California Voter’s approved recreational marijuana for statewide use last November 2016 with Proposition 64. What many may not know is that the passage of the Proposition is that the law was changed not just to allow future use and possession/ cultivation of cannabis, but also corrected past draconian and unproductive punishments and criminal records created by the age of marijuana prohibition. As a result, many individuals convicted as felons as a result of past marijuana-related violations can once and for all clean up their records to either have the convictions dismissed and sealed, or at least reduced to misdemeanors or infractions, and allowing them to reap the benefits of the new paradigm shift created by Proposition 64.
The enactment of the Adult Use of Marijuana Act (Prop. 64) mandates that certain past convictions regarding marijuana or marijuana products be dismissed/reduced or sealed because the prior conviction is now legally invalid.
On November 8, 2016, the voters of the State of California passed into law the Control, Regulate and Tax Adult Use of Marijuana Act, also known as Proposition 64. This amended many portions of the Health & Safety Code regarding the criminality of marijuana, or marijuana products such as hashish, and regarding the right to grow one’s own marijuana for personal use.
For instance, Health & Safety Code section 11357(a), Possession of Concentrated Cannabis (hasish/oil/etc), was amended to read, in relevant part:
(a) Except as authorized by law, possession of not more than 28.5 grams of cannabis, or not more than eight grams of concentrated cannabis, or both, shall be punished or adjudicated as follows:
(1) Persons under 18 years of age are guilty of an infraction and shall be required to:
(A) Upon a finding that a first offense has been committed, complete four hours of drug education or counseling and up to 10 hours of community service over a period not to exceed 60 days.
(B) Upon a finding that a second offense or subsequent offense has been committed, complete six hours of drug education or counseling and up to 20 hours of community service over a period not to exceed 90 days.
(2) Persons at least 18 years of age but less than 21 years of age are guilty of an infraction and punishable by a fine of not more than one hundred dollars ($100).
(Cal. Health & Safety Code § 11357(a).
As indicated in Health & Safety Code section 11357(a), Possession of Concentrated Cannabis is only a law violation under the section if the individual was either under the ages 18 or 21 years old at the time of the offense. (Cal. Health & Safety Code § 11357(a)).
If the individual was over the age 21 years at the time of possessing concentrated cannabis, under the new regime created by Proposition 64, it is no longer a crime to possess the concentrated cannabis if in the amount of eight grams or less:
(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:
* * *
(2) Possess . . . not more than eight grams of cannabis in the form of concentrated cannabis, including as contained in cannabis products.
Cal. Health & Safety Code § 11362.1(a)(2).
Thus, Possession of Concentrated Cannabis as described in the California Health & Safety Code section 11357(a), if one is over age 21 years old, would be legal conduct under Health & Safety Code section 11362.1(a)(2), permitting the possession of not more than eight grams of concentrated cannabis by individuals 21 years or older. Cal. Health & Safety Code §§ 11357(a), 11362.1(a)(2).
As we will see, this now entitles individuals convicted of this crime, or other marijuana related crimes, to have their criminal records sealed or modified to reflect the new change in the law created by Prop. 64.
As Prop. 64 added and codified H&S section 11361.8 as law, anyone convicted of marijuana crimes in the past are entitled to have their records modified to reflect the new law, including reduction of the violations to misdemeanors or infractions, or even dismissal and sealing of the convictions because the prior conviction is now legally invalid.
The Adult Use of Marijuana Act, added Health & Safety Code section 11361.8 to the Code, describing a procedure by which those who have been convicted of a violation described by the Act, such as Health & Safety Code section 11357(a), may re-designate the violation to be an infraction and to be resentenced in light of the passage of the act. See Cal. Health & Safety Code § 11361.8. Health & Safety Code section 11361.8 reads in relevant part:
(e) A person who has completed his or her sentence for a conviction under Sections 11357, 11358, 11359, and 11360, 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 [Possession of Concentrated Cannabis/Hashish or Over One Ounce Marijuana], 11358 [Cultivation of Marijuana], 11359 [Possession of Marijuana for Sales], 11360 [Transportation of Marijuana for Sales], 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by that 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 infraction 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.
Cal. Health & Safety Code § 11361.8, parentheticals and emphasis added.
For instance, Health & Safety Code section 11357(a) regarding hashish, as discussed previously, only applies to individuals in possession of the substance under the age of 21 years old. See Health & Safety Code § 11357(a). Thus, Health & Safety Code section 11362.1(a)(2) applies to such a case, which permits the possession of concentrated cannabis by individuals 21 years or older where the concentrated cannabis possessed is in an amount less than eight grams. Cal. Health & Safety Code § 11362.1(a). For this reason, a prior conviction for Health & Safety Code section 11357(a) is now legally invalid because possession of concentrated cannabis is not a crime, and such an individual is now entitled to have his conviction dismissed and sealed under Health & Safety Code section 11361.8(e). Cal. Health & Safety Code § 11361.8(e). Such redesignation applies to many other marijuana related convictions, such as H&S section 11358 [Cultivation of Marijuana], H&S section11359 [Possession of Marijuana for Sales], and H&S section11360 [Transportation of Marijuana for Sales].
The time is now to clean up your record if you have ever been convicted of a marijuana or cannabis-related offense.
At Honeychurch & Giambona, we have already filed a significant number of petitions under Proposition 64 that have overturned our clients’ felony records into misdemeanors, infractions, or complete dismissals. If your were prosecuted for a marijuana-related offense in the Solano County communities of Fairfield, Green Valley, Vacaville, Benicia, Vallejo, Dixon, or Rio Vista, or in Napa and Yolo Counties, now is the time to act. Call our office today at 707-429-3111, and meet with one of our attorneys for a free consultation to discuss how we may be able to take maximum advantage of the new changes in cannabis law that may have a life-changing impact on your future.