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How to Petition an Old Cannabis Charge Under California’s Prop. 64

When voters in California passed Proposition 64 they not only created a legal and regulated cannabis market, but also paved the way for low-level cannabis-related crimes to be expunged from criminal records and for the possible release of individuals incarcerated for drug crimes.

The number of individuals potentially affected by this legislation is unknown, but some reports indicate thousands, maybe tens of thousands of Californians could petition for relief.

In an email, Blaine Corren, public affairs analyst for the Judicial Council of California, indicated that the council does not yet know how many people have petitioned for resentencing or to have their charges dismissed but expected they would have “some data… toward the end of January.”

A Nov. 10 memorandum from the Judicial Branch of California lays out the procedure for any individual considering seeking action under Prop. 64’s criminal reform provisions and the applications — the first step in the process — are posted online.

Who is affected?

The possible relief applies to people convicted of cannabis-related crimes that are now legal under the new California law — which allows individuals 21 and older to purchase, possess, transport, obtain or give away without compensation up to 28.5 grams of flower, or up to 8 grams of “concentrated cannabis, including what is contained in marijuana products.” Under the act, adults 18 and older can also possess, cultivate, harvest and dry up to six cannabis plants in a private residence.

And while possession by juveniles is not decriminalized under the law, harsh penal approaches are replaced by education and community service programs. The first offense is adjudicated as an infraction rather than a misdemeanor and, depending on the defendant’s history, can lead to a penalty of 4 to 10 hours of drug education and up to 60 hours of community service. A second offense is still an infraction carrying 10 hours of drug education or counseling and up to 60 hours of community service to be completed within 90 days. This change could be of huge benefit for juveniles arrested shortly before the law’s passage — their lawyer could have argued for an adjournment until after Election Day because their client could be tried under the new regime, saving them a criminal record.

Photo Credit: Mark
Photo Credit: Mark

Petitioning for sentence reduction

After a petition is filed with and reviewed by the court, a judge could rule that a petitioner needs a qualification hearing to determine the petition’s merits. The hearing would determine the petitioner’s eligibility for relief and whether resentencing poses an “unreasonable risk to public safety.” A judge could deny the petition based on that risk.

The memo suggests that the petition should be heard by the judge who levied the original sentence, and if that judge is not available they would designate another to rule on the case. Courts are not obligated to act on any case without a petition.

If a defendant is seeking release from jail, the following issues will be examined by the court to determine the petitioner’s qualification: the defendant’s age at the time of the crime; whether it was on school property; the quantity and nature of the substance; interstate trafficking; and original sentence. Other provisions for release are similar to parole considerations, such as a reentry plan and vulnerability of any victims.

In the memo, the authors — retired Placer County Superior Court Judge J. Richard Couzens and Court of Appeals Presiding Justice Tricia A. Bigelow — lay out answers to some of the more complex questions that could arise under the new code; such as the cases for those with so-called “super strike” offenses — such as firearms and violent crime, and registered sex offenders. Those individuals who violate even the new law might be subject to harsher penalties and may not be eligible for expungement of previous cannabis-related charges.

“If the defendant has been convicted of a ‘super strike,’ that fact alone will not disqualify the defendant from seeking resentencing, but the court certainly may consider the existence of the conviction in determining the defendant’s dangerousness,” the memo reads.

A positive loophole

Allison Margolin, a partner at Margolin and Lawrence specializing in criminal defense, said the measure is already having an impact on many of her clients. She saved all of her cannabis-related cases — about 10 — until after the election because those clients would be tried under the new scheme; some would be only fined and charged with a violation, and others faced no penalty at all.

Moreover, Margolin explained, the petition process might “be better than we expected,” because those forms require the petitioner to state the quantity of cannabis they were busted with — something that is not detailed on plea agreements.

“Our original thinking under the Prop was ‘we’ll just reduce that charge,’” she told Ganjapreneur. “Then I looked at the judicial council form.”

Without having quantity information in the original plea, a petitioner could seek to have the entire conviction set aside. According to Margolin, somebody who was charged with a felony under the old rules and is seeking a reduced misdemeanor charge could argue for the charge to be vacated because there is nothing proving the original charge was felonious. The November memo backs up that strategy and does not permit for any evidence outside of the “record of conviction” to be used in considering petitions.

Margolin suggests that “hundreds of thousands” of people arrested since 1960 are likely to be eligible to have their records assessed but that anyone seeking relief should seek private or public council. Corren said that the Judicial Council would “probably keep a close eye” on the number of applications, noting that the time to determine each petition was dependent on the individual case.

Margolin and Lawrence is hosting a “420 Legal Pop Up” Prop. 64 workshop on Dec. 3 in Goleta, California.

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