PETITION UNDER PROPOSITION 64 TO DISMISS AND SEAL OR TO REDUCE A PRIOR MARIJUANA CONVICTION
By a hefty margin of 56%, Prop 64 was passed in California on November 8. It is now legal for Californians over the age of 21 to possess, transport, and buy 28.5 grams (a little over one ounce) of marijuana for personal use. It is also now legal to grow up to six marijuana plants at a time.
So, what about all those Californians who were arrested and convicted for possessing or transporting amounts of marijuana now legal under the law?
Turns out the proposition anticipates that issue and makes substantive provisions to allow such persons to petition the court to dismiss and seal the record. The provisions in the new statute reach further than what is known as an “expungement” under Penal Code Section 1203.4. Under Section 1203.4, the conviction can be dismissed but not sealed.
The new laws added by Proposition 64 (Health & Safety Code section 11361.8), include provisions for reversing any arrest or conviction of marijuana possession or transport of an amount now made legal by Prop 64 or reducing the conviction as follows:
Section 1161.8 provides that a person, who is currently serving a sentence (whether incarceration or probation) under Health & Safety Code sections 11357, 11358, 11359, and/or 11360 may now petition the court to recall or dismiss the sentence. Unless there is clear and convincing evidence that the petitioner is not eligible under this section, the court must grant the petition. Basically, this provision requires the court to resentence the defendant. For someone who might be currently serving a sentence on several convictions, including a conviction or convictions for conduct now legal under the new Prop 64 law, the court must reduce the sentence accordingly and give credit for time already served.
For those who have already served a sentence after conviction under Section 11357, 11358, 11359, and/or 11360, the new law permits a petition to the court to have the conviction dismissed and the record sealed. That is to say, that upon the granting of the petition, it is as if the conviction never happened. (How this will affect the person’s federal record though remains to be seen.)
The court is required to grant the petition under any of the above-described scenarios, unless granting the petition would pose an unreasonable risk of danger to public safety, which means that there is an unreasonable risk that by granting the petition, the petitioner will commit a violent felony. I can’t imagine many scenarios (if any) where that condition would apply in circumstances permitted by this statute. In practical application, the court is required to grant the petition unless there is some egregious circumstance connected to or underlying the marijuana conviction.
For those acts that are now designated as a misdemeanor or infraction (for example possessing more than 28.5 grams or growing more than six plants), the new law allows someone convicted under the old law to petition the court for a redesignation of the conviction as a misdemeanor or infraction as the new statute provides. So, for example, if someone was convicted of felony possession of marijuana under an old law, he or she may now petition the court to have that changed to a misdemeanor or infraction depending on how the particular circumstances of the prior conviction would now be treated under the new law. The court must grant this petition if the conditions are satisfied. This is a very important provision for those with a felony conviction on their record, especially if they were not eligible for expungement under Penal Code 1203.4, because once such a petition is granted, there is no longer the requirement to report the felony when applying for employment.
Over the years, there have been tens of thousands, perhaps hundreds of thousands, of convictions that will be subject to this new law. I suspect the courts will be inundated with petitions to dismiss and seal or reduce the level of conviction as this new law provides. If you have any questions regarding your prior or current marijuana conviction, which could be subject to relief under this law, William Weinberg is available to discuss the matter with you by contacting him at his Irvine office at (949) 474-8008 or by email at firstname.lastname@example.org.