misdemeanor under Prop 47 even though the incident included a robbery that was dismissed as part of the plea bargain.In 1995, defendant was charged with robbery and burglary for entering a convenience store and stealing beer. He pled guilty to the burglary and the robbery charge was dismissed. He later filed a Prop 47 petition seeking to have the burglary reduced to misdemeanor shoplifting. The trial court erred in denying the petition based on the robbery that had been dismissed.id: 26335
Reduction of felony theft conviction to a misdemeanor under Prop 47 also required a dismissal of the street terrorism offense that is based on “felonious” criminal conduct.Defendant stole a bicycle and was later convicted of both felony grand theft and street terrorism under Penal Code section 186.22, subd.(a). The felony theft conviction was later reduced to a misdemeanor under Prop 47. That reduction also required dismissal of the street terrorism offense, which requires a showing of “felonious” criminal conduct. id: 26224
Identity theft qualifies for Prop 47 treatment if the value of the identifying information does not exceed $950.Under Prop 47, identity theft under Penal Code section 530.5, must be treated as a misdemeanor if the value of the personal identifying information at issue does not exceed $950, either as shoplifting under section 459.5 or as petty theft under 490.2.id: 26113
The prosecution improperly aggregated the value of property stolen from two different stores in order to charge defendant with felony receiving.Defendant was charged with, and convicted of a single felony violation of receiving stolen property as he possessed clothing stolen from two stores. Contrary to his claim, he did not commit shoplifting under Penal Code section 459.5, and so the prosecution could charge receiving stolen property under section 496, subd.(a). However, because he took possession of that property in two discrete transactions, the prosecution was not entitled to aggregate the value of the property (to exceed $950) in order to charge a felony.id: 26085
Defendants convictions for crimes related to their work at an anti-poverty agency were preempted by federal law.Defendants worked at an anti-poverty agency and were convicted of theft by false pretenses and false accounting of public monies. They were convicted based on the representations to the U.S. Department of Health and Human Services that the agency had matching nonfederal funds in a reserve account set up for certain grants in the Assets for Independence (AFI) grant program. However, there is a federal statutory and regulatory scheme governing the AFI program, and the defendants convictions were preempted by federal law and reversed. id: 25605
After obtaining a reduction of a felony to a misdemeanor under Prop 47, the court had the authority to apply defendant’s excess custody credits to reduce the duration of his PRCS.Defendant serving a prison sentence for multiple felony convictions obtained Prop 47 relief reducing one of his convictions to a misdemeanor. Following resentencing, his custody credits exceeded the newly imposed term. The trial court had the authority to apply the credits to reduce the duration of postrelease community supervision.id: 25514
Failure to prove the stolen car was worth more than $950 rendered the theft a misdemeanor, and a remand for additional proof would violate double jeopardy.The minor was found to have committed theft of a vehicle under Vehicle Code section 10851. However, the prosecution presented no proof of the value of the stolen vehicle, so it could not be considered a felony theft, which requires proof that the car’s value exceeded $950. A remand for additional evidence would violate double jeopardy principles.id: 25492
A person convicted of vehicle theft under section 10851 before the passage of Prop 47 can be resentenced if he or she can show the vehicle was worth $950 or less. The trial court erred in finding that a defendant with a Vehicle Code section 10851 conviction is categorically ineligible for resentencing under Prop 47. Penal Code section 1170.18 does not refer to section 10851 but it does permit resentencing to a misdemeanor under Penal Code section 490.2 for theft of property worth $950 or less. Section 10851 can be violated in different ways including theft of a vehicle.id: 25440
Defendant’s prior juvenile adjudication did not disqualify him from misdemeanor sentencing under Prop 47 following his drug possession conviction.Defendant’s prior juvenile adjudication for sexual battery in violation of Penal Code section 243.4 was not a prior conviction as used in Health and Safety Code section 11377, and did not disqualify him from misdemeanor sentencing under Prop 47 for his current drug possession offenses.id: 25250
The trial court erred by finding defendant was ineligible for Prop 47 relief because of a robbery prior that resulted in a life term under the three strikes law.The trial court found defendant was ineligible for Prop 47 relief because he had a prior robbery conviction that resulted in a life term under the three strikes law. However, the court erred by finding defendant was ineligible for relief because robbery itself is not a serious and/or violent offense punishable by a life term.id: 25188
Where the prior convictions were reduced to misdemeanors under Prop 47 before sentencing on the current case, the prior prison term enhancements could not be imposed.Even though defendant’s prior convictions were felonies when she committed the new offenses, and even though the Penal Code section 667.5, subd.(b) prior prison term allegations were adjudicated prior to the convictions being reduced to misdemeanors, the reductions occurred before her current sentencing. Since, at the time of the sentencing, the priors were no longer felonies, the prior prison term enhancements could not be imposed.id: 25160
Defendant was eligible for Prop 47 resentencing as his act of breaking into a coin-operated soap dispenser at a laundromat constituted shoplifting under the new statute. Defendant broke into a coin-operated soap dispenser in a commercial laundromat, and was convicted of second degree burglary. He was eligible for resentencing under Penal Code section 1170.18, subd.(a) because his offense constituted shoplifting as defined in section 459.5. However, he was not entitled to an order directing that he be resentenced. The matter was remanded for a determination on his dangerousness.id: 25170
Entering a bank intending to cash a stolen check for less than $950 constitutes shoplifting under Prop 47.Defendant’s act of entering a bank to cash a stolen check for less than $950, traditionally regarded as theft by false pretenses rather than larceny, now constitutes shoplifting under Penal Code section 459.5. Defendant may properly petition for misdemeanor resentencing under section 1170.18.id: 25171
Prop 47 applies to section 10851 cases that are based on theft of a vehicle worth $950 or less but not based on driving. Prop 47 applies to Vehicle Code section 10851 theft convictions when the value of the vehicle is $950 or less, but not convictions based on driving, no matter the value.id: 25173
Theft of access card account information is a crime eligible for reduced punishment under Prop 47.Theft of access card account information - debit and credit card information - is a crime that is eligible for reduced punishment under Prop 47. Penal Code section 490.2's value threshold of $950 must be applied using a reasonable and fair market value test.id: 25175
That the defendant served a prison term for a prior felony later designated as a misdemeanor under Prop 47 did not disqualify her for relief under section 1203.4a. A defendant whose prior felony conviction has been designated as a misdemeanor pursuant to Prop 47 can obtain relief under Penal Code section 1203.4a despite having served a prison sentence for the prior conviction.id: 25132
The trial court did not err in finding the blank stolen checks defendant possessed were worth less than $950 for Prop 47 purposes.Defendant pled guilty in 2012 to receiving stolen property based on her possession of blank checks she knew had been stolen. She later moved to have the offense redesignated as a misdemeanor under Prop 47 on the ground that the checks were worth less than $950. The prosecution claimed the value of the stolen checks exceeded $950 because the account linked to the checks contained $3,000. The trial court did not err by granting the petition after finding the checks had a de minimus value.id: 25140
The term “value” in misdemeanor check forgery provision, refers to the actual monetary worth of the check, not the amount for which it was written. Penal Code section 433, subd.(b) makes check forgery a misdemeanor if the value of the check does not exceed $950. The term “value” refers to the actual monetary worth of the check, not the amount for which it was written. While the written value of a forged check may be evidence of its monetary worth, a defendant may be able to show an uncashed check was worth less than its written value - e.g. by presenting evidence that the check was unlikely to be cashed. id: 25110
After reclassifying defendant’s prior drug conviction as a misdemeanor under Prop 47, the court erred by imposing a parole period that exceeded the time remaining on defendant’s PRCS period. In 2011, defendant pled guilty to felony possession of methamphetamine. In December of 2014, the trial court granted his Prop 47 petition (under Penal Code section 1170.18, subd. (a)) to reduce the offense to a misdemeanor. The trial court further imposed a one year parole period as part of the sentence. However, the parole period exceeded the remainder of defendant’s post-release community supervision (PRCS) period, and that made the sentence erroneous under section 1170.18, subd. (e). The matter was remanded to recalculate defendant’s parole period.id: 24204
Defendants resentenced under Prop 47 can use excess custody credits to reduce applicable punitive fines.In People v. Morales (2016) 63 Cal.4th 399, the court held that Penal Code section 1170.18, subd.(d) does not allow excess custody credits to reduce the one-year parole period. However, people who are resentenced under Prop 47 can use excess custody credits to reduce punitive fines.id: 25027
Defendant’s failure to attach evidence to his Prop 47 petition did not prevent the court from granting it.The prosecution argued the trial court erred by granting defendant’s Prop 47 petition to redesignate a prior felony conviction as a misdemeanor because the defendant failed to attach any evidence to the petition. However, the court had discretion to consider evidence contained in court records and to set an evidentiary hearing to develop the necessary facts.id: 24906
The trial court properly granted Prop 47 relief for the prior burglary even though the defendant entered the store with another person. The trial court granted defendant’s Prop 47 petition to redesignate a prior burglary as misdemeanor shoplifting. The prosecution argued that defendant did not enter the store with the "sole" intent to commit theft because she was with another person and so there was a separate intent to commit a conspiracy, and so she was not eligible for Prop 47 relief. However, because she entered the store with the intent to commit larceny, the prosecutors would have been required to charge the new shoplifting provision, and she was therefore eligible for Prop 47 reclassification.id: 24907
Shoplifting, for purposes of Prop 47, requires proof that defendant intended to commit larceny at the time he or she enters the commercial establishment. The new shoplifting offense described in Penal Code section 459.5, as part of Prop 47, requires proof that the defendant entered the building with the intent to commit theft.id: 24806
Possession or receipt of counterfeit currency is a misdemeanor under Prop 47. The trial court erred by denying defendant’s Prop 47 petition because the crime for which he sought resentencing - possession or receipt of counterfeit currency under Penal Code section 475, subd.(a) - is a misdemeanor under Prop 47.id: 24808
The trial court erred by finding defendant who was convicted of forgery based on his possession of counterfeit currency did not qualify for Prop 47 relief.Defendant pled guilty to forgery in violation of Penal Code section 475 after he was found to possess three counterfeit $50 bills. He moved to recall his sentence and have the conviction reduced to a misdemeanor under Prop 47. The trial court erred by denying the petition after finding the bills he possessed were not “bank bills” or “notes” under section 473. Possession of counterfeit currency is a crime under section 475 precisely because such currency does qualify as a “bank bill” or “note.”id: 24753
Defendant qualified for Prop 47 relief as his conduct in entering a convenience store with a stolen credit card and trying to buy gift cards constituted shoplifting.Entering a commercial establishment with the intent to use a stolen credit card to purchase property valued at no more than $950 constitutes shoplifting under the new Penal Code section 459.5. The trial court erred by denying defendant’s Prop 47 petition finding the offense did not constitute shoplifting.id: 24754
The trial court erred by denying Prop 47 relief when the conviction upon which the sentence was based arose out of a negotiated plea.A defendant whose conviction is based upon a negotiated plea who is otherwise eligible for Prop 47 resentencing may not be denied relief on the ground that reclassification of his or her conviction to a misdemeanor would reduce the bargained-for punishment of the plea. Where a defendant files a Prop 47 petition in these circumstances, the trial court should neither condition a grant of the petition on the defendant’s withdrawal from the plea agreement nor grant the prosecution’s request to withdraw the plea agreement.id: 24762
The Check Exchange was a commercial establishment for Prop 47 purposes. Defendant tried to pass counterfeit bills at the Check Exchange. The trial court erroneously found he was ineligible for Prop 47 relief on the grounds that the Check Exchange was not a commercial establishment under Penal Code section 459.5.id: 24710
A dismissal of felonies under section 1203.4 did not preclude relief under Prop 47. The trial court erred by finding defendant’s felonies were ineligible for designation as misdemeanors under Prop 47 because they had previously been dismissed pursuant to Penal Code section 1203.4.id: 24628
The trial court erred by denying Prop 47 relief for his receiving stolen property convictions without any determination that the stolen property was worth more than $950.The trial court erred by finding defendant was ineligible for Prop 47 relief for his convictions of receiving stolen property under Penal Code section 496, subd.(a). There was no factual hearing or determination that the property received, consisting of a single identification card as to each count, exceeded $950. ,id: 24597
The trial court erred by resentencing defendant without defense counsel present after granting the Prop 47 petition.The trial court granted defendant’s Prop 47 petition after finding his felony burglary conviction was reclassified as misdemeanor shoplifting. The court resentenced defendant on all counts to a five year prison term, but neither defendant nor defense counsel were present for the resentencing. Defendant was entitled to the assistance of counsel at the resentencing hearing, which is a “critical stage” of a prosecution, so the matter was remanded for another resentencing. id: 24570
Defendant was entitled to Prop 47 relief where his entry of a bank intending to commit theft by false pretenses in amounts less than $950 qualifies as shoplifting.Entry into a bank to commit theft by false pretenses (cashing forged checks in amounts less than $950) qualifies as “shoplifting” under newly enacted Penal Code section 459.5. Defendant was entitled to have his second degree burglary convictions reduced to misdemeanors under Prop 47.id: 24572
Defendant with a felony disposition who had received a grant of probation was entitled to Prop 47 relief.Prop 47 relief is available to all people with felony dispositions, including those on probation who otherwise meet the conditions specified in the statutory scheme.id: 24581
Defendant did not violate the terms of the plea bargain by moving for Prop 47 relief to reduce the grand theft to a misdemeanor and the petition did not allow the prosecution to restore the dismissed counts.Defendant entered into a plea bargain where she plead guilty to grand theft from a person, and the robbery and burglary charges were dismissed. The court sentenced her to formal probation. Thereafter, the voters passed Prop 47 and the trial court reduced defendant’s conviction to a misdemeanor. Contrary to the prosecutor’s claim, the fact that defendant was convicted under a negotiated plea agreement where other felony counts were dismissed, did not render her ineligible for Prop 47 resentencing. And defendant’s petition for resentencing did not amount to a breach of the plea agreement allowing the prosecution to restore the dismissed felony counts.id: 24529
Granting Prop 47 relief where the new law was approved after the plea bargain did not violate the agreement and the prosecution was not entitled to withdraw from it or reinstate the dismissal of charges. Defendant plead guilty to one count of receiving stolen property and other counts were dismissed. Shortly thereafter, defendant petitioned for resentencing and the court reduced the sentence. The prosecution argued that action violated the plea bargain. However, nothing in the plea agreement insulated the prosecution from changes in the law. The prosecution was not entitled to withdraw from the plea bargain or to reinstate the dismissed counts because Prop 47 had the limited effect of reducing defendant’s sentence - she remains convicted.id: 24534
The trial court did not deprive the prosecution of the benefit of a plea bargain by granting defendant’s Prop 47 petition.Defendant pled guilty to a grand theft offense, served three years of a six year sentence and then filed a petition for resentencing under Prop 47. The prosecution responded to the petition by seeking to vacate the plea agreement and reinstate the previously dismissed charges. However, by granting the defendant’s Prop 47 petition the court did not deprive the prosecution of the benefit of its bargain obtained through the plea agreement. id: 24542
When determining Prop 47 eligibility, the trial court is not limited to the record of conviction but may also consider factual stipulations that don’t contradict the record of conviction.In determining defendant’s eligibility for resentencing under Prop 47, the trial court may consider, in addition to the record of conviction, any facts the parties agree to as long as those facts only augment and don’t contradict the record of conviction. Considering the additional facts agreed to by the parties (that the amounts at issue were less than $950), defendant established eligibility for Prop 47 relief as to one of his second degree burglary convictions.id: 24517
Defendant committed “shoplifting” for Prop 47 purposes by entering a commercial establishment intending to cash a forged check.Defendant entered a check cashing establishment with the intent to use a forged check for $148, not to commit larceny. By entering the business with the intent to commit theft by false pretenses, defendant satisfied the “intent to commit larceny” element of the newly enacted Penal Code section 459.5. She was therefore eligible for resentencing under Prop 47 and the trial court erred in finding otherwise.id: 24483
Defendant convicted of auto theft may be eligible for Prop 47 relief if he can show the stolen car was worth less than $950.A defendant convicted of auto theft under Vehicle Code section 10851 may be eligible for Prop 47 resentencing if he or she can show the offense qualifies as a petty theft under Penal Code section 490.2. The defendant has the burden of showing the stolen vehicle was worth $950 or less.id: 24465
Unlawful taking of a vehicle can be reduced to a misdemeanor under Prop 47, but the defendant failed to show the vehicle was worth less than $950.Prior to the passage of Prop 47, defendant entered a guilty plea to a felony violation of Vehicle Code section 10851 for unlawful driving and taking a 2002 Chevy Suburban. He later filed a petition to recall his sentence arguing the conviction should be reduced to a misdemeanor petty theft under Penal Code section 490.2. The trial court erred by finding that no violations of section 10851 are entitled to resentencing under Prop 47. If a defendant takes a vehicle with a value under $950, he/she should be convicted of a misdemeanor. However, defendant had the burden of establishing the value of the car and failed to allege any facts showing the value was less than $950.id: 24444
Defendant’s oral request for Prop 47 relief satisfied the statutory requirement of a “petition.” Defendant pled guilty to six counts of commercial burglary and was sentenced to probation. After violating certain terms of probation, he made an oral motion in court to “reduce this to a misdemeanor” under Prop 47. The trial court erred in denying the motion to reduce his felony burglary charges to misdemeanor shoplifting in violation of new section 459.5. Contrary to the prosecution’s claim, it was not necessary that defendant’s petition be filed or that it be in writing. id: 24416
After granting Prop 47 relief, the trial court should have applied defendant’s excess custody credits to his restitution fine. The trial court granted defendant’s Prop 47 petition resentencing his petty theft with prior convictions felony to a misdemeanor. However, the trial court erred by failing to apply his excess custody credits to his $200 restitution fine, which would have completely satisfied the obligation to pay that fine.id: 24398
Prop 47 reduced theft of access card information to a misdemeanor if the stolen property was valued at less than $950.Prop 47 reduced the offense of theft of access card information under Penal Code section 484e, subd.(d) to a misdemeanor, provided the theft involved property valued at less than $950.id: 24400
The trial court erred by denying defendant’s petition for Prop 47 resentencing by finding the aggregate amount of the forged checks took her “outside the spirit” of Prop 47.Defendant moved to recall her sentence for seven felony forgery convictions under Prop 47. The trial court denied her petition reasoning the aggregate value of the forged checks took defendant “outside the spirit” of Prop 47. However, defendant satisfied the Prop 47 criteria for resentencing and the trial court erred by denying her request using the “total amount” approach.id: 24384
Prop 47 prohibited imposition of the on-bail enhancement in the second case after defendant’s drug conviction in the first case had been reduced to a misdemeanor. Defendant was convicted of a felony drug offense, and while out on bail on that offense committed two additional felonies. In sentencing on the second case the trial court imposed the two year out-on-bail enhancement under Penal Code section 12022.1, subd.(b). The felony in the first case was later reduced to a misdemeanor under Prop 47. There was also a resentencing in the second case. The court erred by reimposing the on-bail enhancement after the felony in the first case had been reduced to a misdemeanor because the court was required to evaluate the circumstances as they existed at the time of that sentencing, and by then the first felony had been reduced to a misdemeanor.id: 24356
The trial court erred by granting Prop 47 relief and then failing to credit defendant’s excess custody credits against his parole period.Defendant filed a Prop 47 petition seeking a reduction of his 2011 felony to a misdemeanor. He was still on PRCS at the time so he was given credit for time served on the jail sentence but he was subject to the one year parole requirement. The trial court erred by failing to credit his excess custody credits against his parole period and eligible fines.id: 24341
The offense reclassification provisions set forth in Prop 47 apply to juveniles. Welfare and Institutions Code section 602 provides for a minor to be declared a ward of the juvenile court when the minor commits a crime set forth in the Penal Code (or other codes defining criminal offenses). When a criminal offense is reclassified from a felony to a misdemeanor in the adult context as in Prop 47, the reclassification likewise applies in juvenile wardship proceedings. By adding section 1170.18 to the Penal Code, the Prop 47 voters made the felony-to-misdemeanor reclassification available to qualifying offenders on a retroactive basis. Thus, section 1170.18 concerns the very offenses that are incorporated into the juvenile wardship proceedings under section 602, and it follows that section 1170.18's offense reclassification provisions are equally applicable to juvenile offenders.id: 24207
Defendant’s DNA sample was removed from the state’s data bank after his offense was reclassified as a misdemeanor under Prop 47.Defendant’s offense was reclassified as a misdemeanor under Prop 47. The reclassified misdemeanor offense does not support the retention of defendant’s DNA materials in the state’s DNA data bank, and his DNA sample was ordered expunged.id: 24208
The court of appeal may remand a case to the trial court solely to address a Prop 47 petition to recall a sentence.While defendant’s forgery and grand theft convictions were on appeal, he petitioned the trial court for Prop 47 relief seeking to reduce one felony sentence to a misdemeanor. The trial court ruled that it lacked jurisdiction to act while the case was pending on appeal. The court found “a way out of this jurisdictional conundrum” by ordering a discretionary remand by the court of appeal to the trial court for the sole purpose of addressing within a specified time frame, a Prop 47 petition to recall a sentence. id: 24165
The minor was entitled to petition for modification of his sentence under Prop 47 even though his conviction was obtained by a plea agreement. The minor admitted in a plea agreement proceeding that he received stolen property worth less than $950 and a robbery charge was dismissed. The trial court later denied his request to modify the offense to a misdemeanor under Prop 47 finding that Prop 47 doesn’t apply to negotiated pleas. However, Penal Code section 1170.18 clearly states that the provision applies to convictions obtained by trial or plea. Finding that an appeal was neither speedy nor adequate, the court granted writ relief and ordered a hearing to determine whether the minor posed an unreasonable risk of committing a serious crime. id: 24085
Updated 8/10/2023Prop 47 applies to the theft version of mail theft under section 530.5(e). Prop 47 applies to mail theft convictions under Penal Code section 530.5(e) where the defendant’s conviction was for the theft version of that offense. So when the value of the “stolen” goods did not exceed $950, the offense had to be redesignated as petty theft under section 490.2. id: 27779
The trial court erred in denying defendant’s Prop 47 petition where the prosecution presented no evidence in support of its claim that the stolen car was worth more than $950.In 1998, defendant pled guilty to grand theft auto and unlawfully taking a vehicle. He recently filed a petition under Penal Code section 1170.18, seeking resentencing under Prop 47. He submitted admissible evidence from the Kelly Blue Book suggesting the value of the 1979 vehicle at the time of the theft was $525. The prosecution presented no evidence of the value of the car, but claimed the value of the car was over $950 which qualified the offense as a felony. The trial court erred in denying the petition because there was no evidence supporting the prosecution’s assertion regarding the worth of the vehicle. The only evidence on the issue of value was presented by the defense.id: 27044
Prop 47 did not require defendant’s felony fraudulent possession of personal identifying information counts be classified as misdemeanor thefts under section 490.2.Defendant’s convictions for felony fraudulent possession of personal identifying information under Penal Code section 530.5 (c)(2) could not be reclassified as misdemeanor thefts under section 490.2. id: 26960
Entering an interior room of a store that is off-limits to the public intending to steal therefrom is not shoplifting for purposes of Prop 47.If a person enters a store during regular business hours but then proceeds to a private back office with the intent to steal, he has committed a burglary and not shoplifting for Prop 47 purposes.id: 26051
The prosecution can charge theft instead of shoplifting the same property if it can show defendant would be guilty of the former but not the latter. As a general rule, Penal Code section 459.5 (b) prohibits a prosecutor from charging theft when there is probable cause that the defendant has committed shoplifting of the same property. As an exception, even when there is probable cause of shoplifting, the prosecution can charge theft instead, if it can articulate a theory supported by evidence under which the defendant would be guilty of theft but not shoplifting. id: 26794
A prosecutor may charge shoplifting with an allegation that the property is worth less than $950 such that petty theft is an uncharged lesser included offense.Penal Code section 459.5 (b) precludes charging shoplifting and theft of the same property, even in the alternative. But a prosecutor may charge shoplifting with an allegation that the value of the property does not exceed $950 such that petty theft is an uncharged lesser included offense under the accusatory pleading test. If shoplifting is so charged, and there is substantial evidence from which a jury could conclude the defendant committed petty theft but not shoplifting, the trial court is required to instruct on petty theft, and the jury must return an acquittal on shoplifting before it may return a verdict on petty theft.id: 26793
The “meaningful connection” requirement of the Prop 47 identity theft exception applies only where the defendant is convicted of forgery and identity theft in the same proceeding or if one offense facilitated the other.Prop 47 reduced the penalty for certain wobblers, including forgery not exceeding $950. However, there is an exception where a person is convicted of both forgery and identity theft. The exception applies only where there is meaningful connection between the two offenses. A meaningful connection requires a facilitative relationship, and the fact that a defendant possessed two separate items of contraband at the same time does not demonstrate such a relationship.id: 26792
In determining whether a forgery can be considered a misdemeanor under Prop 47, the court looks to the stated value of the check to see if it exceeded $950.Proposition 47 generally makes specified types of forgeries misdemeanors if the value of the forged instrument does not exceed $950. When the check contains a stated value, that amount is it’s value for this purpose.id: 25976
Burglary finding was reversed where minor’s act of taking property from the locker room of a commercial hockey rink was shoplifting under Prop 47.The juvenile court finding that a minor committed the burglary was reversed because the evidence was insufficient to show that he committed burglary rather than the new shoplifting crime defined by Prop 47. The court erred in denying the motion to dismiss the burglary count by finding that theft of an individual’s property in a commercial establishment is not shoplifting, and the locker room of a commercial hockey rink was not part of the commercial establishment.id: 25979
Under Prop 47, the balances in linked bank accounts can be relevant evidence of the fair market value of the stolen debit cards.The trial court denied defendant’s Prop 47 petition holding that his felony conviction for receiving stolen property under Penal Code section 496 was not subject to reduction to a misdemeanor because the fair market value of the two stolen debit cards in his possession was more than $950 as measured by the amounts in the victim’s bank accounts linked to the cards. On appeal, the court found that the balances in linked accounts could certainly be relevant evidence of the fair market value.id: 25941
Section 459.5 does not preclude the alternative charging of petty theft with a prior where intent upon entry is in question. Defendant argued that because he was charged with shoplifting under Penal Code section 459.5, he could not also be charged with petty theft with a prior under sections 484 and 666. However, alternate charging was proper where the element of intent upon entering the commercial establishment was in question.id: 25837
Prop 47 does not apply to conspiracy to commit petty theft. The trial court erroneously determined that a felony conviction for conspiracy to commit petty theft is eligible for reduction to misdemeanor shoplifting under Penal Code section 1170.18.id: 25846
A juvenile whose offense was reduced to a misdemeanor under Prop 47 was not entitled to have his DNA sample and genetic profile removed from the databank.The California Department of Justice maintains a databank of DNA samples and genetic profiles collected from certain adult and juvenile offenders. Juveniles declared wards based on felony conduct must submit samples but need not do so for misdemeanor offenses. The minor was declared a ward based on felony conduct that was later reduced to a misdemeanor under Prop 47. He was not entitled to have his DNA sample and profile removed from the databank. Prop 47 did not authorize that relief and equal protection did not compel it.id: 25847
Prop 47 does not require the dismissal of a failure to appear for a felony charge under section 1320.5 when the underlying offense has been reduced to a misdemeanor.Prop 47 does not require the dismissal of a failure to appear for a felony charge under Penal Code section 1320.5 when the underlying felony has subsequently been reduced to a misdemeanor under the initiative because a section 1320.5 conviction does not require the bail jumper’s felony charge to have resulted in a felony conviction or any conviction at all. id: 25809
Defendant’s conviction for receiving a stolen vehicle could not be reduced to a misdemeanor under Prop 47. Defendant argued his conviction for receiving a stolen vehicle under Penal Code section 496d, subd.(a) qualified for a reduction to a misdemeanor under Prop 47. However, a section 496d conviction does not qualify for Prop 47 relief.id: 25714
Receiving a stolen vehicle under section 496d is not eligible for Prop 47 relief.Receiving a stolen vehicle under Penal Code section 496d, was not listed among the Prop 47 eligible offenses, and does not qualify for Prop 47 consideration.id: 25768
Receiving stolen vehicle qualifies as obtaining property by theft for Prop 47 purposes.A conviction for receiving a stolen vehicle constitutes obtaining property by theft and qualifies for Prop 47 resentencing. However, defendant failed to demonstrate the stolen vehicle was valued at less than $950.id: 25663
Defendant’s conviction of theft from an elder under section 368, subd.(d) was not eligible for reclassification under Prop 47.Defendant was convicted of the felony offense of theft from an elder under Penal Code section 368, subd.(d) The trial court properly rejected his petition for Prop 47 relief because this was an aggravated form of theft - theft of an elder victim.id: 25667
Defendant’s theft of items from an open locker room inside a commercial hockey rink was a shoplifting under Prop 47.The juvenile court erred when it found the minor’s theft of items taken from an open locker room inside a commercial hockey rink was a burglary rather than the crime of shoplifting under Penal Code section 459.5. Moreover, because defendant committed an act of shoplifting, he could not also be prosecuted for the crime of receiving stolen property, so his conviction for that offense was also reversed.id: 25668
Double jeopardy did not preclude a new jurisdictional hearing where the prosecution could attempt to prove the section 10851 offense was a felony. After the passage of Prop 47, a violation of Vehicle Code section 10851 can only be deemed a felony if it was based on nontheft driving, or if it was based on theft of a vehicle worth more than $950. The minor’s adjudication was reversed where there was no evidence from which the court could have inferred the minor and his friends intended only to temporarily deprive the owner of possession of the vehicle. Double jeopardy did not bar a new jurisdictional hearing where the prosecution can attempt to prove the minor intended to temporarily deprive the owner of possession of the vehicle or that the vehicle was worth more than $950.id: 25628
Identity theft under section 530.5 is not a theft offense for purposes of Prop 47.In 2014, defendant pled guilty to two counts of identity theft under Penal Code section 530.5, subd. (a). He later sought to have the offenses reclassified as misdemeanors under Prop 47. The trial court did not err in denying the petition because identity theft under section 530.5 is not really a theft offense, and is not subject to reclassification under Prop 47.id: 25619
Prop 47 does not apply to receiving a stolen vehicle under Penal Code section 496d.Prop 47's revision to Penal Code section 496, making the offense of receiving stolen property a misdemeanor when the value of the property is $950 or less does not extend to convictions for receiving a stolen vehicle under section 496d.id: 26716
Defendant’s conviction for obtaining the identifying information of a group of people under Penal Code section 530.5, subd.(c) does not qualify for resentencing under Prop 47.Defendant argued that her conviction for obtaining identifying information of 10 or more people under Penal Code section 530.5, subd.(c), qualifies for relief under Prop 47. However, that provision addresses harms much broader than theft, and doesn’t require the information be acquired without the consent of its owner. id: 25550
The trial court properly denied Prop 47 relief to counts of stolen access card information where the amount charged was more than $950.Defendant was convicted of theft of access card information under Penal Code section 484e, subd.(d), and moved for relief under Prop 47. Relief was properly denied as to the counts where the evidence showed defendant charged more than $950 to the victims’ access cards. However, defendant was eligible for Prop 47 as to the two counts where less than $950 was charged to the victims’ cards.id: 25551
Defendants, whose cases were not final at the effective date of Prop 47, had to use the statutory resentencing procedure that included risk assessment.Defendants were serving felony sentences for crimes covered by Prop 47 on the measures’ effective date, but their cases were on appeal at that time, and thus not final. They were not entitled to automatic resentencing, and instead had to go through the statutory resentencing procedure, including the risk assessment prescribed by Penal Code section 1170.18, subd. (b).id: 25552
An identity theft conviction under section 530.5 cannot be reclassified as a misdemeanor under Prop 47.A felony conviction for misuse of personal identifying information under Penal Code section 530.5 (a) cannot be reduced to misdemeanor shoplifting under Prop 47 because identity theft is not really a theft. Rather, section 530.5 criminalizes the willful use of someone’s identifying information.id: 26684
The value of the defendant’s purchase is only one factor to consider when determining the value of stolen access card information.The Court of Appeal did not properly apply People v. Romanowski (2017) 2 Cal.5th 903, when affirming the denial of defendant’s Prop 47 petition. The issue involved the valuation of stolen credit card information and the Court of Appeal found the value of what the defendant obtained using the stolen card set a floor on the market value of the information. However, while that inquiry may be relevant, the matter must be resolved using other factors as well including the account balance, the amount of information the defendant possessed, and whether the value of the information had been diminished because of its sale in illicit markets.id: 26520
Prop 47 applies to prior prison term enhancements in cases that have not yet become final.Defendant argued that he improperly received a one year Penal Code section 667.5, subd.(b) enhancement for an offense the trial court designated a misdemeanor shortly after imposing the enhancement. Under the rule set forth in In re Estrada (1965) 63 Cal.2d 740, Prop 47 applies to section 667.5, subd.(b) enhancements in judgments that have not yet become final.id: 25024
Defendant did not commit shoplifting under Penal Code section 459.5 by entering a store intending to purchase goods with a forged check.The trial court did not err by denying defendant’s petition for resentencing under Prop 47 because his felony conviction for second degree burglary for entering a commercial establishment and acquiring merchandise by use of a forged check would not have constituted a violation of the new shoplifting provision if it had been in effect at the time of the offense.id: 25023
When a trial court grants Prop 47 relief on a subordinate term it may resentence defendant on any component of the aggregate term.When a trial court grants Prop 47 relief for a principal term, it must resentence the defendant on the subordinate term. When it grants Prop 47 relief on the subordinate term it may resentence the defendant on any component of the aggregate term.id: 24972
The fact that defendant’s 1992 murder conviction occurred after his felony drug convictions did not render him eligible for Prop 47 relief.Defendant applied to have his 1988 and 1989 felony drug convictions redesignated as misdemeanors under Prop 47. The trial court found he was ineligible because of a 1992 murder conviction. Contrary to defendant’s claim, the fact that his murder conviction occurred after the drug possession convictions did not render him eligible for Prop 47 relief.id: 24981
Prop 47 provision does not apply to a person who is not currently incarcerated but is still serving a period of parole on PRCS for an offense that would otherwise qualify.A person who is on Post Release Community Supervision (PRCS) is a person who is still “currently serving” (and has not “completed serving”) his or her sentence and therefore a petition for resentencing a person currently on PRCS is determined by Penal Code section 1170.18, subd.(a), rather than the Prop 47 provision, section 1170.18, subd.(f). id: 24947
The trial court did not err by refusing to redesignate defendant’s receipt of goods forgery conviction as a misdemeanor under Prop 47.In 2000, defendant pled guilty to felony forgery in violation of Penal Code section 470, subd.(a) for signing another person’s name to a receipt for goods. The trial court recently rejected his Prop 47 petition to have the offense redesignated as a misdemeanor. A section 470, subd.(f) forgery conviction is eligible for misdemeanor designation under Prop 47 in certain circumstances, but “receipt of goods” forgery is not one of those eligible forgery offenses.id: 24961
Failure to appear on felony conviction is not vacated even after the underlying felony is reduced to a misdemeanor under Prop 47. When a defendant is convicted of a failure to appear felony charge, but the underlying felony charge is later reduced to a misdemeanor under Prop 47, the court is not required to vacate the failure to appear conviction.id: 24963
The trial court had the authority to increase the sentence on remaining felony counts after granting Prop 47 relief on certain counts.When a defendant’s aggregate sentence includes multiple felony offenses, some of which are reduced to misdemeanors pursuant to Prop 47, a trial court may resentence the defendant to an increased term for the remaining felony offenses as long as the new aggregate sentence doesn’t exceed the original sentence.id: 24962
Defendant did not commit shoplifting under Prop 47 when he entered and took property from inner offices within the stores. Defendant entered commercial establishments during regular business with a larcenous intent. He thereafter entered separate office areas - areas off-limits to the general public - where he took property. Defendant’s conduct was not considered shoplifting for purposes of the new Prop 47 provision - Penal Code section 459.5. id: 24965
In deciding whether the burglary of a pawn shop achieved by pawning stolen goods is reducible to shoplifting under Prop 47, the value of the property obtained in the exchange must be less than $950. In a commercial burglary involving the successful pawning of stolen goods, the relevant value for Prop 47 purposes is that of the property received in exchange for the stolen goods, not the value of the stolen goods pawned.id: 24924
Riverside County had sole jurisdiction to decide the Prop 47 issue after the transfer from San Diego under section 1203.9.The Riverside Superior Court granted defendant’s Prop 47 petition to reduce a felony drug conviction to a misdemeanor. Defendant had originally been sentenced by the San Diego Superior Court but “the entire jurisdiction” of the case had been transferred to Riverside under Penal Code section 1203.9. Contrary to the prosecution’s claim, Riverside had sole jurisdiction of the case and superior court in Riverside was the proper court to decide the petition.id: 24891
Trial court may revisit sentences on other misdemeanor counts when resentencing on a Prop 47 remand but may not impose a new term that exceeds the prior sentence.When a court recalls a felony sentence and imposes a misdemeanor sentence pursuant to Penal Code section 1170.18, it may revisit the sentence imposed on other misdemeanor counts not subject to Prop 47 and impose a harsher punishment provided that the new aggregate term does not exceed the prior sentence. id: 24898
A bank is a commercial establishment for purposes of the new shoplifting offense created by Prop 47.Defendant pled guilty to second degree burglary based on his attempt to pass a forged check of $300 at a bank. The superior court properly granted his petition under Prop 47 to have the felony conviction redesignated as the newly created misdemeanor of shoplifting under Penal Code section 459.5, subd.(a). Contrary to the prosecution’s argument, the bank was a commercial establishment for that purpose. Moreover, it did not matter that the prosecution might have charged the felony of burglary predicated on the identity theft, as the Prop 47 analysis only looks at the actual conviction.id: 24855
Defendant’s act of breaking into a specific storage unit was not shoplifting for purposes of Prop 47.The trial court did not err in denying defendant’s Prop 47 petition after finding his offense was not shoplifting as he was convicted of second degree burglary of a specific storage unit, not burglary of a commercial establishment open during business hours.id: 24859
The trial court properly denied defendant’s Prop 47 petition where defendant failed to show the forged check he tried to cash at a bank was for less than $950.Defendant was previously convicted of second degree burglary and forgery based on an incident where he entered a bank, and falsely impersonated another person with the intent to commit a felony by signing someone’s name to a check. While a bank is a commercial establishment for the shoplifting provision, the trial court properly denied defendant’s Prop 47 petition based on his failure to show the value of the check did not exceed $950.id: 24860
The trial court’s authority to revoke and reinstate parole on condition that parolee serve extra time following a Prop 47 resentencing is not limited by the 364-day maximum sentence for misdemeanors. Defendant serving a 16 month term for a drug conviction was resentenced under Prop 47 and ordered released from prison with 360 days credit and placed on parole for one year. He violated parole and was sentenced to 60 days in custody. He claimed the court lacked the authority to impose more than four days because the maximum confinement time for his drug offense was 364 days. However, the court’s authority under Penal Code sections 1170.18, subd.(d) and 3000.08, subd.(f), to revoke and reinstate parole on condition that the parolee serve additional custody time was not limited by the 364-day maximum sentence for misdemeanors. id: 24879
The trial court did not err by resentencing defendant to the same term he originally received after granting Prop 47 relief as to two counts. The trial court granted defendant’s request to reduce two of his several convictions to misdemeanors under Prop 47. The trial court did not thereafter err by resentencing defendant to an overall prison term that was the same length as his original, plea bargained sentence given defendant’s significant criminal history.id: 24883
The trial court is not authorized to order expungement of a defendant’s DNA sample when granting a Prop 47 request to redesignate a felony as a misdemeanor. The juvenile court did not err by denying the minor’s request to expunge his DNA samples from the state’s database following the court’s grant of a request to redesignate his felony offense as a misdemeanor. Prop 47 does not authorize such an action. id: 24888
Redesignation of a felony to a misdemeanor under Prop 47 does not require expungement of the minor’s DNA sample.Because misdemeanants are not required by law to provide DNA samples for the state database, the minor argued his existing sample had to be expunged after the court granted his request to reduce his felony to a misdemeanor. However, designation of a felony as a misdemeanor under Prop 47 does not require expungement.id: 24889
Prop 47 resentencing was not available for a defendant with a section 666 conviction who was required to register as a sex offender as a result of a juvenile adjudication.A person is not eligible for Prop 47 resentencing following a Penal Code section 666 (petty theft with a prior) conviction if that person is required to register as a sex offender as a result of a prior juvenile adjudication. This treatment of registered juvenile sex offenders did not deny defendant equal protection of the law.id: 24841
Defendant had to file his Prop 47 petition in Napa County where the judgment of conviction was entered rather than in Alameda where his probation was being supervised.Defendant was convicted of a second degree burglary in Napa County but the supervision of his probation was transferred to Alameda County following a felony conviction in that county. He later filed a Prop 47 petition in Alameda seeking to have the burglary reduced to a misdemeanor. However, under the express language of Prop 47, the petition had to be filed in Napa County, where the judgment of conviction was entered.id: 24845
The redesignation of defendant’s felony conviction to a misdemeanor under Prop 47 did not undermine the validity of his MDO commitment. Defendant had his felony grand theft conviction redesignated as a misdemeanor under Prop 47. He argued his commitment or recommitment as a mentally disordered offender had to be vacated because of the absence of a foundational felony. However, under the MDO statute, the redesignation of the felony to a misdemeanor did not undermine the validity of his initial civil commitment, which was legally sound at the time the determination was made. id: 26373
Defendant was entitled to Prop 47 resentencing because his grand theft conviction was reclassified as a misdemeanor. Defendant was entitled to resentencing under Prop 47 because his grand theft conviction for violating Penal Code section 484e, subd.(d) (using someone else’s debit card) has now been reclassified as a misdemeanor under section 490.2, subd.(a). Moreover, the value of the access card information was necessarily less than $950 because the intrinsic value of acquiring and retaining access card information is minimal unless used.id: 24448
Burglary conviction for using explosives to blow up an ATM machine was not eligible for resentencing as shoplifting under Prop 47. The trial court did not err in denying defendant’s Prop 47 petition for resentencing because his second degree burglary conviction for using explosives to blow up an ATM machine did not qualify as shoplifting under Penal Code section 459.5.id: 26222
Defendants who committed their crimes before Prop 47's effective date but were tried or sentenced after that date are entitled to the initial sentencing procedure.There are differences between Prop 47's amended penalty provisions, and resentencing under section 1170.18's petition procedure. The latter is more restrictive. Defendants who had not yet been sentenced as of Prop 47's effective date are entitled to initial sentencing under Prop 47's amended penalty provisions, without regard to the resentencing procedures applicable to those who were already serving their sentences.id: 26143
Post theft driving under Vehicle Code section 10851 does not qualify for Prop 47 relief. Defendant was convicted of the unlawful taking or driving of a vehicle under Vehicle Code section 10851. While taking a vehicle under that provision may qualify for Prop 47 treatment, post theft driving offenses, such as what occurred here, do not,. Treating acts differently is not absurd and does to violate equal protection.id: 26131
“Identity theft” under section 530.5 (c) is a nontheft offense and may not be reclassified as petty theft under Prop 47.Defendant was convicted of four counts of obtaining personal identifying information with the intent to defraud under Penal Code section 530.5 (c). He argued the convictions should have been reduced to misdemeanors under section 490.2's petty theft provision. However, section 530.5 (c) is not subject to reclassification under Prop 47 because section 490.2 only reclassifies theft offenses, a violation of section 530.5 (c) is a nontheft offense, and to conclude otherwise would be contrary to the intent of Prop 47.id: 26130
Possession of multiple counterfeit bills was a single offense in forgery case, and the trial court properly denied defendant’s petition for Prop 47 relief. Defendant pled guilty to felony forgery under Penal Code section 476, based on his possession of $1,130 in counterfeit bills. He then moved for Prop 47 relief claiming the value of the counterfeit bills did not exceed $950. However, the possession of multiple counterfeit bills at a single time was one offense, and the trial court properly denied the petition.id: 25560
Transportation for sale was a felony in 2007 and defendant would have been ineligible for Prop 47 relief if it had been in effect at that time, so his current petition was properly denied.Defendant who had been convicted of transporting methamphetamine in 2007 sought Prop 47 relief. The trial court erred by denying relief on the grounds that Health and Safety Code section 11379 wasn’t specifically enumerated in Penal Code section 1170.18(a). However, defendant was nevertheless ineligible for resentencing because if Prop 47 had been in effect when defendant committed the offense in 2007, he would still have been guilty of a felony not covered by Prop 47.id: 25604
A defendant who suffers a disqualifying “prior conviction” after filing for redesignation under Prop 47 but before the ruling on that application is ineligible for Prop 47 relief. Penal Code section 1170.18 permits a person who has completed the sentence for an eligible felony conviction to apply to have it redesignated as a misdemeanor, as long as the applicant meets specified criteria and has not suffered a disqualifying “prior” conviction. A person who suffers a disqualifying conviction after filing a redesignation application but before the trial court’s ruling on that application is barred from relief under section 1170.18.id: 25511
Defendant’s forgery of a prescription conviction was not eligible for reclassification under Prop 47.The trial court did not err by denying defendant’s request to reclassify his forgery of a narcotics prescription (Health and Safety Code section 11368) conviction as a misdemeanor under Prop 47. It was not on the list of eligible offenses despite the inclusion of other forms of forgery. Moreover, there are policy reasons to prevent reclassification of the offense as it undermines the integrity of our medical system.id: 25436
The trial court did not violate double jeopardy by vacating the unauthorized Prop 47 misdemeanor sentence and reinstating the felony burglary sentence. The trial court erroneously granted defendant’s Prop 47 petition to reduce his second degree burglary to a misdemeanor. The offense did not qualify under the new shoplifting provision because it involved an entry into a storage locker leased by an individual, and the locker was not a commercial establishment. Because the sentence was unauthorized, the trial court did not violate double jeopardy principles by vacating the misdemeanor and reinstating the felony sentence.id: 25439
The reduction of defendant’s felony conviction to a misdemeanor under Prop 47 did not require the court to grant the motion to expunge her DNA from the state’s database. When a felony is reduced to a misdemeanor under Prop 47, the state may retain an adult misdemeanant’s previously collected DNA sample and genetic profile. The denial of the defendant’s motion to expunge her DNA sample did not violate her equal protection rights given the state’s interest in preserving the integrity and vitality of its DNA database system. Neither did the state’s retention of defendant’s sample violate her right of privacy as the procedure is minimally invasive and use of the DNA samples is strictly limited by statute.id: 25350
Prop 47's definition of “unreasonable risk of danger to the public safety” does not apply to resentencing proceedings under the Three Strikes Reform Act.Prop 47's definition of “unreasonable risk of danger to public safety” does not apply to resentencing procedures under the Three Strikes Reform Act. The refusal to construe Prop 47's definition to apply to the Three Strikes Reform Act does not violate equal protection or due process.id: 25290
Evidence showed a connection between defendant’s subset of the East Side Bolen gang and the subset who committed the predicate offenses used to establish the gang enhancement.In People v. Prunty (2015) 62 Cal.4th 59, the court held that when the prosecution seeks to prove a gang enhancement by showing predicate acts committed by a gang’s subset, it must prove a connection between the gang and its subset. In this case there was testimony showing contacts between the Locos (defendant’s subset) and the Rascals (the subset of the perpetrators of the predicate offenses) and a showing that they all identified with the larger East Side Bolen gang.id: 25288
Defendant could not seek Prop 47 reclassification of a 2006 drug conviction where he had a 2013 “prior conviction” for attempted murder.Penal Code section 1170.18, subd (i) disqualifies a person who has suffered a super strike conviction any time before the trial court rules on his or her reclassification petition. Defendant was convicted of attempted murder (a disqualifying super strike) in 2013. He was disqualified from seeking reclassification of a 2006 felony drug conviction. The “prior conviction” language in Prop 47 includes any conviction occurring before the court rules on the petition.id: 25312
The trial court did not err by denying Prop 47 resentencing for a defendant convicted of access card forgery even though other types of forgery are eligible for Prop 47 relief. Defendant argued the trial court erred by denying her Prop 47 request for resentencing on the access card forgery offenses, because those convicted of other types of forgery are eligible for Prop 47 relief. However, access card forgery is not one of the offenses listed under Penal Code section 473.1 subd. (b) that are now misdemeanors, so there was no error. Moreover, there was no equal protection violation where there was a plausible basis for treating access card forgery different than the other offenses - that is, it carries a greater potential for identity theft. id: 25309
Juvenile adjudications may be treated as prior convictions that would disqualify a defendant for Prop 47 relief in certain circumstances.A prior juvenile adjudication may constitute a disqualifying prior conviction within the meaning of Penal Code section 1170.18, subd.(i) if all of the conditions set forth in section 667, subd.(d) are satisfied. However, a juvenile adjudication for an offense listed in section 290, subd.(c) does not constitute a prior conviction under section 1170.18, subd.(i) unless the prerequisite conditions listed in section 667, subd.(d)(3) are also satisfied.id: 25256
Reclassification of a felony to a misdemeanor under Prop 47 did not affect the prior prison term enhancement that was attached to the conviction.The trial court granted defendant’s Prop 47 petition to reclassify a theft with a prior conviction to a misdemeanor. However, the reclassification did not preclude the use of the offense to support defendant’s Penal Code section 667.5, subd.(b) prior prison term enhancement.id: 25119
Defendant’s use of a forged prescription to obtain drugs from a pharmacy did not constitute shoplifting for Prop 47 purposes.The trial court did not err in denying defendant’s Prop 47 resentencing petition because her second degree commercial burglary conviction involving the entry into a store with the intent to obtain drugs by using a forged prescription does not fall within Penal Code section 459.5 - the new shoplifting misdemeanor offense.id: 25077
Defendant’s felony forcible rape juvenile adjudication in 1980, proved by a probation report, disqualified him for Prop 47 relief.The trial court found defendant was ineligible for Prop 47 relief because of a felony forcible rape juvenile adjudication. The hearsay statements in the probation report presented to the court were sufficiently reliable to be admissible. The forcible rape adjudication was a disqualifying prior because it was a “super strike,” it is an offense listed in Welfare and Institutions Code section 707, subd.(b), and it is a serious and violent felony.id: 25084
The 15% conduct credit limit imposed by section 2933.1 applies to a sentence even after the felony drug conviction was reclassified as a misdemeanor under Prop 47.Defendant’s felony drug possession offense was reclassified as a misdemeanor under Prop 47. His sentence for that offense was imposed consecutively to another offense subject to a 15 percent conduct credit limit under Penal Code section 2933.1. That provision continues to apply to defendant’s sentence after his felony drug possession offense was reclassified as a misdemeanor under Prop 47.id: 25087
The trial court did not err by refusing to strike the prior prison term enhancement after reclassifying a felony as a misdemeanor under Prop 47.A previously imposed sentence enhanced by a Penal Code section 667.5 subd.(b) prior prison term is not altered by the granting of a Prop 47 petition to reduce the felony that gave rise to that prior prison term to a misdemeanor.id: 25100
Defendant was subject to the Prop 47 prohibition against firearm possession even though he was on probation and had not been sentenced to prison. Prop 47 provides that persons “currently serving a sentence”for an enumerated felony may petition for resentencing. However, those individuals are subject to a ban on possessing a firearm under Penal Code section 1170.18, subd.(k). Defendant argued that because he was on probation with imposition of sentence suspended, he was not “serving a sentence” for purposes of section 1170.18. However, people on probation are “serving a sentence” for purposes of the statute.id: 25061
Defendant could not apply Prop 47 retroactivity to invalidate an initial MDO commitment. Defendant argued that redesignation of his original offense as a misdemeanor under Prop 47 meant that he no longer met the criteria for an initial commitment as a mentally disordered offender (MDO), and therefore he was entitled to be released from his MDO commitment. However, the voters did not intend to apply Prop 47 retroactively for the collateral purposes of invalidating an initial MDO commitment. id: 25062
The transferee juvenile court has the power to rule on a Prop 47 recall petition. A juvenile court that accepts transfer of an entire delinquency case from another county under Welfare and Institutions Code section 750 may rule on a Prop 47 petition to recall the disposition made by the transferor county.id: 25021
A conviction for receiving a stolen vehicle is not an eligible offense under Prop 47.The trial court did not err by finding defendant was ineligible for Prop 47 resentencing based on his conviction for receiving a stolen vehicle under Penal Code section 496d.id: 24899
Prior conviction for theft and unlawful driving or taking a vehicle under section 10851 does not qualify for Prop 47 relief. Defendant argued that a conviction under Vehicle Code section 10851 is eligible for Prop 47 resentencing because the voters intended that Prop 47 change the punishment scheme for all auto thefts through section 490.2. However, violating Vehicle Code section 10851 is not obtaining property by theft, and, it was not directly modified by Prop 47. Moreover, the equal protection clause doesn’t require those convicted under section 10851 be treated equally with those who have been convicted of theft involving an automobile or other low value property.id: 24908
Credit for time served after a Prop 47 reduction to a misdemeanor cannot be applied to reduce the one year parole period.When a person’s sentence is reduced from a felony to a misdemeanor under Prop 47, he or she is entitled to credit for time served upon resentencing. Often the credit will exceed the new sentence, thus entitling the person to an immediate release. The defendant is also subject to a one year parole period upon release. Any excess credit for time served cannot be credited against the defendant’s parole period.id: 24756
The initial burden of establishing Prop 47 eligibility is on the defendant. The petitioning defendant, not the prosecution, has the initial burden of establishing eligibility for Prop 47 resentencing, and the trial court is not limited to consideration of the record of conviction. The order denying the petition was affirmed without prejudice in the event defendant seeks to meet his initial burden of establishing entitlement to Prop 47 relief. id: 24761
When felony convictions in two other cases were reduced to misdemeanors under Prop 47, there was no impediment to the reimposition of the six prior prison term enhancements upon resentencing in the present case. Prior prison term enhancements do not attach to a particular count or case. Instead, they attach to an aggregate sentence irrespective of whether that sentence is pronounced for multiple convictions in the same case or in multiple cases. Here, the court pronounced an aggregate sentence for multiple sentences in three separately brought cases, and the court “dismissed” six prior prison term enhancements in the present case because it had imposed them in another case. However, the purported dismissals were ineffectual because the enhancements attached to the aggregate sentence and had been imposed on that sentence. Thus, when the felony convictions in the two other cases were later reduced to misdemeanors under Prop 47, there was no impediment to the reimposition of the six prior prison term enhancements upon sentencing in that case.id: 24737
“Prior conviction” ineligibility for relief means a disqualifying conviction that occurred any time before the filing of the application for Prop 47 relief.Defendant sought to have his 1999 felony conviction for possession of a controlled substance reclassified as a misdemeanor under Prop 47. The trial court denied his request finding he was ineligible because of a prior disqualifying conviction. He argued that Prop 47 only precludes reclassification where a defendant had a “prior” disqualifying conviction and his aggravated kidnapping convictions occurred after his drug possession conviction. However, the “prior conviction” ineligibility for relief means a disqualifying conviction that occurred any time before the filing of the application for Prop 47 relief. id: 24740
The finding of dangerousness resulting in the denial of Prop 47 relief was supported by the fact that defendant was on probation when he committed the theft offense and had recently threatened to kill a robbery victim.Defendant argued the trial court erred in denying him Prop 47 relief after finding he would pose an unreasonable risk of danger to the public. However, defendant’s record showed he made no serious attempts to reform as the present grand theft offense took place while he was on probation, and he threatened to kill his 2012 robbery victim. The evidence supported the dangerousness finding. One need not have previously been convicted of a “super strike” offense to be found dangerous for these purposes.id: 24746
A “prior conviction” for Prop 47 purposes includes any offense committed before filing the petition seeking relief.Penal Code section 1170.18 allows for the redesignation of certain felony drug offenses as misdemeanors. But that relief is unavailable for someone who has suffered a “prior conviction” for a violent felony. Defendant argued that he had not suffered a “prior” conviction because he pled guilty to his cocaine possession offense in 1989, and at the same time was convicted of attempted murder in another case. He claimed that because the convictions were contemporaneous, the attempted murder was not a prior conviction. However, for purposes of Prop 47, a prior conviction includes any offense that occurred before the filing of the petition for redesignation.id: 24748
Prop 47 did not allow the court to retroactively alter defendant’s 1995 sentence after designating the offense as a misdemeanor.Defendant petitioned to have his 1995 felony conviction designated as a misdemeanor under Prop 47. He also asked the court to vacate his resulting 16 month sentence. However, Penal Code section 1170.18 allows resentencing only for petitioners currently serving a sentence for a qualifying felony. Because defendant was not currently serving the sentence relating to his qualifying conviction, section 1170.18 did not give the trial court jurisdiction to vacate or otherwise change defendant’s completed sentence.id: 24702
Minor was not entitled to DNA record expungement after getting felony reduced to a misdemeanor under Prop 47.The minor admitted to a second degree burglary by shoplifting in 2012. She later petitioned for Prop 47 relief seeking redesignation of the offense as a misdemeanor. The juvenile court reduced the offense but denied her other request for DNA record expungement (on the theory that she would not have had to provide a DNA sample for a misdemeanor). The Legislature enacted a bill (AB 1492), which prohibits the granting of a request for expungement in connection with a Prop 47 petition. Because that bill clarifies, rather than changes, the law it precludes the granting of requests for expungement made prior to its enactment.id: 24683
Prop 47 does not prohibit imposition of the same aggregate term if defendant qualifies for relief as to some counts.After serving a portion of his sentence, defendant petitioned for Prop 47 relief. The court reduced two of his convictions to misdemeanors, and imposed the same aggregate term that was originally imposed. Contrary to defendant’s claim, Prop 47 did not require that he get a reduced overall term if he qualified for sentence reduction on some counts. id: 24687
Unlawful taking or driving a vehicle was not an offense entitling defendant to Prop 47 relief.The trial court properly found that defendant’s 2003 conviction for unlawfully taking or driving a vehicle did not involve an offense that qualified him for Prop 47 relief. id: 24693
Defendants are not entitled to have the appellate court remand for Prop 47 resentencing, and instead must petition the trial court for relief.Defendant was not entitled to have the appellate court remand his case for resentencing under Prop 47. He was required to file a petition in the trial court. However, because the case had to be returned to the trial court to make a determination regarding Prop 36 probation, the matter was remanded.id: 24677
Once the court resentenced defendant’s 2011 conviction as a misdemeanor under Prop 47, he no longer qualified for the one year prior prison term enhancement for that conviction.Before sentencing, the trial court recalled defendant’s 2011 felony sentence and resententenced him to a misdemeanor. Since he no longer had the prior felony when sentenced in the present case, the court erred by imposing a one year prior prison term enhancement for the earlier prior.id: 24660
Defendant who was on felony probation when Prop 47 became effective was required to file a petition and was not entitled to an automatic reduction under Estrada. Persons on probation for a felony conviction are “currently serving a sentence” for purposes of Prop 47. Defendant was therefore not entitled to an unconditional reduction of his felony drug possession conviction to a misdemeanor under In re Estrada (1965) 63 Cal.2d 740. Instead, defendant was required to file a Prop 47 petition to get relief. id: 24620
Defendant’s transporting meth conviction should have been reduced to a misdemeanor under Prop 47 but the remedy was remand to allow him to withdraw the plea.Under Prop 47, defendant’s conviction for transporting methamphetamine under Health and Safety Code section 11379 should have been reduced to a misdemeanor possession. The matter was remanded to allow defendant the chance to withdraw his guilty plea and the prosecution may proceed on the original charges.id: 24629
Court looks at stated value rather than intrinsic value of forged check to determine Prop 47 eligibility.Defendant who was convicted of forgery of a check written for more than $950 was not entitled to Prop 47 resentencing. The court looks to the stated value, and not the de minimus “intrinsic value” of the check when determining Prop 47 eligibility.id: 24585
Defendant’s purchase of a phone in an AT&T store using counterfeit bills, was shoplifting, and he was eligible for Prop 47 relief.Defendant purchased a prepaid phone in the AT&T store using counterfeit bills. Because the amount was less than $950 he could not be prosecuted for burglary. The trial court erred in finding he was ineligible for resentencing under Prop 47.id: 24587
Defendant was not entitled to have his theft from an elder offense reduced to a misdemeanor under Prop 47.Defendant argued the trial court erred in denying his request for Prop 47 resentencing of his theft from an elder conviction in violation of Penal Code section 368, subd.(d). He claimed the court erred by failing to state any reasons when denying his request. However, theft from an elder was not an offense listed under Prop 47, and defendant was therefore ineligible for the requested relief.id: 24596
Violations of section 10851 are not eligible for Prop 47 resentencing. Defendant argued the trial court erred in denying Prop 47 relief for her felony conviction of taking or driving a vehicle under Vehicle Code section 10851, subd.(a). However, section 10851 is not eligible for resentencing under Prop 47 under any legal theory.id: 24598
Defendant was not entitled to Prop 47 resentencing for his cultivating marijuana conviction. The trial court denied defendant’s Prop 47 petition after finding his conviction for cultivating marijuana was not eligible for resentencing. Contrary to defendant’s claim, the ruling did not violate equal protection principles because people who cultivate marijuana are not similarly situated to people who possess it. id: 24566
Defendant who entered a bank intending to commit identity theft failed to show his eligibility for Prop 47 resentencing.The trial court erred by granting defendant’s Prop 47 petition reducing his second degree burglary conviction to misdemeanor shoplifting. The record shows defendant entered the bank intending to commit identity theft, but that is not an offense identified in Penal Code section 459.5, subd.(a), which refers to entry with the intent to commit petty theft. Defendant failed to establish his eligibility for Prop 47 resentencing. id: 24571
Prop 47 relief was not available for a defendant who entered a building intending to commit perjury. Defendant was convicted of felony second degree burglary based on his entry into a building with the intent to commit the felony of perjury. This was not a felony offense that could be reduced to a misdemeanor under Prop 47.id: 24574
The redesignation of a felony as a misdemeanor under Prop 47 did not affect the validity of the prior prison term enhancement attached to the offense. The Penal Code section 667.5, subd.(b) prior prison term enhancement remained valid even though the felony that produced the prison term was later redesignated as a misdemeanor under Prop 47.id: 24577
Section 1170.18 does not provide for retroactive redesignation, dismissal or striking of final pre-Prop 47 sentence enhancements based on priors that were reduced to misdemeanors under Prop 47. Defendant moved to dismiss a one year prison prior enhancement imposed at his 2013 sentencing. He argued that because, after his sentencing, he obtained a Prop 47 order reducing his 2004 conviction on which the prison prior enhancement was based from a felony to a misdemeanor, the trial court should have stricken or dismissed the enhancement. However, Penal Code section 1170.18 doesn’t provide for retroactive redesignation, dismissal, or striking of final pre-Prop 47 sentence enhancements based on prior convictions that are subsequently reduced from felonies to misdemeanors under section 1170.18.id: 24526
Prop 47 relief is not available for defendants convicted of buying or receiving a stolen vehicle, and the fact that it applies to other theft-related offenses does not offend equal protection principles. The trial court did not err in denying defendant’s Prop 47 petition because his 2012 conviction for buying or receiving a stolen motor vehicle was not one of the theft-related offenses provided in Penal Code section 1170.18. The fact the Prop 47 applies to other theft-related offenses where the value of the stolen property is less than $950 does not violate the equal protection provisions as there are plausible reasons for the distinction including the fact that buying or receiving a stolen vehicle may have a greater impact on victims.id: 24507
The prior prison term enhancement under section 667.5, subd. (b) was properly applied where defendant had been sentenced before Prop 47 became effective.Defendant was convicted of receiving stolen property in 2012 and served a prison term for the offense. In the present case, her sentence was enhanced under Penal Code section 667.5, subd.(b) because of that prison prior. Contrary to defendant’s claim, the enactment of Prop 47 (making receipt of certain stolen property a misdemeanor) after the sentencing did not require the trial court to strike the prison prior. The offense was a felony at the time she was sentenced and she had served a prison sentence for that offense, so the prior prison enhancement was properly applied.id: 24510
Because defendant had been sentenced for the meth possession before the effective date of Prop 47, she needed to seek relief by a petition in the trial court. Defendant argued her conviction for methamphetamine possession should have been reduced to a misdemeanor under Prop 47. However, defendant was sentenced before the effective date of Prop 47. Because the electorate did not intend that Prop 47 be automatically applied to persons already sentenced for listed offenses, she was required to seek relief by presenting a petition in the trial court. id: 24509
Defendant was not eligible for Prop 47 relief because his offenses of unlawfully driving a vehicle and receiving a stolen vehicle were not listed in section 1170.18.The trial court did not err in denying defendant’s request to reduce his felony convictions to misdemeanors under Prop 47. His convictions of Vehicle Code section 10851 (unlawful driving a vehicle) and Penal Code section 496d (receiving a stolen vehicle) involved offenses not listed in Penal Code section 1170.18, subd.(a), and he was therefore not entitled to relief.id: 24484
Defendant’s Prop 47 petition failed to present evidence showing the value of the stolen property.Defendant argued the trial court erred by denying his Prop 47 petition by determining without sufficient evidence that the credit card he was convicted of receiving exceeded $950 in value. However, defendant had the burden, and failed to submit evidence regarding the value of the stolen property. Defendant could refile his petition and provide evidence of his eligibility.id: 24494
Unlawful taking or driving is not a qualifying offense under Prop 47 in any circumstance. Defendant argued the trial court erred by denying his Prop 47 petition seeking to redesignate his prior felony conviction for unlawful taking or driving a vehicle (Vehicle Code section 10851) as a misdemeanor because there are times when the offense involves a theft. However, unlawful taking or driving of a vehicle is not a qualifying offense under section 1170.18.id: 24460
Grand theft under section 484e, subd.(d) is not a qualifying offense under Prop 47.Defendant pled guilty to grand theft under Penal Code section 484e, subd. (d) for attempting to purchase an iPad with a credit card that had been issued to someone else. The trial court did not err by denying his later Prop 47 petition to resentence him for a misdemeanor because his conviction was not for a qualifying offense.id: 24431
Defendant seeking reclassification of his prior drug offenses as misdemeanors under Prop 47 had to petition the court in which he suffered those convictions.Defendant had three prior convictions for drug possession under Health and Safety Code section 11350 that he sought to have reclassified as misdemeanors under Prop 47. However, the law provides no procedure for reclassifying prior convictions through a petition for resentencing on a current conviction. Rather, as to the prior offenses, defendant was required to file a petition in the court in which he suffered those convictions.id: 24445
Minor’s theft of a cell phone from a school locker was not a theft from a “commercial establishment” and was not eligible for reclassification under Prop 47. A minor stole another student’s cell phone from a school locker. The juvenile court found that he had committed a burglary in violation of Penal Code section 459. The minor later filed a Prop 47 petition to change the juvenile felony burglary offense to misdemeanor shoplifting under newly-enacted section 459.5. However, a public high school is not a “commercial establishment” and the minor’s offense was not eligible for reclassification under Prop 47.id: 24417
Defendant’s conviction for second degree burglary under section 459 did not meet the statutory definition for shoplifting for Prop 47 purposes.Defendant was convicted of second degree commercial burglary. He argued the trial court should have granted his petition for recall and resentencing under Prop 47 because his offense met the statutory definition of shoplifting under Penal Code section 459.5. However, because shoplifting under section 459.5 requires “an intent to commit larceny,” defendant’s offense did not meet the statutory definition. Because section 459 was not listed in section 1170.18, defendant was not eligible for resentencing.id: 24386
The prosecution may withdraw from the plea agreement and reinstate the original charges where the plea-bargained felony becomes a misdemeanor under Prop 47.Defendant pled guilty to a felony grand theft count and admitted a strike prior in exchange for the dismissal of the more serious robbery charge. A year later, after Prop 47 was passed, he successfully moved to have the theft conviction reduced to a misdemeanor. Under those circumstances, the prosecution was entitled to withdraw from the plea and reinstate the previously dismissed charges. id: 24403
Theft of access card information under section 484e(d) was not an offense listed in Prop 47 and was not subject to resentencing as a misdemeanor.Defendant moved to have his two felony convictions for theft of access card information (Penal Code section 484e(d)) recalled and resentenced as misdemeanors under Prop 47. However, the trial court properly denied the request because a conviction under section 484e(d) is not one of the offenses listed in section 1170.18(a).id: 24370
Defendant who had pled guilty to receiving a stolen vehicle was not entitled to Prop 47 resentencing.Defendant pled guilty to a single felony count of receiving a stolen motor vehicle in violation of Penal Code section 496d, subd.(a). The trial court did not err by later finding him ineligible for resentencing under Prop 47 because his offense was not among those specified offenses that qualify for Prop 47 relief.id: 24385
Defendant seeking resentencing under Prop 47 has the burden of proving the value of the stolen property did not exceed $950.The trial court did not err in denying defendant’s Prop 47 petition for resentencing. Defendant had the burden of proving the value of the property taken in the commercial burglary was less than $950. Contrary to defendant’s claim, he was not entitled to a jury trial on the value of the property. id: 24354
Defendant convicted of violating section 484e (d) for acquiring access card information with the intent to defraud was not eligible for Prop 47 relief.Defendant was convicted of several counts of violating Penal Code section 484e (d) for the unauthorized acquisition or retention of access card account information of another. He sought resentencing under Prop 47. Section 484e (d) defines the offense as grand theft. Section 490.2, adopted as part of Prop 47 provides that grand theft of money or property valued under $950 shall be considered petty theft. But defendant didn’t take any money or property. He possessed access card account information which posed a threat of identity theft and harm to the victims. Because section 484e (d) does not require that the victims actually be defrauded or suffer monetary loss, it falls outside the scope of section 490.2.id: 24355
Defendant who was convicted of violating section 10851, a wobbler, was not entitled to resentencing under Prop 47.Defendant pled guilty to the unlawful taking of a vehicle under Vehicle Code section 10851. Thereafter, the voters enacted Prop 47 and defendant sought resentencing. He argued that since Prop 47 applied to grand theft auto under Penal Code section 484, subd.(d)(a), it should apply to section 10851, which is a lesser included offense of that section. But if Prop 47 was intended to apply to lesser included offenses it would say so, and it does not.
id: 24363
The trial court lacked jurisdiction to resentence defendant on two counts pursuant to Prop 47 while her appeal was pending. While defendant’s appeal was pending, she sought Prop 47 relief in the trial court asking that her sentence on two felony convictions be designated as misdemeanors. However, the trial court lacked jurisdiction to resentence on those counts while the case was pending appeal.id: 24334
Defendant who was still on PRCS when he filed his Prop 47 petition was still serving his sentence, and was subject to the one year parole requirement. In 2014, while defendant was still serving postrelease community supervision, he petitioned under Penal Code section 1170.18 for a reduction of his 2011 felony to a misdemeanor. The court imposed a jail term and imposed a year of parole but defendant argued that because he had completed his sentence the court could not impose parole. However, because defendant was still on PRCS when he filed the petition, he was still serving his sentence for Prop 47 purposes, and was subject to the one year parole requirement. id: 24340
The trial court did not err by increasing the term for the original subordinate offense after granting Prop 47 relief on the offense that was designated the principal term. In case one, defendant was sentenced to eight months which was one-third of the two year midterm, to be served consecutive to the three year principal term of case two. The trial court later denied Prop 47 relief as to case one but granted it as to case two and resentenced defendant to two years county jail in case one. The increased sentence as to case one was not improper and the recomputed term was less than the prior aggregate term.id: 24329
Prop 47 does not apply to conspiracy convictions.The trial court did not err by denying defendant’s request under Prop 47 to have his prior conspiracy conviction reduced to a misdemeanor. Penal Code section 1170.18 specifies the provisions that qualify for Prop 47 relief and it does not include Penal Code section 182, the conspiracy statute. id: 24255
Prop 47 does not require that excess custody credits be used to reduce the one year misdemeanor parole term. Defendant appealed from a Prop 47 order resentencing him to one year in county jail with credit for time served, and the imposition of supervised parole for one year. Contrary to defendant’s claim, Prop 47 does not require excess credits to reduce the one year misdemeanor parole term. The excess custody credits (equivalent to $30 a day) do not satisfy the defendant’s $200 restitution fine, but they do satisfy his $50 drug program fee.id: 24231
Attempted car theft is not among the offenses that can be reduced to misdemeanors under Prop 47 and the scheme does not violate equal protection by including similar offenses. Defendant filed a Prop 47 petition to have his 2012 felony conviction for attempted second degree burglary of a vehicle reduced to a misdemeanor. However, attempted auto burglary is not among the offenses that can be reduced to misdemeanors under Prop 47. There was no equal protection violation even though a vehicle theft involving a loss of less than $950 is among the offenses included under Prop 47, as the Legislature can rationally extend misdemeanor punishment to some nonviolent offenses but not others. id: 24406
The trial court lacked the authority to redesignate the offense as failure to appear on a pending misdemeanor after Prop 47.Defendant was charged with failure to appear on a felony charge of possessing methamphetamine. Based on Prop 47, the trial court later amended the charge to failure to appear on a misdemeanor. However, the felony status of the offense at the time charges were filed remained uncharged notwithstanding the enactment of Prop 47, and the trial court lacked the authority to redesignate the offense as a failure to appear on a misdemeanor. The trial court will have discretion on remand to reduce the offense to a misdemeanor under section 17.id: 24250
Defendant seeking Prop 47 relief has the burden of showing the value of the goods taken did not exceed $950.Defendant filed a petition for resentencing of five counts of second degree burglary pursuant to Prop 47. He argued that as to two of the counts, the record did not show the loss exceeded $950, which made them misdemeanors. However, defendant had the burden under Penal Code section 1170.18 to show the property loss in each count did not exceed $950 within the new definition of shoplifting. His blanket request for resentencing on all counts was fatally defective, and his petition was denied without prejudice to later consideration of a properly filed petition.id: 24251
Defendant’s claim that Prop 47 compels the striking of his prior prison term enhancement was premature as he needed to first file an application to have the offense designated as a misdemeanor in the trial court.Defendant argued that his 2009 felony conviction for petty theft with a prior would be a misdemeanor if Prop 47 had been in effect at the time of that offense, and therefore it could not form the basis for an enhancement under Penal Code section 667.5, subd.(b). However, defendant’s claim was premature and he had to first file an application in the court of conviction under section 1170.18, subd.(f) to have his 2009 conviction designated as a misdemeanor. id: 24211
Defendant was not entitled to retroactive application of Prop 47's reduced penalty provisions. Defendant argued his felony drug possession conviction had to be reduced to a misdemeanor because Prop 47 was passed and took effect before his case became final. However, Prop 47 is not retroactive and the court properly refused to reduce defendant’s conviction to a misdemeanor. Defendant may file a petition for recall of his sentence pursuant to Penal Code section 1170.18, subd. (a), and his conviction may be reduced under that procedure.id: 24220
Prop 47 did not require the FTA to be reduced to a misdemeanor after the court reduced the underlying drug felony to a misdemeanor.When a person fails to appear after OR release pending a felony charge, a charged FTA is a felony, but when the underlying charge is a misdemeanor, the FTA is a misdemeanor. Defendant was released OR on a felony drug charge and was convicted of the drug and felony FTA charges. Defendant filed a Prop 47 petition and the drug charge was reduced to a misdemeanor. The trial court did not err by refusing to also reduce the FTA because the outcome of the drug crime was irrelevant to the degree of the FTA crime and nothing in Prop 47 changed that.id: 24221
To obtain a Prop 47 sentencing reduction, a defendant must file a petition for recall of sentence in the trial court. Defendant pled guilty to felony drug possession and was sentenced to 32 months in prison. The voters then approved Prop 47, which reclassified drug possession as a misdemeanor and created a procedure for those serving felony prison sentences. Defendant sought a reversal and remand for Prop 47 resentencing. However, Penal Code section 1170.18 provides that Prop 47 petitions be filed in the superior court once the judgment is final.id: 24162
Defendant was not entitled to retroactive application of Prop 47.Defendant was convicted of felony drug possession. She argued that because Prop 47 became effective while her case was not final, she was automatically entitled to have her conviction reduced to a misdemeanor. However, defendant was not entitled to the retroactive application of Prop 47. To be considered for resentencing, she must utilize the procedure specified in Penal Code section 1170.18.id: 24167
Prop 47 provides that the trial court may order one year of supervised parole without considering presentencing custody credits.Defendant argued the trial court erred at the Prop 47 resentencing by ordering supervised parole because his presentence credits exceeded the one year parole supervision term. However, Prop 47 allows the court, in it discretion, to order one year of supervised parole without consideration of presentence custody credits.id: 24129
Defendant was subject to a parole period where he filed a Prop 47 petition while on PRCS but his excess custody credits could be used to reduce the parole term.Defendant filed a Prop 47 petition for his drug possession offense after he had been released to postrelease community supervision (PRCS) for three years. Because he was still serving a felony sentence at the time of his petition he was subject to a one year parole term after completing the misdemeanor sentence. However, his excess custody credits should reduce his parole period and fines.id: 24157
A defendant must apply for Prop 47 relief in the trial court and the court of appeal cannot reduce the felonies to misdemeanors. Following Proposition 47, there are circumstances under which a defendant may have his felony convictions reduced to misdemeanors if he doesn’t have a disqualifying prior conviction. However, the application must be filed in the trial court and the court of appeal cannot reduce the felony convictions to misdemeanors.id: 24104
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850