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Proposition 64: A Conviction Relief Mystery

Posted by Jessica McElfresh, Esq. | Feb 12, 2018 | 0 Comments

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Amidst the celebrations following the passage of Proposition 64, criminal justice advocates both new and seasoned looked with pride upon one particular part: conviction relief for many cannabis offenses. Proposition 64 reduced or eliminated criminal penalties for cannabis cultivation, sales, possession with intent to sell, possession, and transportation. Most notably, this change in law was retroactive, meaning people with old convictions could have felonies re-designated as misdemeanors. Fifteen months later, relatively few people – approximately 4,900 – have filed to have their cannabis convictions changed. Why so few?

Part of the reason is the mechanics of how relief works under Proposition 64: it isn't automatic. Instead, someone wanting relief needs to file a form with the court in which he or she was convicted. It's a simple form, usually one to two pages, but for many people, going back to court feels intimidating, depressing, or just too much hassle. Some people even believe that they must have an attorney to file for relief (you do not). Many attorneys in the private bar have gone through their files, contacting old clients and filing for relief on their behalf. Others have offered to file petitions at low cost or volunteered for free clinics. Public defender offices have also held clinics or are filing petitions over time for those they represented. But, it's slow work, dependent on education and outreach, and without dedicated funding. As a result, the relief promised by Proposition 64 has been enjoyed by few.

Is there an easier to get the relief to those who need it? Yes, there are two ways. One, a local jurisdiction can seek to automatically clear old convictions or provide relief. The San Francisco District Attorney's Office is doing exactly that. Other jurisdictions, such as San Diego County, are working to inform people that they are eligible for relief and file for the same as a joint project between the Office of the Public Defender and the Office of the District Attorney. Though such projects are welcome steps that will help people to receive conviction relief, this means that relief from cannabis convictions throughout the state is piecemeal. Indeed, other District Attorney Offices – including Los Angeles County and Mendocino County – will take no action until they receive a filed petition. This leads us to the second, more sweeping path to relief: pass a state law to automatically provide conviction relief to those eligible. That would mean no burden on the defendant to file a petition, and more even relief throughout California. Fortunately, Assembly-Member Rob Bonta has proposed such a law in Assembly Bill 1793.

Until Assembly Bill 1793 or a similar law takes effect, those with prior cannabis convictions will need to seek relief on their own, or in conjunction with an attorney or clinic. Proposition 64 redesignated the following offenses from felonies to misdemeanors, in many cases:

                        Health and Safety Code section 11358 – Cultivation

                        Health and Safety Code section 11359 – Possession with Intent to Sell

                        Health and Safety Code section 11360 – Transportation, Processing, and Sale

Proposition 64 also affected Health and Safety Code section 11357, re-designating possession of marijuana as legal or an infraction in many cases. 

Another marvelous aspect of the relief under Proposition 64 is that those with other convictions remain eligible for relief. Unless the underlying offense involved selling to or employing someone under age 21, or the defendant has been convicted of an offense requiring registration as a sex offender under Penal Code section 290 or of a super strike conviction such as rape, attempted murder, or murder, he or she can likely seek relief for cannabis felony conviction. In simpler English, if you have a felony or misdemeanor for cannabis in California state court, your odds of being eligible for relief are very, very high.

Proposition 64 offers many Californians with cannabis convictions a chance to wipe the slate clean, or at least a lot cleaner. In a perfect world, the law would have provided this relief automatically with no further burden on the defendant. And, we may yet make the relief automatic. In the meantime, please seek relief for your old conviction, if you have one – and tell all your friends.

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