Reclassification as a Means for Integration: The Positives of Prop 47


If you are in jail, imagine having your prior felony reclassified as a misdemeanor so that you no longer face six years in prison for stealing $10 worth of merchandise (anecdote to be shared below). Or, if you are released in society, imagine having your criminal record adjusted so you are no longer barred from receiving federal welfare, student grants, or medical care. (PDF pages 9-10). You also are no longer excluded from employment in care facilities, including child-care jobs, and you might no longer face automatic disqualification if potential employers discover your conviction records. (Although technically it is illegal for an employer to discriminate against an individual based on an individual’s criminal record, it certainly still happens). Further, if you are an undocumented immigrant, a parent, and facing deportation, your adjusted criminal record may qualify you for protection under Deferred Action for Parental Accountability (DAPA). (PDF page 5). Also, if you are undocumented, facing deportation, and entered the United States before you were sixteen, your adjusted criminal record may qualify you for protection under Deferred Action for Childhood Arrivals (DACA). (PDF page 5).

All four groups of people described above did not have these freedoms or protections prior to Prop 47’s passage. In addition to reducing prison and jail populations along with infrastructural costs, Prop 47 strove to change certain individuals’ felony records, improving the social and financial status of these individuals who had previously committed non-violent drug possession or petty theft crimes. Reclassification is not instantaneous, but it helps nonviolent offenders receive the financial support and employment opportunities necessary to become more fully integrated in society.

How It Works

California penal code section 1170.18 (f) explains that each individual must file a petition with the trial court where they were originally sentenced. Although individuals in custody would need defense attorneys or public defenders to assist them, a person out of custody may file paperwork on their own with the courthouse clerk. If an individual’s prior felony was a theft, the burden is on the individual to show that the property stolen was valued at $950 or less. People v. Sherow, 239 Cal. App. 4th 375 (2015).

All petitions are reviewed at a hearing. Typically, each individual’s petition will be granted easily so there will be no need to appear in court. However, a prosecutor might argue that an individual’s criminal record suggests that the individual still a public safety risk and that his or her prior felony should not be reclassified. In these instances, it is helpful, and sometimes crucial, for the petitioning individual and his or her attorney to be present at the hearing.

Individuals have until November 4, 2018 to petition for reclassification. Cal. Penal Code §1170.18 (j). Late petitions may be reviewed only if the individual can show he had “good cause” for his delay. Even if a person’s felony is reclassified as a misdemeanor, that individual is still banned from possessing a firearm. Cal. Penal Code §1170.18 (k). Most importantly, individuals with prior violent felonies, such as aggravated burglary or a sex crime, are excluded from having non-violent felonies reclassified into misdemeanors. Cal. Penal Code §1170.18 (i).

What It Means for Individuals

Prior to Prop 47, people with nonviolent felony convictions faced “collateral consequences,” or additional civic punishment designed to exclude these individuals from government benefits and civic society membership. Denying federal benefits is an especially punitive way to respond to a person’s felony drug conviction. An individual who is incarcerated for a felony may be denied Social Security or monthly disability payments. A student may forfeit federal student aid, or FAFSA, which can only be regained if the student attends an accredited drug rehabilitation program and passes two random drug tests. Congress also banned individuals with drug felonies from receiving Temporary Assistance for Needy Families (TANF) or support from the Supplemental Nutrition Assistance Program (SNAP). This ban especially harms low-income single mothers. States have the option of adopting the ban.

Fortunately, California is less punitive than the federal rules. As of April 5, 2015, five months after Prop 47’s passage, California eliminated its drug felony restrictions on a person’s ability to receive TANF or SNAP (called CalFresh in California). (PDF page 2). Therefore, assuming a single mother cannot be reclassified under Prop 47 due to her prior violent felony, she still may be eligible for TANF or CalFresh.

Additionally in California, convicted felons are not considered qualified to serve on juries. However, contrary to common belief, individuals with a felony record can still vote. A person is unable to vote only if that person is currently incarcerated.

What it Means for Courts:

Prior to Prop 47, defense attorneys would spend large amounts of time and, in the case of public defenders, tax dollars trying to reduce felony charges into misdemeanors or trying to strike previous nonviolent felonies from the individual’s record so that individual would not face an unnecessary lengthy prison time. A Santa Clara County public defender shared an extreme pre-Prop 47 story in which a client, who had stolen $10 worth of merchandise, was being charged with felony theft due to a 30 to 40 year-old first-degree burglary conviction. First-degree burglary is considered a “violent felony” under California Penal Code section 667.5 (c)(21) and is therefore considered a “strike” against an individual. Strikes make an individual vulnerable to sentence enhancement. If convicted, her client could have faced up to six years in prison. She estimated that the trial cost between $50k to $70k to cover her time, the district attorney, paralegals, the judge, the sheriff deputy, and the courtroom clerk.

Long incarceration periods often result in homelessness and joblessness. Now, not only has Prop 47 decreased the maximum penalty for nonviolent drug possession and petty theft (up to 364 days in jail), it may limit the severity of an individual’s criminal record. This way, long prison sentences and the social pressures that follow can be avoided.

Remaining questions:

Among the eight crimes that Prop 47 reclassified, the property crimes include petty theft, receiving stolen property and forging/writing bad checks when the amount involved is $950 or less. However, contrary to an earlier post, automobile theft of “junkie cars” valued at $950 or less were not explicitly listed as one of Prop 47’s reclassified crimes. In fact, the California Courts of Appeal are split as to whether car theft can be reclassified as a misdemeanor regardless of the car’s minimal value. The California Supreme Court has granted certiorari, or review, of this issue. People v. Peacock, 365 P.3d 343 (Cal. 2016).

Closing remarks:

Prop 47 can transform individuals and improve communities. Jesus Catarino, a man in recovery and key provider for his severely disabled daughter, has been transformed from “community liability to asset” thanks to having his prior felony reclassified as a misdemeanor under Prop 47. He is just one of many individuals who now have greater access to employment, including licensing possibilities, and is now more capable of supporting his family. As the benefits of prop 47 continuing to unfold, California will hopefully see more individuals gaining financial and social equality as the label “felon” is removed. Our society will undoubtedly benefit from increasing the ability of non-violent individuals to sustain themselves and contribute to their communities.