A Second Prop 47 Opinion to Use in Challenging Enhancements.

March 2, 2016
By Hanging Out with Carl Gunn


  • Another district judge has ruled that prior drug possession convictions redesignated as misdemeanors under Prop 47 can’t be used to support an 851 enhancement.
  • The same judge also appears to have treated such a redesignated conviction as a misdemeanor for purposes of the Rule 609 limits on use of prior convictions for impeachment.


In a post last November, I talked about how California’s Prop 47 – which reduces drug possession from a felony to a misdemeanor and applies retroactively to redesignate prior drug possession convictions as misdemeanors – might be used in our federal cases where clients have prior drug possession convictions.  (See “Some Prop 47 Ideas – and Even One Opinion – Floating Around Out There” in the November 2015 link at the right.)  One of the ideas I discussed was challenging the government’s use of drug possession convictions that had been redesignated under Prop 47 to enhance mandatory minimum drug sentences under 21 U.S.C. § 841(b).  I linked some sample briefing and also an opinion/order written by Judge Phillips of our Central District, in which she agreed with the argument and granted a 2255 motion challenging the enhancement of a federal drug sentence based on a subsequently redesignated drug possession conviction.

In today’s post, I have more good news to offer – in the form of another Central District ruling in our favor.  Judge Klausner recently followed Judge Phillips’s opinion/order and granted a pretrial motion to dismiss a 21 U.S.C. § 851 information seeking enhancement based on a drug possession conviction that had been redesignated under Prop 47.  The redesignation took place after the new offense and even after the defendant had been indicted and the 851 information had been filed, but Judge Klausner held that didn’t matter.  He ruled that Prop 47 doesn’t just expunge or dismiss a prior conviction but retroactively redesignates it.  The order considered in detail both the defense arguments and the government arguments, as well as the state authority to date.  Rather than summarize the order in this short post, I’m linking it here, so you can read it and cite it for yourself.

Judge Klausner also had before him – in the same case – the motion in limine I described in my November post, challenging use of a prior drug possession conviction redesignated under Prop 47 for impeachment purposes under Rule 609 of the Federal Rules of Evidence, on the ground that it could no longer be treated as a felony under Rule 609.  Though the minute order addressing this motion in limine didn’t conduct a separate legal analysis, the order stated that the motion to exclude was “denied” “as to the felony convictions for robbery and possession of a firearm” (which were two other convictions addressed in the motion to limine) and “granted” “as to the misdemeanor convictions.”  The failure to describe the drug possession conviction as another felony suggests Judge Klausner’s conclusion that the conviction was a misdemeanor conviction for purposes of the 851 enhancement extended to treating it as a misdemeanor for purposes of Rule 609 impeachment.

In any event, at least on the 851 enhancement issue, you now have two opinions with lengthy analysis – the Judge Phillips opinion linked in my prior post and this new Judge Klausner opinion.  So, first, get those drug possession convictions redesignated, and, second, challenge any ongoing characterization of the convictions as felonies.