Resentencing & Reclassification Under Prop. 47

RESENTENCING under Prop. 47:

If you are currently serving your sentence (“under sentence”) for an offense that qualifies under Prop. 47, and you are NOT excluded by one of the disqualifying convictions, you may be eligible for RESENTENCING.[3323]

Obtain and fill out a Prop. 47 petition

You will need to get the court forms from the clerk at the court where you were convicted. These forms are straightforward and simple to fill out—you just need to fill in information about your conviction (date of conviction, penal code section, and sentence), and check the box indicating that you are currently “under sentence” and requesting to be resentenced. (Sample petitions from SF, LA, and Sacramento Counties are included in APPENDIX GG, on PG. 1074.)

File your Petition and Serve your Court Papers

You will need to file your petition with the court clerk of the court where you were convicted, and then serve (deliver) copies of your court papers on the District Attorney and any other people who are part of the case. (Ask the court clerk who you need to serve with your court papers).

The Judge Reviews Your Petition to See if You are Eligible

After you file your petition, a judge will review it to make sure you are eligible (qualify) for resentencing.[3324] Remember, in order to qualify for resentencing, you must meet all of the following requirements:

    Your conviction must be for one of the qualifying convictions under Prop. 47 (see PG. 971); AND
    You must NOT have any of the disqualifying convictions (see PG. 971);[3325] AND
    You are currently “under sentence” for the qualifying conviction (incarcerated OR on parole or PRCS).

Qualification Hearing—if Requested

    When you petition for resentencing under Prop. 47, you do not automatically get a hearing in front of a judge, but you may request one. If your conviction was for shoplifting, theft, receiving stolen property, or forgery/bad checks, you may want to request a hearing so you can prove to the judge that the value of property involved in your crime was under $950—and therefore qualifies under Prop. 47.
    The DA can also request a hearing to contest (challenge) your petition.
    If there is a hearing on your petition, you should attend if you can. Whether or not you are able to attend, make sure that the judge has as much evidence as you can find to support your request for resentencing, including evidence of rehabilitation, proof of your accomplishments since your conviction, and letters of support. (See APPENDIX N, on PG. 1024 for tips on how to write a letter of support. See APPENDIX O, on PG. 1025 for a sample Letter of Support.)
    If you meet all of the requirements for resentencing, you are entitled to be resentenced UNLESS the judge decides that you pose an “unreasonable risk to public safety.” This means that the judge specifically thinks that if you are released, you will commit one of the violent “super strike” felonies listed in California Penal Code section 667(e)(2)c(iv)).[3326] In making this decision, the judge will consider:
    your complete conviction history including:[3327]
    the type of crime(s) you committed in the past;
    the amount of injury to your victim(s);
    the length of time you spent in prison in the past; AND
    how long ago you committed the crime(s).
    your disciplinary record and record of rehabilitation while you were in prison;
    anything else the judge thinks is relevant.
    You should provide as much evidence as possible that you do not pose any risk to society.

Resentencing

If your conviction is eligible, your criminal history does not disqualify you, and the judge does not think you pose an unreasonable risk to public safety, you are entitled to be resentenced to a misdemeanor sentence. This means that your felony sentence will be reduced to a misdemeanor sentence instead! You will get credit for the time you’ve already served, so if you have already served the equivalent of a misdemeanor sentence, you can be released from custody right away.[3328]

    If you were still in prison at the time of resentencing, the judge will likely put you on parole for one year. However, depending on the facts of your situation, you may be able to convince the judge not to give you parole at all.[3329]
    If you were on parole or PRCS at the time of resentencing, you could be discharged right away (if you have already completed the equivalent of a misdemeanor sentence), or the judge may reduce your supervision to probation.
RECLASSIFICATION under Prop. 47:

If you already completed your sentence (including any parole or probation term) for an offense that qualifies under Prop. 47, and you are NOT excluded by one of the disqualifying convictions, you may be eligible to have your felony RECLASSIFIED as a misdemeanor. Unfortunately, you cannot get back the time that you served for the felony, but you can change your criminal record to show a misdemeanor conviction instead of a felony conviction.

Obtain and fill out your Petition for Reclassification

Just as for resentencing, you will need to fill out and file a petition for reclassification. Most courts use a single form for resentencing and reclassification, which you should get from the clerk at the court where you were convicted. When you fill out the form, you will need to fill in basic information about your conviction (such as the date of conviction, penal code section, and your sentence), and then check the box indicating that you are requesting reclassification.

File your petition and Serve your court papers

File your petition with the clerk of the court where you were convicted, and then serve (deliver) copies of your court papers on the District Attorney and any other people who are part of the case. Ask the court clerk who else you need to serve with your court papers.

Eligibility Determination

Once your petition is filed, a judge will review it to make sure you qualify for reclassification.[3330] The judge will check to see whether your conviction offense qualifies under Prop. 47 (see PG. 971) and whether you have any prior convictions that disqualify you (see PG. 971).[3331] Generally, you will not need to request a hearing for reclassification, however, it is possible that you will need one if you have to prove the value of the property involved in your offense to make sure it qualifies.

If you meet the requirements, the judge MUST reclassify your conviction as a misdemeanor.

  1. 3323

    Cal. Penal Code § 1170.18(a).

  2. 3324

    Cal. Penal Code § 1170.18.

  3. 3325

    Cal. Penal Code § 1170.18.

  4. 3326

    Cal. Penal Code § 1170.18(c).

  5. 3327

    Cal. Penal Code § 1170.18(b)(1).

  6. 3328

    Cal. Penal Code § 1170.18.

  7. 3329

    Cal. Penal Code § 1170.18 (d) (“a person who is resentenced pursuant to subdivision (b)…shall be subject to parole for one year following completion of his or her sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole”).

  8. 3330

    Cal. Penal Code § 1170.18.(f).

  9. 3331

    Cal. Penal Code § 1170.18.