Prop 47

Prop 47, or more formally referred to as Proposition 47 or The Safe Neighborhoods and Schools Act, was a ballot measure passed by the voters of California on November 4, 2014. Prop 47 became effective November 5, 2014. (Cal. Const. , art. II, § 20, subd. (a); People v. Diaz (2015) 238 Cal.App.4th 1323, 1328.)

PC1170.18 issues

PC667.5 +1-year prison priors

If a person goes to prison on a felony, and has that felony subsequently reduced to a misdemeanor under Prop 47, that now-misdemeanor conviction can still be used as a +1-year prison prior sentence enhancement under PC667.5. (People v. Carrea (Feb. 11, 2016, D068246) ___ Cal.App.4th ___; People v. Ruff (Feb. 10, 2016, F068131) ___ Cal.App.4th ___; People v. Valenzuela (Feb. 3, 2016, D066907) ___ Cal.App.4th ___.)

Felony sentence enhancements

If a felony with a PC12022.1 on-bail enhancement is reduced to a misdemeanor under Prop 47, the PC12022.1 enhancement disappears. (People v. Buycks (2015) 241 Cal.App.4th 519, review granted Jan. 20, 2016, S231765.)

Form of petition or application

A person on parole or PRCS is considered to be currently serving a sentence and must petition under 1170.18(a). (People v. Morales (2015) 238 Cal.App.4th 42, review granted Aug. 26, 2015, S228030.)

Burden of proof

The burden of proof is on the petitioner/applicant to prove eligibility to reduce a felony to a misdemeanor under Prop 47. Several court decisions requires the petitioner/applicant to meet this burden first before deciding the matter. (People v. Perkins (2016) 244 Cal.App.4th 129 ["The defendant must attach information or evidence necessary to enable the court to determine eligibility."]; People v. Rivas-Colon (2015) 241 Cal.App.4th 444; People v. Sherow (2015) 239 Cal.App.4th 875 ["A proper petition could certainly contain at least [defendant's] testimony about the nature of the items taken. If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination."].)

Problematic is that courts may not have a hearing on a Prop 47 matter, and live testimony may not be what is before the court. Perkins lists what type of evidence is expected: "In any new petition, defendant should describe the stolen property and attach some evidence, whether a declaration, court documents, record citations, or other probative evidence showing he is eligible for relief."

The court may consider any facts the parties clearly agree to, as long as such facts only augment, and do not contradict or otherwise detract from, the record of conviction. (People v. Triplett (Feb. 8, 2016, C078492) ___ Cal.App.4th ___, petn. for review pending, petn. filed Mar. 21, 2016.)

Excess custody credits

Excess custody credits reduce the one-year parole after PC1170.18(a) re-sentencing. (People v. Morales (2015) 238 Cal.App.4th 42, review granted Aug. 26, 2015, S228030.)

Excess custody credits does not reduce the one-year parole after PC1170.18(a) re-sentencing. (People v. Hickman (2015) 237 Cal.App.4th 984, review granted, Aug. 26, 2015, S227964.)

Scope of PC490.2

PC490.2 declared all thefts under $950 to be misdemeanors. There has been much litigation over what is considered a theft and therefore covered by PC490.2 and by Prop 47.

Code	Crime	PC490.2 applies?	Citation	Notes
PC182	Conspiracy to commit theft	No	People v. Segura (2015) 239 Cal.App.4th 1282, review den., S229565.
PC484e	Theft of access card	Yes	People v. Thompson (2015) 243 Cal.App.4th 413, review granted Mar. 9, 2016, S232212 People v. Romanowski (2015) 242 Cal.App.4th 151, review granted Jan. 20, 2016, S231405	Value of access card account information is probably under $950.
PC484e	Theft of access card	No	People v. King (2015) 242 Cal.App.4th 1312, review granted Feb. 24, 2016, S231888 People v. Cuen (2015) 241 Cal.App.4th 1227, review granted Jan. 20, 2016, S231107 People v. Grayson (2015) 241 Cal.App.4th 454, review granted Jan. 20, 2016, S231757
PC496d	Receiving a stolen car	No	People v. Nichols (Feb. 3, 2016, H041979) ___ Cal.App.4th ___, petn. for review pending, petn. filed Mar. 15, 2016, S233055 People v. Orozco (2016) 244 Cal.App.4th 65, rehg. granted Feb. 8, 2016) People v. Garness (2016) 241 Cal.App.4th 1370, review granted Jan. 27, 2016, S231031
PC664/459	Attempted auto burglary	No	People v. Acosta (2015) 242 Cal.App.4th 521	Burglary isn't theft
VC10851	Joyriding	Yes	People v. Gomez (2015) 243 Cal.App.4th 319, rehg. granted, sub. opn not pub. People v. Ortiz (2016) 243 Cal.App.4th 854, review granted Mar. 16, 2016, S232344
VC10851	Joyriding	No	People v. Solis (Mar. 23, 2016, B262149) ___ Cal.App.4th ___ People v. Orozco (2016) 244 Cal.App.4th 65, rehg. granted Feb. 8, 2016. People v. Haywood (2015) 243 Cal.App.4th 515, review granted Mar. 9, 2016, S232250 People v. Page (2015) 241 Cal.App.4th 714, review granted Jan. 27, 2016, S230793

Affected crimes

Theft-related offenses

Forgery

To determine if above or below $950 threshold, each individual check is evaluated on its own and not in the aggregate. (People v. Hoffman (2015) 241 Cal.App.4th 1304.)

Insufficient funds

To determine if above or below $950 threshold, the aggregate value of checks is used.

Burglary and Shoplifting

The new crime of shoplifting is carved out from burglary. Shoplifting is entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950. (PC459.5(a).) If chargeable as shoplifting, it cannot be charged as burglary or theft. (PC459.5(b).)

A currently good case says entering to pass a bad check under a PC459 is now considered a shoplift under PC459.5. However, since the Supreme Court is already considering this issue in another case, expect the Court of Appeal case to be depublished. (People v. Triplett (Feb. 8, 2016, C078492) ___ Cal.App.4th ___, petn. for review pending, petn. filed Mar. 21, 2016; contra, People v. Gonzales (2015) 242 Cal.App.4th 35, review granted, Feb. 17, 2016, S231171.)

A public high school is not a commercial establishment. (In re J.L. (2015) 242 Cal.App.4th 1108.)

Commercial establishment is broader than retail establishment. (People v. Vargas (2016) 243 Cal.App.4th 1416, review granted Mar. 30, 2016.)

County-specific information

San Diego County

Local court form

Text of Prop 47

Section 1. Title.

This act shall be known as “the Safe Neighborhoods and Schools Act.”

Section 2. Findings and Declarations.

The people of the State of California find and declare as follows:
The people enact the Safe Neighborhoods and Schools Act to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K–12 schools, victim services, and mental health and drug treatment. This act ensures that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed.

Section 3. Purpose and Intent.

In enacting this act, it is the purpose and intent of the people of the State of California to:

(1) Ensure that people convicted of murder, rape, and child molestation will not benefit from this act.

(2) Create the Safe Neighborhoods and Schools Fund, with 25 percent of the funds to be provided to the State Department of Education for crime prevention and support programs in K–12 schools, 10 percent of the funds for trauma recovery services for crime victims, and 65 percent of the funds for mental health and substance abuse treatment programs to reduce recidivism of people in the justice system.

(3) Require misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.

(4) Authorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors

(5) Require a thorough review of criminal history and risk assessment of any individuals before resentencing to ensure that they do not pose a risk to public safety.

(6) This measure will save significant state corrections dollars on an annual basis. Preliminary estimates range from $150 million to $250 million per year. This measure will increase investments in programs that reduce crime and improve public safety, such as prevention programs in K–12 schools, victim services, and mental health and drug treatment, which will reduce future expenditures for corrections.

Section 4.

Chapter 33 (commencing with Section 7599) is added to Division 7 of Title 1 of the Government Code, to read:

Government Code section 7599.

(a) A fund to be known as the “Safe Neighborhoods and Schools Fund” is hereby created within the State Treasury and, notwithstanding Section 13340 of the Government Code, is continuously appropriated without regard to fiscal year for carrying out the purposes of this chapter.

(b) For purposes of the calculations required by Section 8 of Article XVI of the California Constitution, funds transferred to the Safe Neighborhoods and Schools Fund shall be considered General Fund revenues which may be appropriated pursuant to Article XIII B.

Government Code section 7599.1. Funding Appropriations.

(a) On or before July 31, 2016, and on or before July 31 of each fiscal year thereafter, the Director of Finance shall calculate the savings that accrued to the state from the implementation of the act adding this chapter (“this act”) during the fiscal year ending June 30, as compared to the fiscal year preceding the enactment of this act. In making the calculation required by this subdivision, the Director of Finance shall use actual data or best available estimates where actual data is not available. The calculation shall be final and shall not be adjusted for any subsequent changes in the underlying data. The Director of Finance shall certify the results of the calculation to the Controller no later than August 1 of each fiscal year.

(b) Before August 15, 2016, and before August 15 of each fiscal year thereafter, the Controller shall transfer from the General Fund to the Safe Neighborhoods and Schools Fund the total amount calculated pursuant to subdivision (a).

(c) Moneys in the Safe Neighborhoods and Schools Fund shall be continuously appropriated for the purposes of this act. Funds transferred to the Safe Neighborhoods and Schools Fund shall be used exclusively for the purposes of this act and shall not be subject to appropriation or transfer by the Legislature for any other purpose. The funds in the Safe Neighborhoods and Schools Fund may be used without regard to fiscal year.

Government Code section 7599.2. Distribution of Moneys from the Safe Neighborhood and Schools Funds.

(a) By August 15 of each fiscal year beginning in 2016, the Controller shall disburse moneys deposited in the Safe Neighborhoods and Schools Fund as follows:

(1) Twenty‑five percent to the State Department of Education, to administer a grant program to public agencies aimed at improving outcomes for public school pupils in kindergarten and grades 1 to 12, inclusive, by reducing truancy and supporting students who are at risk of dropping out of school or are victims of crime.

(2) Ten percent to the California Victim Compensation and Government Claims Board, to make grants to trauma recovery centers to provide services to victims of crime pursuant to Section 13963.1 of the Government Code.

(3) Sixty‑five percent to the Board of State and Community Corrections, to administer a grant program to public agencies aimed at supporting mental health treatment, substance abuse treatment, and diversion programs for people in the criminal justice system, with an emphasis on programs that reduce recidivism of people convicted of less serious crimes, such as those covered by this measure, and those who have substance abuse and mental health problems.

(b) For each program set forth in paragraphs (1) to (3), inclusive, of subdivision (a), the agency responsible for administering the programs shall not spend more than 5 percent of the total funds it receives from the Safe Neighborhoods and Schools Fund on an annual basis for administrative costs.

(c) Every two years, the Controller shall conduct an audit of the grant programs operated by the agencies specified in paragraphs (1) to (3), inclusive, of subdivision (a) to ensure the funds are disbursed and expended solely according to this chapter and shall report his or her findings to the Legislature and the public.

(d) Any costs incurred by the Controller and the Director of Finance in connection with the administration of the Safe Neighborhoods and Schools Fund, including the costs of the calculation required by Section 7599.1 and the audit required by subdivision (c), as determined by the Director of Finance, shall be deducted from the Safe Neighborhoods and Schools Fund before the funds are disbursed pursuant to subdivision (a).

(e) The funding established pursuant to this act shall be used to expand programs for public school pupils in kindergarten and grades 1 to 12, inclusive, victims of crime, and mental health and substance abuse treatment and diversion programs for people in the criminal justice system. These funds shall not be used to supplant existing state or local funds utilized for these purposes.

(f) Local agencies shall not be obligated to provide programs or levels of service described in this chapter above the level for which funding has been provided.

Section 5.

Section 495.5 is added to the Penal Code, to read:

Penal Code section 459.5.

(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.

(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.

Section 6

Section 473 of the Penal Code is amended to read:

Penal Code section 473

(a) Forgery is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

(b) Notwithstanding subdivision (a), any person who is guilty of forgery relating to a check, bond, bank bill, note, cashier’s check, traveler’s check, or money order, where the value of the check, bond, bank bill, note, cashier’s check, traveler’s check, or money order does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. This subdivision shall not be applicable to any person who is convicted both of forgery and of identity theft, as defined in Section 530.5.

Section 7

Section 476a of the Penal Code is amended to read:

Penal Code section 476a

(a) Any person who, for himself or herself, as the agent or representative of another, or as an officer of a corporation, willfully, with intent to defraud, makes or draws or utters or delivers a check, draft, or order upon a bank or depositary, a person, a firm, or a corporation, for the payment of money, knowing at the time of that making, drawing, uttering, or delivering that the maker or drawer or the corporation has not sufficient funds in, or credit with the bank or depositary, person, firm, or corporation, for the payment of that check, draft, or order and all other checks, drafts, or orders upon funds then outstanding, in full upon its presentation, although no express representation is made with reference thereto, is punishable by imprisonment in a county jail for not more than one year, or pursuant to subdivision (h) of Section 1170.

(b)However, if the total amount of all checks, drafts, or orders that the defendant is charged with and convicted of making, drawing, or uttering does not exceed four hundred fifty dollars ($450) nine hundred fifty dollars ($950), the offense is punishable only by imprisonment in the county jail for not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. This subdivision shall not be applicable if the defendant has previously been convicted of a three or more violation violations of Section 470, 475, or 476, or of this section, or of the crime of petty theft in a case in which defendant’s offense was a violation also of Section 470, 475, or 476 or of this section or if the defendant has previously been convicted of any offense under the laws of any other state or of the United States which, if committed in this state, would have been punishable as a violation of Section 470, 475 or 476 or of this section or if he has been so convicted of the crime of petty theft in a case in which, if defendant’s offense had been committed in this state, it would have been a violation also of Section 470, 475, or 476, or of this section

(c) Where the check, draft, or order is protested on the ground of insufficiency of funds or credit, the notice of protest shall be admissible as proof of presentation, nonpayment, and protest and shall be presumptive evidence of knowledge of insufficiency of funds or credit with the bank or depositary, person, firm, or corporation.

(d) In any prosecution under this section involving two or more checks, drafts, or orders, it shall constitute prima facie evidence of the identity of the drawer of a check, draft, or order if both of the following occur:

(1) When the payee accepts the check, draft, or order from the drawer, he or she obtains from the drawer the following information: name and residence of the drawer, business or mailing address, either a valid driver’s license number or Department of Motor Vehicles identification card number, and the drawer’s home or work phone number or place of employment. That information may be recorded on the check, draft, or order itself or may be retained on file by the payee and referred to on the check, draft, or order by identifying number or other similar means.

(2) The person receiving the check, draft, or order witnesses the drawer’s signature or endorsement, and, as evidence of that, initials the check, draft, or order at the time of receipt.

(e) The word “credit” as used herein shall be construed to mean an arrangement or understanding with the bank or depositary, person, firm, or corporation for the payment of a check, draft, or order.

(f) If any of the preceding paragraphs, or parts thereof, shall be found unconstitutional or invalid, the remainder of this section shall not thereby be invalidated, but shall remain in full force and effect

(g) A sheriff’s department, police department, or other law enforcement agency may collect a fee from the defendant for investigation, collection, and processing of checks referred to their agency for investigation of alleged violations of this section or Section 476.

(h) The amount of the fee shall not exceed twenty-five dollars ($25) for each bad check, in addition to the amount of any bank charges incurred by the victim as a result of the alleged offense. If the sheriff’s department, police department, or other law enforcement agency collects a fee for bank charges incurred by the victim pursuant to this section, that fee shall be paid to the victim for any bank fees the victim may have been assessed. In no event shall reimbursement of the bank charge to the victim pursuant to this section exceed ten dollars ($10) per check.

Section 8

Section 490.2 is added to the Penal Code, to read:

Penal Code section 490.2

(a) Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.

(b) This section shall not be applicable to any theft that may be charged as an infraction pursuant to any other provision of law.

Section 9

Section 496 of the Penal Code is amended to read:

Penal Code section 496

(a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the district attorney or the grand jury determines that this action would be in the interests of justice, the district attorney or the grand jury, as the case may be, may, if the value of the property does not exceed nine hundred fifty dollars ($950), specify in the accusatory pleading that the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.

A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property

(b) Every swap meet vendor, as defined in Section 21661 of the Business and Professions Code, and every person whose principal business is dealing in, or collecting, merchandise or personal property, and every agent, employee, or representative of that person, who buys or receives any property of a value in excess of nine hundredfifty dollars ($950) that has been stolen or obtained in any manner constituting theft or extortion, under circumstances that should cause the person, agent, employee, or representative to make reasonable inquiry to ascertain that the person from whom the property was bought or received had the legal right to sell or deliver it, without making a reasonable inquiry, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170

Every swap meet vendor, as defined in Section 21661 of the Business and Professions Code, and every person whose principal business is dealing in, or collecting, merchandise or personal property, and every agent, employee, or representative of that person, who buys or receives any property of a value of nine hundred fifty dollars ($950) or less that has been stolen or obtained in any manner constituting theft or extortion, under circumstances that should cause the person, agent, employee, or representative to make reasonable inquiry to ascertain that the person from whom the property was bought or received had the legal right to sell or deliver it, without making a reasonable inquiry, shall be guilty of a misdemeanor.

(c) Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.

(d) Notwithstanding Section 664, any attempt to commit any act prohibited by this section, except an offense specified in the accusatory pleading as a misdemeanor, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

Section 10

Section 666 is amended to read:

Penal Code section 666

(a) Notwithstanding Section 490, every person who, having been convicted three or more times of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, and who is subsequently convicted of petty theft, is punishable by imprisonment in a county jail not exceeding one year, or imprisonment pursuant to subdivision (h) of Section 1170.

(b) (a) Notwithstanding Section 490, any person described in subdivision (b) paragraph (1) who, having been convicted of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496, and having served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, and who is subsequently convicted of petty theft, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.

(1) (b) This subdivision Subdivision (a) shall apply to any person who is required to register pursuant to the Sex Offender Registration Act, or who has a prior violent or serious felony conviction, as specified in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667, or has a conviction pursuant to subdivision (d) or (e) of Section 368.

(2) (c) This subdivision section shall not be construed to preclude prosecution or punishment pursuant to subdivisions (b) to (i), inclusive, of Section 667, or Section 1170.12.

Section 11

Section 11350 of the Health and Safety Code is amended to read:

Health and Safety Code section 11350

(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b), or (c), (e), or paragraph (1) of subdivision (f) of

External references

• Voter Information Guide
• Couzens and Bigelow on Prop 47
• Couzen's FAQ on Prop 47