Expunge or Reduce Your Old Marijuana Conviction Now After the Passage of Proposition 64.
Have you suffered a past conviction for a marijuana offense that falls within Proposition 64?
As of November 8, 2016, California law has changed with respect to marijuana. California voters adopted the “Control, Regulate and Tax Adult Use of Marijuana Act”, commonly known as the “Adult Use of Marijuana Act”. The act has more four major components:
• It permits adults, 21 years of age and order, to legally possess, transport, purchase, consume or share up to one ounce (less than or equal to 28.5g) of marijuana, and up to 8 grams of marijuana concentrates. It also permits adults 21 and older to grow up to 6 marijuana plants per household out of public view. It also reduces for many marijuana offenses - what previously was a felony in many cases has been changed to a misdemeanor or is a wobbler (capable of being either a felony or misdemeanor). Several misdemeanors are now infractions. Statutes have been created to regulate the public consumption of marijuana
• New Health and Safety Code Section 11361.8 permits persons previously convicted of certain marijuana offenses to obtain a reduced conviction or sentence if they would have received the lesser consequences of the laws now in place when the crime was committed. If the crime was for conduct now legal, there is a provision requiring the court to “dismiss and seal” the record of conviction.
• The new laws establish a comprehensive system to control the cultivation, distribution and sale of nonmedical marijuana and marijuana products.
• The new laws create a marijuana tax that will be imposed upon purchasers.
If you have a conviction on your record that falls under Proposition 64, you are eligible in most cases to have the charge reduced and sealed. This is available to both adults and juveniles.
Eligible offenses: Health and Safety Code Sections 11357, 11358, 11359, 11360
Persons Currently Service a Sentence
f you are still serving a sentence, meaning you are in prison or jail, on mandatory supervision, Postrelease Community Supervision, probation or your case is on appeal, you can petition the sentencing judge for a recall or dismissal of sentence and be resentenced under the new laws.
Dangerousness: If the defendant is eligible for relief, the court must grant the petition “unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety”. (Health and Safety Code Section 11361.8(b).)
If you have completed your sentence, you can also petition the court to have the conviction redesignated as a misdemeanor or infraction and perhaps have the prior offense dismissed and sealed if the offense is not longer a crime under the Act. Note that as to some offenses, the defendant must have been either between the ages of 18 and 21, or over 21 when the crime was committed. The ability to obtain a reduced sentence may also depend on the type and quantity of marijuana involved.
Already Expunged Offenses
The fact that a qualified conviction has been dismissed under Penal Code Section 1203.4 does not preclude the granting of relief under Proposition 47 (People v. Tidwell (2016) 246 Cal.App.4th 212.) Given the intent of the Act to provide broad relief to persons who have committed designated marijuana offenses, is seems likely Tidwell will apply to petitions under Proposition 64.
If you would like to see if your conviction can be reduced pursuant to the provisions of Proposition 64, you should consult an experienced Orange County criminal defense attorney.
A defense attorney can help make sure that the charge has as little impact on your livelihood and your future as possible. At the Law Offices of Vincent J. LaBarbera, Jr., we have over 36 years of experience defending people charged with weapons offenses and similar crimes. We understand the justice system and all of your options. We will give your case individual attention and work as an aggressive advocate on your behalf. For a confidential evaluation of your case, call us today at (949) 863-1663.
Full Text of Health and Safety Code Section 11361.8
Section 11361.8 is added to the Health and Safety Code to read:
(a) A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that Act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by this Act.
(b) Upon receiving a petition under subdivision (a), the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in subdivision (a), the court shall grantthe petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.
(1) In exercising its discretion, the court may consider, but shall not be limited to evidence providedfor in subdivision (b) of Section 1170.18 of the Penal Code. (2) As used in this section, "unreasonable risk of danger to public safety"has the same meaning as provided in subdivision (c)·ofSection 1170.18 of the Penal Code.
(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to supervision for one year following completion of his or her time in custody or shall be subject to whatever supervision time he or she would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision. Such person is subject to parole supervision under Penal Code Section 3000.08 or post-release community supervision under subdivision (a) of Section 3451 of the Penal Code by the designated agency and the jurisdiction of the court in the county in which the offender is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke supervision and impose a term of custody.
(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.
(e) A person who has completed his or her sentence for a conviction under Sections 11357, 11358, 11359, and 113 60, whether by trial or open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that Act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the conviction dismissed and sealed because the prior conviction is now legally invalid or redesignated as a misdemeanor or infraction in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by this Act.
(f) The court shall presume the petitioner satisfies the criteria in subdivision (e) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in subdivision (e). Once the applicant satisfies the criteria in subdivision (e), the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid as now established under the Control, Regulate and Tax Adult Use of Marijuana Act.
(g) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (e).
(h) Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor or infraction under subdivision (f) shall be considered a misdemeanor or irifraction for all purposes. Any misdemeanor conviction that is recalled and resentenced under subdivision (b) or designated as an infraction under subdivision (f) shall be considered an infraction for all purposes.
(i) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
(j) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
(k) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of the Control, Regulate and Tax Adult Use of Marijuana Act.
(l) A resentencing hearing ordered under this act shall constitute a "post-conviction release proceeding" under paragraph (7) of subdivision (b) ofSection 28 of Article I of the California Constitution (Marsy 'sLaw).
(m) The provisions of this section shall apply equally to juvenile delinquency adjudications and dispositions under Section 60 2 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act.
(l) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section.