California law defines theft as the stealing or unauthorized taking of money, property, or labor. The basic crime is divided into two categories: grand theft and petty theft. Receiving stolen property is a related crime.
Petty theft is a misdemeanor that is punishable by a maximum jail sentence of 6 months. Grand theft is generally classified as a “wobbler.” A prosecutor has discretion to charge a wobbler as either a felony or a misdemeanor. If charged as a misdemeanor, grand theft carries a maximum sentence of about 1 year. If charged as a felony, the maximum sentence is 3 years.
Proposition 47 reclassified some theft offenses that had been designated as wobblers to misdemeanors. Those crimes can no longer be charged as felonies. The change in the law went into effect when Proposition 47 was passed on November 4, 2014.
The change made by Prop 47 affects pending charges as well as crimes that will be charged in the future. It does not change convictions for which a sentence has already been imposed, but it does give convicted offenders a chance to seek a sentence reduction. This article will explain how Prop 47 changes penalties for California theft offenses. Click here for a full proposition 47 guide that explains penalty changes for various crimes.
The reason for the change
Over a period of decades, the California legislature’s “get tough on crime” mentality caused California prison to swell with an ever-growing population of nonviolent offenders. Federal courts have ordered California to reduce its prison population but the state government moved slowly in its effort to comply with those orders.
Recognizing that the state budget was increasingly strained by the cost of maintaining prisons, taxpayers turned to Prop 47 to force the government to change its approach to crime control. Voters understood that crime prevention is best accomplished by rehabilitating nonviolent offenders, not by locking them up in state prisons. Proposition 47 redirects money to crime prevention programs while reclassifying a number of felonies or wobblers as misdemeanors. In addition to theft, Proposition 47 reclassified certain crimes involving drug possession, forgery, and writing worthless checks.
The reclassification of offenses will, over time, reduce the strain on California’s overcrowded prisons. Offenders who are sentenced for felonies generally serve that sentence in prison if the sentence is longer than one year. By eliminating the possibility of felony penalties for certain nonviolent crimes, Prop 47 will result in fewer offenders being sentenced to prison.
Theft crimes affected by Proposition 47
The classification of three theft crimes was affected by Prop 47. The new law does not change the classification of potentially violent offenses that involve the theft of property. Crimes such as robbery and burglary can still be charged as felonies regardless of the value of any property that is stolen. In addition, some sophisticated theft crimes, such as embezzlement, fraud, and identity theft, are unaffected by Prop 47.
A theft of property of any value can be still be charged as a felony if a firearm is used to commit the crime. In addition, any of the following crimes can still be charged as felonies if the offender was previously convicted of certain violent crimes or is required to register as a sex offender.
Grand theft. As a general rule, California law provides that a theft of money or property worth $950 or less is a petty theft while a theft of money or property worth more than $950 is a grand theft. Before Proposition 47, a few exceptions to that rule classified the theft of certain property of lesser value as grand theft. Those included the theft of:
- An automobile, regardless of value
- A firearm, regardless of value
- Horses and certain farm animals, regardless of value
- Farm crops worth $250 or more
- Any property stolen from a person (such as pickpocketing or purse snatching), regardless of value
Proposition 47 provides that thefts of property worth less than $950 must be regarded as petty thefts and charged as a misdemeanor. In other words, the value of the property, rather than the nature of the property, now determines whether the crime is a wobbler. Only the theft of property worth more than $950 can be charged as a felony. Prosecutors retain the discretion, however, to charge thefts of property worth more than $950 as misdemeanors.
In addition, prior law authorized prosecutors to charge offenders accused of theft with felonies if they had a record of theft-related convictions, regardless of the value of the property they stole. After Prop 47, a prior record of theft convictions will not affect the classification of the crime as a misdemeanor.
Shoplifting. Prior to Proposition 47, California’s expansive definition of burglary included entering a store to commit a grand or petty theft. That law gave prosecutors the option of charging theft from a store as a felony burglary rather than a petty theft.
Proposition 47 creates the offense of shoplifting. It defines shoplifting as entering a commercial business while it is open with the intent to steal (or actually stealing) property worth $950 or less. Shoplifting must be punished as a misdemeanor.
Receiving stolen property. The crime of buying, receiving, concealing, or keeping property with knowledge that it was stolen was a wobbler prior to Prop 47. Under current law, the crime must be charged as a misdemeanor if the value of the stolen property is $950 or less.
Sentence reductions for theft crimes
The changes made by Prop 47 apply only to offenders who had not been sentenced on the date the new law went into effect. Offenders who have been sentenced for a felony theft will continue to be convicted of a felony even if the offense has now been reclassified as a misdemeanor.
The new law does give the hope of relief to offenders who were sentenced for felonies that are required to be charged as misdemeanors under the new law. An inmate who is currently serving such a sentence can petition the court for a “recall” of the sentence. In essence, that means the inmate is asking the court to vacate the existing sentence and to impose a new one.
The court is required to recall the sentence and to impose a misdemeanor sentence upon the offender unless the court decides that resentencing the offender “would pose an unreasonable risk of danger to public safety.” To make that decision, the court must consider:
- The nature and age of the offender’s prior convictions, if any.
- The harm the offender caused to victims of previous offenses, if any.
- The length of any previous sentences imposed upon the offender.
- The offender’s disciplinary record and efforts at rehabilitation while incarcerated.
- Any other evidence of risk of danger to the public that the court deems relevant.
The “risk of danger to public safety” that the court must consider is the risk that the offender will commit new violent crimes if released. The risk that the offender will commit new thefts is not relevant to the court’s risk assessment.
An offender who is resentenced is entitled to credit against that sentence for time already served. That means that many offenders who are granted resentencing will be released from custody as soon as their petition is granted.
Inmates who are entitled to petition for resentencing should ordinarily be given a new misdemeanor sentence if they have no record of violent convictions. Only in an unusual case would there be evidence that an inmate who has never been convicted of a violent crime poses a risk of committing a violent crime if released.
Although an inmate who has a criminal record that includes a violent crime may have more difficulty persuading a court to grant a petition to recall a theft sentence, the inmate’s lawyer may be able to make a strong argument that the inmate poses no risk to public safety. That argument is most likely to be successful when the inmate has not recently been convicted of a violent crime and when there is strong evidence that the inmate has changed his or her attitude about violent criminal behavior.
Any inmate serving a felony theft sentence for a crime that must now be punished as a misdemeanor should seek legal advice. Proposition 47 provides an excellent opportunity for those inmates to gain an early release from custody.