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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 110580
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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Why is 459/460() not eligible : Simple question, do you have

Customer Question

Why is 459/460(b) not eligible for proposition47
JA: The Criminal Lawyer will need to help you with this. Have you consulted a lawyer yet?
Customer: Simple question, do you have an answer?
JA: Please give me a bit more information, so we can help you best.
Customer: Why is p.c 459/460(b) entering a closed commercial with intent to steal property $650.00 not eligible for proposition 47.
JA: Is there anything else important you think the Criminal Lawyer should know?
Customer: Just trying to reduce from felony to misdemeanor
JA: What state is this in? And can you tell me a little more about the charge?
Customer: Santa Clara County California
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Criminal Lawyer about your situation and then connect you two.
Submitted: 4 months ago.
Category: Criminal Law
Expert:  Colleen Grady replied 4 months ago.

Hello. I will help you with this question. I have been an attorney for 27 years and I was a district attorney for 9 years. Please give me a few minutes. I am writing a complete answer for you.

Expert:  Colleen Grady replied 4 months ago.

Can you tell me if you have pleaded guilty yet or are you still facing charges in court?

Customer: replied 4 months ago.
Pled guilty, received 7 months 5 years probation, in July 2013.
Expert:  Colleen Grady replied 4 months ago.

Did you plead guilty to a misdemeanor or felony?

Customer: replied 4 months ago.
I'm trying to reduce felony to misdemeanor, with my rapier burglaries they reduced them all, except the 2013 one, under proposition 47
Customer: replied 4 months ago.
Felony plea
Customer: replied 4 months ago.
Second degree burglary
Expert:  Colleen Grady replied 4 months ago.

Do you have any prior convictions before this?

Expert:  Colleen Grady replied 4 months ago.

I asked you about prior convictions because you may be eligible to apply for a misdemeanor sentence under Prop 47. However, if you have a prior felony conviction you would not be eligible.

Customer: replied 4 months ago.
I have multiple priors, in which were reduced recently. However the recent one was not allowed. Allegedly due to the circumstances of the commercial building was closed. I fail to understand this because the prior burglaries circumstances were exactly the same, those building were closed
Expert:  Colleen Grady replied 4 months ago.

Here is a legal memo from the Santa Clara DA's office on Prop 47:

Look at page 5 regarding charging 459.5 and having a prior felony.

I am going to opt out to see if another expert can help more.

Customer: replied 4 months ago.
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
I am a DIFFERENT CONTRIBUTOR as your previous contributor had to leave.
Under Prop 47, wobbler crimes are charged as misdemeanors, but I am unsure of your question, because if you have priors, then the CA law says the PC 459.5 is charged as a felony at the discretion of the prosecutor and does not fall under Prop 47 because of the prior offense (just as it excludes offenses where value of property is over $950).
Instead of being under Prop 47, whether or not to charge as a felony when a defendant has priors is solely up to the DA as it was before Prop 47. So the charging here is not because this latest was or was not the same as your other offenses it is because the DA is using his/her discretion which is allowed under Prop 47 because Prop 47 says a defendant with priors is at the discretion of the DA as to whether to charge it as a felony or misdemeanor.