People v. Delapena: Prop 47 Is Not Retroactive, Petition Must Be Filed When Case Is Closed

In People v. Delapena (2015) _Cal.App.4th_, Case No. H041363, decided on July 30, 2015, the appellate court held that an appellate court is not required to reduce an appellant’s felony drug possession offense to a misdemeanor under Proposition 47 because Prop 47 is not retroactive. 

Although the statutes amended by Proposition 47 include Health and Safety Code section 11377, subdivision (a), which is the statute appellant was convicted of violating, and this statute is now punishable as a misdemeanor if the defendant has no disqualifying priors, Penal Code section 1170.18 provides the procedure whereby qualified defendants may seek resentencing pursuant to Proposition 47.    In re Estrada (1965) 63 Cal.2d 740, held that when the Legislature (or electorate) amends a statute to reduce the punishment for an offense, courts will assume the Legislature intended the reduction to apply to all cases not yet final, absent evidence to the contrary.  But appellant’s case was already final when Prop. 47 passed. 

Furthermore, the appellate court rejected appellant’s claim for equal protection. 

In order to benefit from Prop 47 when a case is closed and is on appeal, the defendant must file a petition under Proposition 47 to allow the trial court to conduct a review of the defendant's criminal history and perform a risk assessment so that anyone who presents a risk to public safety or who is otherwise disqualified will not benefit from the law.  Here, the appellant may file a petition in the trial court for reduction of his offense. 


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