Although it will not be known until Election Day next week whether or not Proposition 47 passes, it appears from current polls that the likelihood is great that it will.  As such, since it will take effect immediately (12:01 a.m. 11/5/14), and will have a significant impact on law enforcement, it behooves us all to be aware of what it does and how to implement it.  However, it’s the implementation part of the law which creates concerns.

The initiative, according to the Official Voter Information Guide, published by the California Secretary of State, “requires [a] misdemeanor sentence instead of [a] felony [sentence] for certain drug and property offenses. [It is] inapplicable to persons with [a] prior conviction for serious or violent crime and registered sex offenders.”

According to the Legislative Analyst: “This measure reduces certain nonserious and nonviolent property and drug offenses from wobblers or felonies to misdemeanors. The measure limits these reduced penalties to offenders who have not committed certain severe crimes listed in the measure including murder and certain sex and gun crimes.”

Specifically, the measure affects the following crimes:

Grand Theft [This measure would limit when theft of property of $950 or less can be charged as grand theft. Specifically, those crimes would no longer be charged as grand theft solely because of the type of property involved (example handguns) or because the defendant had previously committed certain theft-related crimes.];

Shoplifting [Shoplifting property worth $950 or less would always be a misdemeanor and could not be charged as burglary.];

Receiving Stolen Property [Receiving stolen property worth $950 or less would always be a misdemeanor.];

Writing Bad Checks [It would be a misdemeanor to write a bad check unless the check is worth more than $950 or the offender had previously committed three forgery related crimes, in which case it would remain a wobbler crime.];

Check Forgery [Forging a check worth $950 or less would always be a misdemeanor, except that it would remain a wobbler crime if the offender commits identity theft in connection with forging a check.]; and

Drug Possession [Possession for personal use of most illegal drugs (such as cocaine or heroin) would always be misdemeanors, regardless of the amount or type of drug involved. The measure would not change the penalty for possession of marijuana, which is currently either an infraction or a misdemeanor.]

In addition to the changes set forth above, the measure allows offenders currently serving felony sentences for the above crimes to apply to have their felony sentences reduced to misdemeanor sentences.  The length of sentences- jail time and/or community supervision – would be less and none of these offenders would be sent to state prison. Instead, they would serve lesser sentences at the county level.

Issues of Concern to Law Enforcement

The primary concerns are how these changes will effect a law enforcement officer’s ability to make arrests and/or secure search warrants.  As you all know, according to Penal Code section 836, an officer cannot usually make an arrest for a misdemeanor not committed in his/her presence.  Since so many crimes will be changed from felonies to misdemeanors, if the initiative passes, officers will have a significant “learning curve” to understand which crimes, and under what circumstances, will subject someone to arrest.

In addition, securing a search warrant will be complicated, as well.  Since most warrants are issued for felonies (Penal Code section 1524), officers’ will be restricted in securing warrants for violations which, heretofore, were felonies but are now classified as misdemeanors.

Finally, many county jails have limits on the types of persons who will be incarcerated due to overcrowding and/or court imposed caps on population.  It appears that many of those previously incarcerated in state prison will now be in county jails and the limitations will significantly reduce the time they are incarcerated.


At this time it would be disingenuous for anyone to state that they know how Proposition 47 will affect law enforcement activity.  It will, undoubtedly, be subject to debate and litigation as the process evolves.

We have asked the Office of the Attorney General, on behalf of our clients, including CSSA, CPCA, and CPOA, to issue an Information Bulletin to provide guidance to California law enforcement regarding the impact and implementation of Proposition 47.  We do not know, at this moment, if such a Bulletin will be issued but, since the law, if passed, will take effect on November 5, time is of the essence.

As such, and as we always urge, it is imperative that you receive advice and guidance, preferably in writing, from your agency’s legal counsel in order to enable those of us who represent you to show good faith efforts to interpret and implement this new law.

If you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.