Proposition 47 Effect On Prior Convictions

Penal Code section 1170.18

With the passage of Proposition 47, certain low-level, nonviolent felonies can now be changed to misdemeanors on old criminal records. If you or someone you know has a prior criminal record with a felony record for any of the following crimes, you may qualify to remove the felony from your record and change it to a misdemeanor:

  • Commercial Burglary / Shoplifting of $950 or less of a Store during Business Hours [PC § 459]
  • Forgery of $950 or less [PC § 470-476]
  • Grand Theft of $950 or less [PC § 487]
  • Petty Theft of $950 or less [PC §§ 484, 484/666]
  • Possession of Methamphetamine [HS § 11377]
  • Possession of Controlled Substance [HS § 11350]
  • Possession of Concentrated Cannabis [HS § 11357(a)]
  • Receiving Stolen Property of $950 or less [PC § 496]
  • Writing a Bad Checks of $950 or less [PC § 476a]

If you have a previous conviction for crimes such as rape, murder or child molestation or are in the sex offender registry, you will not be eligible to get these felonies reclassified.

Reducing Felony Convictions To Misdemeanors

Penal Code section 17(b)

Penal Code 17(b) permits a defendant to ask the court to declare a prior felony a misdemeanor. This determination makes a felony conviction a misdemeanor for all purposes going forward.

  • Employment: That is, you may answer “no” to a question asking whether you have been convicted of a felony or have a felony on your record, and you do not lose (or you regain) voting or gun rights.
  • Voting: Where one’s voting rights are revoked by a judgment of a felony, reduction to a misdemeanor will restore voting rights.
  • Firearms: A reduction of a felony conviction to a misdemeanor precludes its later use as predicate offense for possession of a firearm by a convicted felon.

An application to reduce may be made at any time, even after probation is terminated, provided that conditions for reduction are satisfied. Only “wobblers” may be reduced. A crime that is a “straight felony” may not be reduced under Penal Code 17(b).

Trial courts have broad authority in ruling on motions to reduce a crime to a misdemeanor. A trial court may reduce a felony to misdemeanor, even after original grant of probation, if a formal sentence (i.e. a state prison sentence) has not been imposed; but the court lacks authority to do so when sentence has been imposed and suspended. That is to say, a defendant who receives a suspended sentence to state prison may not later reduce the conviction to a misdemeanor even though he or she never actually went to state prison.

Expungement Of Prior Convictions

Penal Code section 1203.4

The first thing that someone who wants to apply for an expungement needs to understand is that if your petition is granted under Penal Code 1203.4, your case is not sealed. A criminal record is not actually “expunged” under this statute. That term implies complete erasure, as if the case had never occurred. A more proper term is “dismissal”. The conviction remains on your record for many purposes, including sex offender registration and immigration consequences. What the statute provides is, except as elsewhere stated, the defendant is ‘released from all penalties and disabilities resulting from the offense’. There are numerous limitations to this relief.

An adult who was granted probation, completed all the terms of probation, and is no longer on probation, is eligible for relief under this statute. He or she must not be on probation, or serving a sentence, for any other offense, anywhere.

If you were denied probation, you can still obtain an expungement. You still cannot be on probation or serving a sentence for any other case. Applicants must wait for one year after their conviction before applying for expungement.

If your criminal case was reduced to an infraction, you are now eligible for an expungement under Penal Code section 1203.4a.

What an Expungement will do for you:

  • Result in a new entry in the court record showing the dismissal of the case.
  • Allow you to answer on many, but not all, job applications that you have not been convicted. If, however, you are applying for a government job or a job which requires a government-issued license, certificate, or permit, or a job which involves a security clearance, the conviction will be discovered; in such cases, you should disclose the initial conviction and its later expungement.
  • Prevent use of the conviction to impeach you if you testify as a witness, unless you are being tried for a subsequent offense.
  • If the conviction was for a felony, expungement is the first step in obtaining a pardon.

What an Expungement will NOT do for you:

  • Remove the conviction from your “Rap Sheet” – California and FBI criminal history records will still show the conviction and the later dismissal “per PC 1203.4”
  • Reinstate the right to possess firearms. (You must petition the court pursuant to Penal Code section 17(b) as discussed above).
  • Remove the requirement to register as a sex offender per PC290. If the expungement is granted, registrants must then complete and file paperwork requesting a Certificate of Rehabilitation, when eligible. A Certificate of Rehabilitation will relieve specified sex offenders from further registration. This is true for both felony and misdemeanor convictions.
  • Allow you to omit the conviction from applications for government issued licenses.
  • Seal or otherwise remove the court case file from public inspection – anyone who knows where to look will be able to find the court case file (probation reports are in confidential files and are not subject to public inspection 90 days after sentencing).
  • Prevent the conviction from being used as a “prior” or “strike prior” to increase punishment on a subsequent conviction.
  • Prevent the conviction from being used for impeachment purposes on a subsequent offense.
  • Prevent the conviction from being considered and used to refuse or revoke government licenses and permits such as real estate sales licenses, teaching credentials, bus drivers licenses, security guard certificates, etc.; however, the expungement may reduce the weight given the conviction by the licensing agency.
  • Prevent the conviction from being used by INS for removal and exclusion purposes.

The following driving violations are discretionary and the court may not grant an Expungement:

  • Failure to Stop After an Accident [VC §§ 20001, 20002]
  • Driving Under the Influence [VC §§ 23152, 23153]
  • Reckless Driving [VC §§ 23103, 23103.5]
  • Vehicular Manslaughter [PC §§ 191.5(b), 192(c)]
  • Felony Evading [VC §§ 2800.2, 2800.3]
  • Driving Across Divided Highway [VC §§ 21651(b)]
  • Speeding in Excess of 100 mph [VC 22348(b)]
  • Speed Racing [VC §§ 23109, 23109.1]
  • Driving on a Suspended License [VC §§ 14601, 14601.1, 14601.2, 14601.3, 14601.5]

An Expungement is not possible for convictions of Penal Code sections 286(c), 288(c), 288a, 288.5, 289(j), or 261.5(d).

Dismissal Of Juvenile Prior Adjudications

Welfare & Institutions Code section 782

A judge of the juvenile court in which a petition was filed may dismiss the petition or may set aside the findings and dismiss the petition if the court finds that the interests of justice and the welfare of the minor require that dismissal, or if it finds that the minor is not in need of treatment or rehabilitation. The court has jurisdiction to order dismissal or setting aside of the findings and dismissal regardless of whether the minor is, at the time of the order, a ward or dependent child of the court.

One benefit of getting a dismissal of a prior juvenile adjudication under Welfare & Institutions Code section 782 is that prior adjudication cannot be used as a prior “Strike” in future cases. People v. Haro (2013) 221 Cal.App.4th 718. This does not hold true for felonies expunged under Penal Code section 1203.4.