Prop 64 Passed on November 8, 2016 Legalizing Adult Use Cannabis as well as authorizing courts to resentence persons who are currently serving a sentence for cannabis offenses for which the penalty is reduced by the act, so long as the person does not pose a risk to public safety, and to redesignate or dismiss such offenses from the criminal records of persons who have completed their sentences as set forth in this act.

11361.5. Destruction of Arrest and Conviction Records; Procedure; Exceptions

(a) Records of any court of this state, any public or private agency that provides services upon referral under Section 1000.2 of the Penal Code, or of any state agency pertaining to the arrest or conviction of any person for a violation of Section 11357 or subdivision (b) of Section 11360, or pertaining to the arrest or conviction of any person under the age of 18for a violation of any provision of this article except Section 11357.5, shall not be kept beyond two years from the date of the conviction, or from the date of the arrest if there was no conviction, except with respect to a violation of subdivision (d) of Section 11357, or any other violation by a person under the age of 18 occurring upon the grounds of or within any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school‐related programs, the records shall be retained until the offender attains the age of 18 years at which time the records shall be destroyed as provided in this section. Any court or agency having custody of the records, including the statewide criminal databases, shall provide for the timely destruction of the records in accordance with subdivision (c), and such records must also be purged from the statewide criminal databases. As used in this subdivision, "records pertaining to the arrest or conviction" shall include records of arrests resulting in the criminal proceeding and records relating to other offenses charged in the accusatory pleading, whether defendant was acquitted or charges were dismissed. The two‐year period beyond which records shall not be kept pursuant to this subdivision shall not apply to any person who is, at the time at which this subdivision would otherwise require record destruction, incarcerated for an offense subject to this subdivision. For such persons, the two‐year period shall begin to run from the date the person is released from custody. The requirements of this subdivision do not apply to records of any conviction occurring prior to January 1, 1976, or records of any arrest not followed by a conviction occurring prior to that date, or records of any arrest for an offense specified in subdivision (c) of Section 1192. 7, or subdivision (c) of Section 667.5 of the Penal Code.

(b) This subdivision applies only to records of convictions and arrests not followed by conviction occurring prior to the January 1, 1976, for any of the following offenses:

(1)  Any violation of Section 11357 or statutory predecessor thereof.

(2)  Unlawful possession of a device, contrivance instrument, or paraphernalia used for unlawfully smoking marijuana, in violation of Section 13364, as it existed prior to January 1, 1976, or a statutory predecessor thereof.

(3)  Unlawful visitation or presence in a room or place which marijuana is being unlawfully smoked or used , in violation of Section 11365, as it existed prior to January 1, 1976 or statutory predecessor thereof.

(4)  Unlawfully using or being under the influence of marijuana in violation of Section 11550, as it existed prior to January 1, 1976, or a statutory predecessor thereof.  

Any persons subject to an arrest of conviction for those offenses may apply to the Department of Justice for destruction of records pertaining to the arrest or conviction if two or more years have elapsed since the date of the conviction, or since the date of arrest of not followed by a conviction. The application shall be submitted upon a form supplied by the Department of Justice and shall be accompanied by a fee, which shall be established by the department in an amount which will defray the cost of administering this subdivision and costs incurred by the state under subdivision (c), but which shall not exceed thirty seven dollars and fifty cents ($37.50). The application form may be made available at every local police of sheriff’s department and from the Department of Justice and may require that information which the department determines is necessary for purposes of identification.

The department may request, but not require, the applicant to include a self‐administered fingerprint upon the application. If the department is unable to sufficiently identify the applicant for the purposes of this subdivision without the fingerprint or without additional fingerprints, it shall so notify the applicant and shall request the applicant to submit any fingerprints which may be required to effect identification, including a complete set if necessary, or, alternatively, to abandon the application and request a refund of all or a portion of the fee submitted with the application, as provided in this section. If the applicant fails or refuses to submit fingerprints in accordance with the department’s request within a reasonable time which shall be established by the department or of the applicant requests a refund of the fee, the department shall promptly mail a refund to the applicant at the address specified in the application or at any other address which may be specified by the applicant. However, if the department has notified the applicant that election to abandon the application will result in forfeiture of a specified amount which is a portion of the fee, the department may retain a portion of the fee which the department determines will defray the actual costs of processing the application, provided the amount of the portion retained shall not exceed ten dollars ($10).

Upon receipt of a sufficient application, the Department of Justice shall destroy records of the department, if any, pertaining to the arrest of conviction in the manner prescribed by subdivision (c) and shall notify the Federal Bureau of Investigation, the law enforcement agency which arrested the applicant, and, if the applicant was convicted, the probation department which investigated the applicant and Department of Motor Vehicles, of the application.

(c) Destruction of the records of arrest or conviction pursuant to subdivision (a) or (b) shall be accomplished by permanent obliteration of all entries or notations upon the records pertaining to the arrest of conviction, and the record shall be prepared again so that appears that the arrest of conviction never occurred. However, where (1) the only entries upon record pertain to the arrest or conviction and (2) the record can be destroyed without necessarily effecting the destruction of other records, then the document constituting the record shall be physically destroyed.

(d) Nothwithstanding subdivision (a) or (b) written transcriptions of oral testimony in the court proceedings and published judicial appellate court proceedings and published judicial appellate reports are not subject to this section. Additionally, no records shall be destroyed pursuant to subdivision (a) if the defendant or a codefendant has filed a civil action against the peace officers or law enforcement jurisdiction which made the arrest or instituted the prosecution and if the agency which is the custodian of the records has received a certified copy of the complaint in the civil action, until the civil action has been finally resolved.

Immediately following the final resolution of the civil action, records subject to subdivision (a) shall be destroyed pursuant to subdivision (c) if more than two years have elapsed from the date of the conviction or arrest without conviction.

Proposition 47, also known by its ballot title

Criminal Sentences. Misdemeanor Penalties. Initiative Statute

was a referendum passed by voters in the state of California on November 4, 2014.  The measure was also referred to by its supporters as the Safe Neighborhoods and Schools Act.  It recategorized some nonviolent offenses such as many low level theft and drug possession offenses as misdemeanors, rather than felonies, as they had previously been categorized. The proposition would have expired on November 4, 2017, though governor Jerry Brown approved a bill that extended the deadline to November 4, 2022.

Reduction of Penalties

Proposition 47 amends various provisions of the Penal and Health and Safety Codes to reduce personal possession drug offenses and thefts involving less than $950 from a straight felony or a “wobbler,” to a straight misdemeanor. (For a table of Proposition 47 crimes, see Appendix III.) It is important to note, however, that the reduction in penalty only is available to persons who do not have a prior conviction for any of the specified “super strikes,” and are not required to register as a sex offender. (See Section III, supra, for a discussion of exclusions.)

A. Penal Code violations

1. Section 459.5 (new) – Shoplifting [punishment: up to 6 months in jail (see § 19)]. Section 459.5 provides that “[n]otwithstanding section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed . . . $950.” (§ 459.5(a).) Any other entry with intent to commit theft is burglary. “Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.” (§ 459.5(b).)

If a defendant has been charged with a commercial burglary based on facts which now constitute “shoplifting,” but has not been sentenced as of November 5, 2014, it is likely the defendant will be able to request the court to amend the charges to a violation of section 459.5. It also appears that a petitioner seeking resentencing or an applicant for reclassification can request a change of a prior second-degree burglary conviction to shoplifting for a crime sentenced prior to November 5th, if the facts of the crime meet the definition is section 459.5(a). Section 1170.18(a) provides that “[a] person currently serving a sentence for a conviction . . . of a felony . . . who would have been guilty of a misdemeanor under this Act had this Act been in effect at the time of the offense may petition for a recall of sentence . . . to request resentencing in accordance with . . . section 459.5. . . .” Section 1170.18(f) provides similar language for reclassification of offenses. If the facts of the crime fit “shoplifting,” certainly the defendant would have been convicted of a violation of section 459.5 had the statute then been in effect. While section 3 provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared,” it seems section 1170.18(a) contains just such an express declaration because it authorizes resentencing of a crime under section 459.5 even though it occurred prior to November 5, 2014.

There is some confusion over the proper numbering of this new crime. In the version of the initiative originally submitted to the Secretary of State, the statute was designated as section 459a. In the version submitted to the voters in the Voter Information Guide, the statute is designated as section 459.5. Likely the final version of the statute will be as submitted to the voters.

If the crime involves the simple theft of merchandise displayed for sale, there is no question the crime fits within section 459.5 if the value does not exceed $950. Appellate courts have been divided on whether the crime applies to less obvious forms of theft such as attempting to cash a forged or stolen check. The issue usually arises in the context of a request for relief under section 1170.18 where the defendant has been convicted of the crime of second degree burglary. Since burglary is committed with the entry into a building “with the intent to commit grand or petit larceny or any other felony,” the courts have struggled with whether the tendering of a fraudulent check is actually “larceny.” The issue has been resolved by the Supreme Court in People v. Gonzales (2017) 2 Cal.5th 858. InGonzales the defendant entered a bank to cash a stolen check of less than $950.

The court found the conduct to be shoplifting as defined by section 459.5. The court observed that section 490a provides that whenever a statute references “larceny, embezzlement or stealing,” it must be interpreted as “theft.” The court applied section 490a to crimes committed under section 459.5. (Id., at pp. 868- 875.) The court specifically held that “shoplifting” is not limited to situations where the defendant steals merchandise on display. (Id., at pp. 873-874.) If section 459.5 applies, the defendant may not be alternatively charged with burglar or identity theft. (Id., at pp.876-877.)

“Shoplifting” does not apply to a commercial burglary conviction for entering into an office of the Department of Motor Vehicles for the purpose of submitting a fraudulent application for a driver’s license. (People v. Chen (2016) 245 Cal.App.4th 322.)

“Shoplifting” includes the attempt to sell a stolen surfboard of less than $950 in value. (People v. Fusting (2016) 1 Cal.App.5th 404.)

The fact that defendant entered with another person to commit petty theft – in essence conspired to commit larceny – does not remove the crime from the shoplifting statute. (People v. Huerta (2016) 3 Cal.App.5th 539, 544-545.)

Using a forged prescription to obtain drugs is not “shoplifting.” (People v. Brown(2017) 7 Cal.App.5th 1214.)

For the purposes of determining whether the defendant took more than $950 for the purposes of shoplifting, when a defendant pawns stolen goods, the value is determined by the amount of money received from the pawnbroker. “If a petitioner or applicant who successfully pawned stolen goods can prove that he or she received $950 or less in exchange for the stolen property—in other words, that the pawning of the goods did not injure the pawn shop beyond the $950 threshold applicable in most theft cases—he or she should be entitled to relief under a liberally construed Proposition 47.” (People v. Pak (2016) 3 Cal.App.5th 1111, 1120.)

The attempt to break into a coin operated soap dispenser at a commercial laundromat where the machine contains less than $950 is shoplifting. (People v. Bunyard (2017) 9 Cal.App.5th 1237.)

Commercial establishment

The decision in In re J.L (2015) 242 Cal.App.4th 1108, discusses the definition of “commercial establishment.” The minor stole a cell phone from the public high school locker of a fellow student. In affirming the adjudication of the minor for burglary, the court held the location of the theft did not occur at a “commercial establishment” as contemplated by section 459.5. “Whatever broader meaning ‘commercial establishment’ as used in section 459.5 might bear on different facts, J.L.'s theft of a cell phone from a school locker room was not a theft from a commercial establishment. Giving the term its commonsense meaning, a commercial establishment is one that is primarily engaged in commerce, that is, the buying and selling of goods or services. That commonsense understanding accords with dictionary definitions and other legal sources. (Webster's 3d New Internat. Dict. (2002) p. 456 [‘commercial’ means ‘occupied with or engaged in commerce’ and ‘commerce’ means ‘the exchange or buying and selling of commodities esp. on a large scale’]; The Oxford English Reference Dict. (2d ed. 1996) p. 290 [defining ‘commerce’ as ‘financial transactions, esp. the buying and selling of merchandise, on a large scale’]; Black's Law Dict. (10th ed. 2014) p. 325 [‘commercial’ means ’[o]f, relating to, or involving the buying and selling of goods; mercantile’]; see also 37 C.F.R. § 258.2 [copyright regulation defining the term ‘commercial establishment’ as ‘an establishment used for commercial purposes, such as bars, restaurants, private offices, fitness clubs, oil rigs, retail stores, banks and financial institutions, supermarkets, auto and boat dealerships, and other establishments with common business areas’]; Gov. Code § 65589.5 [defining ‘neighborhood commercial’ land use as ‘small-scale general or specialty stores that furnish goods and services primarily to residents of the neighborhood’];People v. Cochran (2002) 28 Cal.4th 396, 404–405, 121 Cal.Rptr.2d 595, 48 P.3d 1148 [citing dictionary definition of commerce, ‘[t]he buying and selling of goods, especially on a large scale,’ in interpreting statutory phrase ‘commercial purpose’].) A public high school is not an establishment primarily engaged in the sale of goods and services; rather, it is an establishment dedicated to the education of students. ¶ We believe the voters enacting Proposition 47 understood the reference to ‘shoplifting’ in the ballot pamphlet materials, including in the title and text of section 459.5, in the same way. Shoplifting is commonly understood as theft of merchandise from a store or business that sells goods to the public. (Webster's 3d New Internat. Dict., supra, p. 2101 [defining shoplifting as ‘the stealing of goods on display in a store’]; Black's Law Dict., supra,p. 1590 [‘Theft of merchandise from a store or business; specif., larceny of goods from a store or other commercial establishment by willfully taking and concealing the merchandise with the intention of converting the goods to one's personal use without paying the purchase price’].) Except for perhaps a school cafeteria or bookstore (circumstances not at issue here, where the phone was stolen from a school locker), a public school is not engaged in the business of selling merchandise or goods at all. It is therefore immaterial, as defendant contends, that a school maintains regular hours, accepts phone calls, or may handle payroll in connection with its personnel. Looking to the ordinary meaning of the statutory language, we simply do not believe that the voters enacting Proposition 47 understood a public high school to be a commercial establishment or a theft from a school locker to be ‘shoplifting.’” (J.L., supra, 242 Cal.App.4th at pp. 1114-1115.)

Entry into a locked storage unit does not constitute entry into a “commercial establishment” for the purposes of shoplifting. (People v. Stylz (2016) 2 Cal.App.5th 530.)

A private golf and country club is a “commercial establishment.” (People v. Holm(2016) 3 Cal.App.5th 141.)

Entry into a commercial establishment’s employee restroom for the purpose of committing larceny qualifies as a “commercial establishment.” (People v. Hallam(2016) 3 Cal.App.5th 905.)

People v. Vargas (2016) 243 Cal.App.4th 1416, concludes “commercial establishment” includes a commercial check-cashing business. “Certainly, the lay person might understand ‘shoplifting’ to mean entering a retail store during regular business hours with the intent to steal displayed merchandise, as respondent urges. But that is not how the voters defined ‘shoplifting’ in section 459.5; instead, they defined it as entering a commercial establishment during business hours with the ‘intent to commit larceny.’ Accepting respondent’s narrow interpretation would require us to rewrite the statute, which we cannot do. Similarly, we disagree with Gonzales that the phrase ‘intent to commit larceny’ excludes the intent to commit theft by false pretenses. Larceny is statutorily equated with ‘theft’ (§ 490a), and ‘theft’ is defined to include theft by false pretenses, that is, ‘knowingly and designedly, by any false or fraudulent representation or pretense, defraud[ing] any other person of money, labor or real or personal property.’ (§ 484, subd. (a).)” (Vargas, at p. 1420; cf. In re J.L. (2016) 242 Cal.App.4th 1108, 1115, holding that “shoplifting” is understood as the theft of merchandise from a retail establishment.) In accord with Vargas are People v. Triplett (2016) 244 Cal.App.4th 824, People v. Root (2016) 245 Cal.App.4th 353, and People v. Smith (2016) 1 Cal.App.5th 266, 272. Vargas, Triplett and Root have been granted review.

2.      Section 473 (amended) – Forgery [punishment: up to one year in jail]. Section 473(b) provides for misdemeanor treatment if the forgery of a particular commercial document does not exceed $950. Since the statute references “forgery relating to a check, bond,” etc., the value limitation relates to the particular instrument, not the accumulated value if multiple documents are forged. (People v. Hoffman (2015) 241 Cal.App.4th 1304; People v. Salmorin (2016) 1 Cal.App.5th 738, 744-745.) It appears the drafters were aware of the distinction since section 476a, regarding checks issued with insufficient funds, makes specific reference to “the total amount of all checks . . .” not exceeding $950. (§ 476a(b).)

The amendments to section 473 do not apply to “any person who is convicted both of forgery and of identity theft, as defined in Section 530.5.” (§ 473(b).) The “identity theft” exclusion will only apply when the identity theft is transactionally related to the forgery. (People v. Gonzales (2016) 6 Cal.App.5th 1067, review granted.)

Courts are in conflict over the definition of “value” of the forged check. People v. Franco (2016) 245 Cal.App.4th 679, and People v. Salmorin, supra, at pp. 745-754, hold the stated or face value of the check controls the determination of value for the purposes of eligibility under Proposition 47. Franco has been granted review.

Another view of “value” is stated in People v. Lowery (2017) 8 Cal.App.5th 533: “We think a forged check may have a monetary value equal to its written value. (Cf. People v. Salmorin (2016) 1 Cal.App.5th 738, 744–745, 205 Cal.Rptr.3d 142.) If Lowery had successfully cashed the check for its written value, this would be overwhelming evidence that it was worth its written value. But other extrinsic factors may be equally relevant to the determination such that an evidentiary hearing is required. A defendant may be able to introduce evidence showing the actual monetary value of the check is less than its written value. For example, a check may be so ineptly forged that even the most credulous clerk would refuse to honor it. A poorly forged check for a million dollars is unlikely to be cashed, and it makes little sense to assign the written value to such a check. The more serious crime would consist of expertly forging a check for a thousand dollars. Allowing a defendant to present evidence that a forged check was not likely to be cashed is therefore consistent with the primary purposes of Proposition 47, which include reducing the number of nonviolent offenders in state prisons and reserving prison sentences for more serious offenders. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70; People v. Montgomery (2016) 247 Cal.App.4th 1385, 1389–1390, 203 Cal.Rptr.3d 228.) A defendant might also be able to present evidence through an expert witness that a forged check has a monetary value less than its written value based on a discounted price paid on the street. (See U.S. v. Tyers (2d Cir. 1973) 487 F.2d 828, 831 [jury was properly instructed that it could consider ‘street value’ of stolen money orders].) Proposition 47 relief may also be summarily granted based on the face amount (for example where a forged check is written for less than $950), as it is virtually certain that the market value of a forged instrument would not exceed its face amount. ¶ For the above reasons, we hold the term ‘value’ in Penal Code section 473 refers to the actual monetary worth of the check, not the amount for which it was written.” (Emphasis in original.)

The determination of value of counterfeit bills does not include unused paper or other materials that could be fashioned into fraudulent bills; value is limited to the face amount of the completed bills. (People v. Rendon (2016) 4 Cal.App.5th 974, 979.) Similarly, People v. Vandiver (2017) 10 Cal.App.5th 256, holds blank checks have a de minimis value; value is not determined by the amount in the victim’s bank account.

Possession of counterfeit currency of less than $950 qualifies as a “bank bill” or “note” for the purposes of section 473 and 475. Such a crime qualifies for relief under Proposition 47. (People v. Maynarich (2016) 248 Cal.App.4th 77.) Generally in accord with Maynarich are People v. Smith (2016) 1 Cal.App.5th 266, and People v. Mutter (2016) 1 Cal.App.5th 429.

Defendant was convicted of forging a credit card receipt and was convicted of a felony violation of section 473. The denial of his petition for resentencing was denied because the kind of forgery committed by the defendant was not included in the list of offenses covered by Proposition 47. “The plain language of section 473 is clear and unambiguous. Under subdivision (b) of section 473, a forgery conviction is a misdemeanor if the instrument utilized in the forgery is a check, bond, bank bill, note, cashier's check, traveler's check, or money order with a value of $950 or less. If the forgery does not involve one of the seven instruments specified in section 473, subdivision (b), it is a wobbler under subdivision (a) of section 473. Defendant was convicted of a ‘receipt for goods’ forgery. A receipt for goods is not one of the seven instruments specified in section 473, subdivision (b). Defendant therefore was ineligible to have his ‘receipt for goods’ forgery conviction designated as a misdemeanor pursuant to section 473, subdivision (b).” (People v. Martinez (2016) 5 Cal.App.5th 234, 241.)

3.      Section 476a (amended) – Insufficient Funds [punishment: up to one year in jail]. Section 476a(a) generally punishes the fraudulent use of commercial instruments as a felony, and provides punishment of up to one year in jail, or a sentence under section 1170(h). Section 476a(b), was amended to provide that if the total amount of instruments does not exceed $950, the crime is a misdemeanor, punishable by up to one year in jail. The previous threshold level of $450 was raised to $950. The reduced punishment is not available if the defendant has three or more prior convictions of violating sections 470, 475, 476, or 476a. Previously, section 476a(b) had allowed felony prosecution with only one such prior conviction.

4.      Section 490.2 (new) – Definition of Grand Theft. Section 490.2(a) provides that “[n]otwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed [$950], shall be considered petty theft and shall be punished as a misdemeanor . . . .” (Emphasis added.) The new section will be inapplicable to any theft that may be charged as an infraction. (§ 490.2(b).) The new definition will focus on the value of the property taken rather than just the nature of the property taken. For example, theft of any firearm or automobile was grand theft under section 487(d); the theft of any property “from the person” was grand theft under section 487(c). Now, these crimes will be misdemeanors unless the value of the property taken exceeds $950. The new statute appears to trump statutes which require only a $250 level to constitute grand theft. (See, e.g., § 487(b)(1)(B) – theft of specified agricultural products exceeding $250 in value.)

Theft of access card information

Courts were divided on whether Proposition 47 applies to section 484e, prohibiting theft of access cards or account information. Subdivision (d) provides: “Every person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder’s or issuer’s consent, with the intent to use it fraudulently, is guilty of grand theft.” The issue has been resolved by the Supreme Court inPeople v. Romanowski (2017) 2 Cal.5th 903, which holds that section 484e is an eligible offense. The court concludes that any specie of grand theft in section 487, or other crimes defining theft, are eligible if the theft is of property less than $950 in value. In the context of section 484e, value is based on the information obtained, not the value of any property that may have been purchased with the information. The proper measure is “the reasonable and fair market value” of the information. (Id., at p. 915.) If there is no legal market for the information, the court must consider potential illicit sales of the information. (Id. at pp.915-916.) The rule “requires courts to identify how much stolen access card information would sell for” on the black market Only if the information has no value on any market, legal or otherwise, is it considered de minimis. If the issue of value has been raised in connection with a request for relief under section 1170.18, the defendant has the burden of proving the value of the information is less than $950. (Id. at p. 916.) It may be necessary for the court to conduct a hearing to allow the defendant to meet this burden.

Vehicle crimes

People v. Page (2015) 241 Cal.App.4th 714, and People v. Haywood (2015) 243 Cal.App.4th 515, hold that the new definition of grand theft does not apply to crimes charged under Vehicle Code, section 10851. In accord with Page andHaywood is People v. Sauceda (2016) 3 Cal.App.5th 635. Similarly, the initiative has no application to receiving a stolen vehicle under section 496d. (People v. Peacock (2015) 242 Cal.App.4th 708.) In accord with Page and Peacock are People v. Orozco (2016) 244 Cal.App.4th 65, and People v. Johnston (2016) 247 Cal.App.4th 252. Page, Haywood, Peacock, Orozco, and Johnston have been granted review by the Supreme Court.

People v. Solis (2016) 245 Cal.App.4th 1099, also holds the new definition of grand theft does not apply to violations of Vehicle Code section 10851. The decision is based in part on the fact that section 10851 also includes “the unlawful driving of a motor vehicle,” an offense that does not even involve theft. Solis has been granted review.

People v. Ortiz (2016) 243 Cal.App.4th 854, however, holds the theft of a vehicle of a value less than $950 does qualify for misdemeanor disposition, even though the crime was charged under Vehicle Code, section 10851. The application for resentencing was properly denied, however, because the applicant failed to meet the initial burden of proof that the value of the vehicle was less than $950. Ortizhas been granted review.

People v. Van Orden (2017) 9 Cal.App.5th 277, breaks down the vehicle offenses by the nature of the conduct. If the crime involves the pure taking of a vehicle without driving or the taking of a vehicle with driving, the conduct qualifies as petty theft if the vehicle is less than $950 in value. But if the conduct is driving only or post-theft driving after a substantial break from the theft, the crime is not included in Proposition 47.

Proposition 47 does not apply the crime of attempted auto burglary. (People v. Acosta (2015) 242 Cal.App.4th 521.)

Other crimes

Section 490.2 does not include the crime of theft from an elder adult under the provisions of section 368. (People v. Bush (2016) 245 Cal.App.4th 992.)

5.      Section 496 (amended) – Receiving Stolen Property [punishment: up to one year in jail]. If the value of the property received does not exceed $950, section 496(a) specifies the crime is a misdemeanor. Previously section 496(a) gave the district attorney the discretion to charge the crime as a misdemeanor if the property did not exceed $950; now the district attorney must charge the crime as a misdemeanor if the value of the property does not exceed $950.

Proposition 47 does not apply to section 496d, receiving a stolen vehicle, even though the value of the vehicle is less than $950. (People v. Garness (2015) 241 Cal.App.4th 1370; People v. Peacock (2015) 242 Cal.App.4th 708; People v. Nichols(2016) 244 Cal.App.4th 681 [Court rejected an application of the Equal Protection Clause].) The Supreme Court has granted review of Garness, Peacock, and Nichols. In accord with Garness is People v. Varner (2016) 3 Cal.App.5th 360.

The value of the stolen property for the purposes of determining eligibility under Proposition 47 is its fair market value as discussed in People v. Romanowski (2017)2 Cal.5th 903. The value of a stolen blank check, without other evidence, is de minimis. (People v. Vandiver (2017) 10 Cal.App.5th 256.)

6.      Section 666 (amended) – Thefts with Prior Convictions. Section 666 is amended to eliminate the crime of “petty with a prior” as to most persons. Section 666 now applies only to persons excluded from Proposition 47 who have previously “been convicted of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368 [elder abuse], auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496,” and have served a term of imprisonment for the offense. Now, unless excluded by the initiative, an offender could commit an unlimited number of petty thefts without any exposure to felony prosecution under this section.

Before the enactment of Proposition 47, a petty theft only could be prosecuted as a felony if the person had three or more designated prior theft convictions. The initiative eliminates the requirement of three prior convictions. Now, the excluded offender may be prosecuted under section 666 with only one prior conviction of petty theft, grand theft, elder abuse, auto theft, burglary, carjacking, robbery, or a felony violation of receiving stolen property.

It is also important to note that the exclusion from Proposition 47 in this section based on sex registration is different and broader than the general exclusions in the rest of the initiative. In prosecutions under section 666, the exclusion includesall persons required to register under the Sex Offender Registration Act, not just those persons required to register because of section 290(c). This distinction, however, likely is the result of a drafting error. Because there is no rational basis for treating persons convicted of a violation of section 666 any differently than persons convicted of other Proposition 47-eligible offenses, the enforcement of the exclusion likely would be a violation of the Equal Protection clause.

While shoplifting under section 459.5 requires the crime to be committed in a commercial establishment, the crime of petty theft with a prior does not. The felony offense of petty theft with a prior theft conviction may be reduced to a misdemeanor petty theft without a showing the crimes were committed in a commercial establishment. (People v. Sloat (2017) ___ Cal.App.5th ___ [B270080] 2017 WL 1315672.)

B. Health and Safety Code violations

Simple possession of most drugs is now a misdemeanor punishable by up to one year in county jail. The possessory offenses include concentrated cannabis, methamphetamine, cocaine, and heroin.

1. Health & Safety Code, section 11350 (amended) – Possession of designated narcotics [punishment: up to one year in jail]. Section 11350(a) is amended to include section 11054(e), possession of certain depressants, as a crime with misdemeanor punishment. Unlike the other Proposition 47 code sections which permit prosecution as a “wobbler,” if a person is excluded from the benefits of Proposition 47, punishment under section 11350 will be as a straight felony under section 1170(h).

2. Health & Safety Code, section 11357 (amended) – Possession of concentrated cannabis [punishment: up to one year in jail and/or a fine of up to $500]. Proposition 47 does not amend the penalties for other portions of section 11357 which relate to specified large amounts of marijuana, or possession of marijuana on school grounds.

3. Health & Safety Code, section 11377 (amended) – Possession of designated narcotics [punishment: up to one year in jail]. Proposition 47 changes the penalty for all possessory offenses listed in section (a) to a straight misdemeanor, unless the offender falls within the purview of an exception. It also eliminates all of the designated offenses in section 11377(b).

Cultivation of marijuana under Health and Safety Code section 11358 is not eligible for reduction under Proposition 47; such an exclusion does not violate defendant’s equal protection rights. (People v. Descano (2016) 245 Cal.App.4th 175.)