Under Prop. 47 a reduction in offense level (e.g., a reduction from felony to misdemeanor) can be made retroactively. There is good immigration case law from the Ninth Circuit and BIA that if the offense level is changed after the date of conviction, e.g., a reduction from a felony to a misdemeanor–even years later–this reduction must be recognized by immigration courts.
La Farga v. INS, 170 F.3d 1213 (9th Cir. 1999) Thus, it is common practice to reduce a wobbler conviction that was a felony, to a misdemeanor to help someone qualify for the petty theft exception to inadmissibilty for CIMT’s.
LATEST PROP 47 ARTICLE from the San Jose Mercury News: Last November, California voters approved Prop 47 which reclassified simple drug possession and low-level theft cases involving a loss valued under $950 from felonies to misdemeanors. Now Bay Area public defenders are reaching out to the thousands of local residents who are either on felony probation or have already served their sentence who can get their felonies reduced under Prop 47. [READ MORE]
For those who have finished their sentence, this might have the following beneficial impacts:
1) Someone with a felony unlawful possession of drug case, could move the court to reduce the charge to a misdemeanor. Assuming that they had no other conviction which made them ineligible and the sentence was under 90 days, then they would be eligible for DACA since unlawful possession of drugs is not a disqualifier but a felony is. On the other hand, any unlawful possession of drugs makes one inadmissible and deportable, so that even if someone now qualified for DACA, they would still be inadmissible to become a lawful permanent resident.
2) Someone with a felony theft type offense covered under Prop 47 who reduces their sentence to a misdemeanor because the value of the property is $950 or less, would also be eligible for DACA provided the sentence was under 90 days and there was no other crime disqualifer since theft is not a significant misdemeanor. Same thing with a reduction of burglary to shoplifting. See also the provisions for writing bad checks and check forgery. I will call these “theft-type” cases.
3) Someone who reduced a theft-type crime to a misdemeanor might now qualify for Temporary Protected Status (limited to nationals of a few countries who entered on certain dates). A person becomes ineligible and subject to termination for 1 felony or 2 misd. convictions.
4) Someone with a reduction to a misdemeanor in a theft-type case might now qualify for admissibility under the petty theft exception if no other CIMT case and 6 months or less sentence.
5) Reduction from a felony to a misdemeanor for a CIMT might avoid the ground of deportabilty for one crime of moral turpitude within five years of admission with a potential one year sentence provided that the Court explicitly stated that it was resentencing under new P.C. 18.5 effective 1/1/15 (wobbler treated as misd has max 364 day sentence). Wait for1/1/15 or after to get this relief.
6) Avoid an aggravated felony by resentencing with 364 days: Immigration courts will recognize a changed sentence as the only sentence. Matter of Song, 23 i&N Dec 173 (BIA 2001). So a permanent resident with a theft type offense covered under Prop 47 who had a felony 1 year sentence-which might make it an aggravated felony–could reduce the felony to a misdemeanor after 1/1/15 and under new P.C. 18.5 (reducing any sentence to 364 days effective 1/1/15 for any wobbler-misd.) try to get the judge to declare the offense a misd. with a 364 day sentence. Arguably, under Estrada, after resentencing to a misd. the court should also apply new P.C. 18.5.
On November 4, 2014, California voters passed Proposition 47, which reduces certain theft and drug possession crimes from a felony to a misdemeanor. The new law also created a procedure by which people who have been convicted of felonies for offenses that would now be misdemeanors can petition to have their convictions reduced.
The crimes that are covered by Proposition 47 are the following:
- Health & Safety Code 11350(a), Possession of a Controlled Substance
- Health & Safety Code 11357(a), Possession of Concentrated Cannabis
- Health & Safety Code 11377(a), Possession of a Controlled Substance
- Penal Code 459, Commercial Burglary (during business hours and less than $950)
- Penal Code 470, Forgery (less than $950)
- Penal code 476a(a), NSF Checks (less than $950)
- Penal Code 487, Grand Theft (less than $950)
- Penal Code 496(a), Possession of Stolen Property (less than $950)
- Penal Code 666/484(a), Petty Theft with Prior Convictions (less than $950)
Excepted entirely from these reductions are people with a prior conviction for the offenses listed in Pen. Code 667(e)(2)(C) or those who were convicted of an offense requiring registration pursuant to Penal 290(c).
If you have a felony conviction for one of the above-listed offenses, now is the time to have that felony reduced to a misdemeanor. Attorney Holden Greens’ Proposition 47 felony reduction service is quick, efficient, and backed by a 100% money back guarantee.There are a number of benefits to having your felony reduced to a misdemeanor. Most importantly, in an application for private employment you can truthfully answer that you have never been convicted of a felony (as long as all felonies have been reduced or dismissed, of course).
You may also be eligible to have your misdemeanor dismissed pursuant to Penal Code 1203.4. Under current California law, private background check companies cannot report dismissed convictions, so once a case has been expunged, it should no longer show up on private background checks.
There are many other benefits of having your California criminal record expunged. This includes: assisting you in obtaining a state license, facilitating travel to Canada and other countries, helping you qualify for certain loans, and increasing the likelihood that you pass residential rental background checks. Perhaps most importantly, an expungement will close the door on the past and help you move forward with your life.
Attorney Holden W. Green Esq. has helped 1,000s of people clean up their criminal records. He has a five start client rating on Yelp, Google and AVVO. Perhaps most importantly, his Proposition 47 petition service is backed by a 100% money back guarantee.
1) Attorney Holden W. Green Esq. will gather information about your case from a variety of sources.
2) Mr. Green will review your case and determine the most effective and most expeditious course of action.
3) In certain cases, a supporting declaration will be prepared for you to review and sign (this way it is not required that you go to court).
4) Mr. Green will prepare the petition along with all supporting exhibits and attachments.
5) A proposed order will be provided to the court.
6) The complete petition is filed with the appropriate court, a hearing is scheduled, and the prosecuting agencies are notified.
7) Mr. Green will follow up with the prosecuting agencies to determine if there is any opposition.
8) Mr. Green will attend the hearing to argue on your behalf and counter any opposition provided by the prosecuting agency’s attorney.
9) Our office will follow up with the court after the hearing to ensure that the clerk has processed the order and notified the Department of Justice.
10) Once the order granting your expungement has been signed by the judge, Mr. Green will obtain a copy of the order and provide you with evidence of the expungement for you to keep with your records.
* Note that because each case is unique and there are some procedural differences for each county in California your case may not follow our process outline exactly.
When does Proposition 47 become law?
Proposition 47 became law on November 5, 2014, the day after it was passed by the voters of California.
Is my felony automatically reduced to a misdemeanor?
No. If you do nothing, your felony will remain a felony. You must petition the court and follow the proper procedure to have your felony reduced.
How long does the process take?
Generally, the process should take about 1-2 months. The procedure will be different in every county. For example, in Orange County, the court is requiring that the District Attorney’s office be given 45 days to respond to a petition under Proposition 47.
I have already had my felony dismissed pursuant to Penal Code 1203.4, am I eligible?
Yes. You are still eligible to reduce your felony to a misdemeanor and you should absolutely do so.
If I served prison time as a result of my felony conviction, am I eligible?
Yes, unless the prior conviction exception applies or if you register pursuant to Penal Code 290.
I was convicted of a felony not covered by Proposition 47, can it be reduced?
That depends. If the felony is a “wobbler” and you were not sentenced to state prison, you may be eligible to reduce your felony to a misdemeanor.
If you have questions about your particular situation, do not hesitate to reach out to us directly. Attorney Holden W. Green Esq. will provide you with a free, no-obligation consultation about your case.
Call us directly at (408) 451-8449 for a FREE 30 MINUTE CONSULTATION an attorney.