Prop 64 Passed - May I Change My Prior Marijuana Conviction?

With the passage of Proposition 64, many people have called us asking if they are eligible to have a prior conviction for a marijuana-related conviction reduced from a felony to a misdemeanor, or a misdemeanor to an infraction, or even a misdemeanor simply dismissed (and the conviction set aside).

These convictions may be for a violation of Health and Safety Code § 11357 (possession of marijuana), § 11357(a) (possession of concentrated cannabis), § 11358 (cultivation of marijuana), § 11359 (possession for sale), § 11360 (transportation for sale) and § 11360(b) (furnishing marijuana for sale, transportation).

The answer to the questions asked by our prior clients and potential clients is yes, subject to certain exceptions. That exception is that someone with a prior conviction for a “super strike” (Penal Code § 667(e)(2)(C)(iv), any prior conviction requiring registration as a sex offender (Penal Code § 290(c)), or two or more prior convictions under Health and Safety Code § 11359(b) (age 18 or over) or § 11359(c)(1) - (2) is ineligible.

If one does have one of the eligible prior convictions for reduction or dismissal, one should note that a judge reviewing such a request under Prop 64 is required to presume the applicant qualifies for relief. The prosecutor’s burden to oppose such a request is to show by clear and convincing evidence that the applicant is not qualified.

There are two things the prosecutor can show to oppose such a request. First, the prosecutor can show that the applicant has a prior “super strike,” is a registered sex offender or has two or more prior 11359 convictions. Secondly, the prosecutor can show that granting such a request would be to the detriment of public safety. This second ground is most likely applicable to those applicants who are in jail or prison and who would be released from custody if the motion for reclassification or dismissal is granted.

Plea to or Convicted of this Health & Safety Code Violation

 

New Punishment / Sentence

 

Exceptions

Health & Safety

(H & S) Code § 11357, 28.5 grams or less

Age 21 and older – None, it is legal;

Age 18 to 20 – infraction, $100 fine

Under 18 – infraction, fine, classes, community service

Location of the conduct, i.e. school grounds.

H & S § 11357, more than 28.5 grams

Age 18 and older – Misdemeanor (medical marijuana still a defense);

Under 18 – infraction, fine, classes, community service

 

H & S § 11357 for concentrated marijuana, 8 grams or less

Age 21 and older – legal;

Age 18 to 20 – infraction if 4 grams or less; if more, misdemeanor

Under 18 – infraction, classes, community service

 

Location of the conduct, i.e. school grounds

H & S § 11357, possession on grade school grounds during school hours, when less than 28.5 grams or 4 grams or less of concentrate

Age 18 and older – First offense a misdemeanor with fine; Second offense is misdemeanor with maximum of 10 days county jail

 

H & S § 11357, possession on grade school grounds during school hours, when more than 28.5 grams or more than 4 grams of concentrate

Age 18 and older – Misdemeanor

Under 18 – infraction with fine, classes and community service

 

H & S § 11358 (cultivation of 6 plants or less)

Age 21 and older – legal (see § 11362.1);

Age 18 and older – infraction with fine;

Under age 18 – infraction with classes and community service

 

H & S § 11358 (cultivation of 7 plants or more)

Age 21 and older – Misdemeanor

Under age 21 – infraction with fine

If exceptions apply, it is a wobbler, with 16 months minimum and 3 years maximum if a felony. If defendant is over 18 and certain Water Code or Fish & Game exceptions apply, it is a wobbler.

H & S § 11359 (possession with intent to sell)

Age 18 and older – Misdemeanor (unless defendant licensed to sell)

Under 18 – infraction with classes and community service

If exceptions apply, it is a wobbler, with 16 months minimum and 3 years maximum if a felony.

H & S § 11360 (transportation, sale, furnishing)

Age 21 and older – legal if 28.5 grams or less or 8 grams concentrated or less and the recipient is 21 or older and not furnishing for compensation.

Age 18 and older – if sold for compensation and 28.5 grams or less (8 grams concentrate), it is an infraction;

Age 18 and older and if for compensation and amounts greater than 28.5/8, misdemeanor

If age 18 or under – infraction with classes and community service

If exceptions apply and amount was over 28.5 grams regular or 8 grams concentrate, it is a wobbler, with 2 years minimum and 4 years maximum if a felony.

 

If one has an open case involving any of the above charges and one is not disqualified (i.e. prior “super strike,” 290 registrant or two or more prior 11359 convictions), one should discuss this with one’s attorney and see if he or she will file a motion for reclassification (or dismissal) of a charge. It is good to note that not all of the above charges in the chart above are subject to the three exceptions. Some charges, i.e. Health and Safety Code § 11360 (when it involves possession, transportation or furnishing of less than eight grams of concentrated cannabis) can be reduced or even dismissed even with such prior history.

For more information about Prop 64 and facts about marijuana laws, please click on the following articles:

  1. What Are My Rights to Marijuana Now That Prop 64 Passed?
  2. What Can I Do About My Criminal Record on the Internet When the Court Dismissed My Case?
  3. When Can One Ask the Judge to Reduce a Felony to a Misdemeanor under Penal Code § 17(b)?

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