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Amongst the Provisions of Law Contained in California's Proposition 64

By: Sean C Thomson, Esq.

Amongst the provisions of law contained in California’s Proposition 64, is section 11361.8. Entitled “Recall or dismissal of sentence,” the section is an addition to the California Health & Safety Code, and it is designed to provide relief to those who have been convicted of marijuana crimes which would either not be crimes under the new laws, or which would be lesser crimes or crimes which carry lesser sentences. The law applies to those presently serving sentences and those who have already completed their sentences. It applies to both adults and juveniles.

For those presently serving a sentence:

Part (a) of Section 11361.8 pertains to those who are presently serving a sentence for a marijuana crime. Section 11361.8(a) provides:

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 that act.

Cal. Health & Safety Code § 11361.8 (West)

Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4, referenced above, have to do with marijuana possession; marijuana cultivation, harvesting or processing; marijuana possession for sale; marijuana transportation, sale, importation, transfer; possession of marijuana by persons 21 years of age or older; personal cultivation of marijuana; and prohibited smoking, ingesting, possession or manufacture of marijuana.

If someone is presently serving a sentence for a crime of these types, they may file a petition under part (a) of the new law. When a person files a petition for relief under that part, the court presumes that they are eligible for relief. If a prosecutor wishes to, they may attempt to convincethe court that the petitioner doesn’t meet the criteria for relief. That is, a prosecutor may attempt to show that the crime of which the person was convicted is not one that would now be defined under one of the above listed sections. If the prosecutor does not prove that the person is ineligible for relief, the court determines whether granting the petition would pose an unreasonable risk of danger to public safety.

In making that determination, the court may consider the petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes,the petitioner's disciplinary record and record of rehabilitation while incarcerated And “Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.”

If a petition under part (a) is granted, the person is resentenced under the new law pertinent to their crime. If the conduct is no longer deemed a crime, no new sentence will issue. If the conduct is still criminal, but punished less severely, there will be a new sentence imposed. Section 11361.8 provides some explicit safeguards to prevent any unfairness: the new sentence cannot be longer than the old sentence. The petitioner must be given credit for all of the time served on the old sentence against the new sentence. The petitioner’s post incarceration supervision will be one year or whatever the period of post incarceration supervision would have been under the old sentence, whichever it shorter. Further, the court granting relief may also waive the period of post release supervision.

Part (e) of the statute provides relief to people who have already completed a sentence for marijuana possession; marijuana cultivation, harvesting or processing; marijuana possession for sale; or marijuana transportation, sale, importation, transfer, 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.

Petitioners in that circumstance 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 offense or civil infraction.

Like petitioners pursuant to part (a), the court shall presume the petitioner satisfies the criteria in part (e) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria of part (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.

These provisions of California’s new law creates avenues of relief that will help many people convicted under the old laws. However, action must be taken on the part of the petitioner to get this relief. Depending on circumstances, petitioners will need to prepare a strong case to meet and surmount challenges to eligibility that prosecutors will bring. A legal team versed in marijuana law is the key to ensuring that your sentence is reduced or your conviction sealed. Feldmann Nagel, LLC is that legal team. Call today for a free consultation.

For additional consultation on the above or related matters, please contact an experienced professional at Feldmann Nagel, LLC, at 866-477-8616 toll free.