Proposition 64 (Marijuana Offenses) FAQ

  What is Proposition 64?

  What marijuana crimes can be reduced or dismissed and sealed?

  Where it says registered sex offenders can still be charged with felonies for certain marijuana offenses, does that include ALL registered sex offenders?

  Where it says people with Super Strikes may be ineligible for relief, what is a “super strike”?

  What does a Prop. 64 petition do if the judge grants it?

  What doesn’t a Prop. 64 petition do?

  How do I get Prop. 64 relief?

  When do I need to file my Prop. 64 petition?

  How much does it cost?

  Do I need a lawyer?

  What if I want a lawyer?

  Will there be a court hearing? 

  How long does it take to get a decision?

  If I’m in jail and my case is reduced from a felony to a misdemeanor, will I get out of jail?

  If I’m in prison and my case is reduced from a felony to a misdemeanor, will I get out of prison?

  If my case is reduced from a felony to a misdemeanor, will I be on probation or parole when I am released from jail or prison?

  If my case is reduced to a misdemeanor, will I still have to pay restitution? 

  If my felony is reduced to a misdemeanor, can I vote?

  If my felony is reduced to a misdemeanor or infraction, what should I put on a job, school, licensing, or military application if there is a question about whether I have a conviction?

  How does a reduction from a felony to a misdemeanor change benefits like student financial aid or HUD housing?

  If I do not have any felonies on my record, can I serve on jury duty?

  If I have my felony marijuana offense reduced to a misdemeanor, can I have a gun?

  If I have my case(s) reduced to misdemeanors, can I get my DNA out of the DNA database?

  Now that I don’t have a felony, I do not have funding for my drug treatment or mental health treatment.  Where can I go for help with my drug, alcohol, or mental health issues?

  I have questions about my cases and Proposition 64.  Who can I contact for help?

 

What is Proposition 64?

On November 8, 2016, California voters passed Proposition 64 (the Control, Regulate and Tax Adult Use of Marijuana Act (Prop. 64)).  It legalizes the responsible use of marijuana by adults 21 and over and reduces the criminal penalties for most remaining marijuana offenses from felonies to misdemeanors and some misdemeanors to infractions.  Prop. 64 applies to both juveniles and adults.  This guide only covers adults.  If you have questions about how Prop. 64 affects juveniles please contact our Juvenile Delinquency office at (858) 974-5757.

In addition to legalizing the responsible use of marijuana by adults 21 and over, Prop. 64 allows most people previously convicted of most marijuana felonies to have a judge reduce their felony convictions to misdemeanors.  It also allows most people previously convicted of marijuana misdemeanors to have a judge reduce their misdemeanor convictions to infractions.  Finally, it allows some individuals to have their prior convictions dismissed and sealed entirely. 

 

Make sure when reviewing this guide you pay attention to the age ranges.  What is legal, an infraction, a misdemeanor, or a felony depends on how old you were at the time you committed the offense.  Children under the age of 18 are treated differently.  Adults 18 – 20 years old have separate rules.  Finally, adults 21 years old or older have the least restrictive rules.  It is your age at the time you commit the offense, not your age at the time you are convicted in court, that makes a difference. 

 

Prop. 64 did not change California’s law respecting “medical marijuana.”  Indeed, a patient under Proposition 215 (Compassionate Use Act) has an affirmative defense to possess an amount necessary for their medical use, subject to current requirements under state law and/or any local regulation.

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What marijuana crimes can be reduced or dismissed and sealed?

What crimes can be reduced from felonies to misdemeanors or infractions or dismissed and sealed depends on:

·    Your age at the time of the offense;

·    The type of marijuana related crime you were convicted of; and

·    If you are ineligible for Prop. 64 relief because of a disqualifying exception.

        o  Two of the common disqualifying exceptions are if you have a “super strike” or if you are required to register as a sex offender per PC290(c).  For more information on these disqualifiers see “Where is says people with Super Strikes may be ineligible for relief, what is a “super strike?”” and “Where is says registered sex offenders can still be charged with felonies for certain marijuana offenses, does that include ALL registered sex offenders?”

 

Determining if someone is eligible for relief under Prop. 64 can be complicated.  You are encouraged to have a lawyer review your conviction to assess if you are eligible. 

There are two charts which will help answer the question of which crimes can be reduced or dismissed and sealed.  These charts are not designed to be comprehensive advice on what is legal or illegal with regard to marijuana.  They are general guidelines on how Prop. 64 applies to past offenses.  There are very specific laws and different penalties if minors are used in any fashion to commit an offense, if the offense occurred in designated protected areas (e.g. schools), or if cultivation was not pursuant to very specific requirements. 

 

Make sure you are looking at the correct chart for your age.  Click here if you were 21 or older at the time of the offenseClick here if you were 18-20 years old at the time of the offense.   Using the correct table for your age, find the crime for which you were convicted along the left column.  Find the substance (marijuana or concentrated cannabis) and the amount involved in your offense along the top row.  The box where the column and row intersect will tell you if the offense is now:

            1.         Legal – you may be eligible to have the record sealed and destroyed

            2.         An infraction – you may be eligible to have the case reduced to an infraction

            3.         A misdemeanor – if you were convicted previously of a felony, you may be eligible to have the case reduced to a misdemeanor

            4.         A felony – the case is not eligible to be reduced.

 

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Where it says registered sex offenders can still be charged with felonies for certain marijuana offenses, does that include ALL registered sex offenders?

No – it only applies to sex offenders required to register under Penal Code section 290(c).  There are people who are required to register for other reasons.  We encourage you to talk with a lawyer to find out if this applies to you.

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Where it says people with super strikes may be ineligible for relief, what is a “super strike”?

Click here for a list of most of the convictions that are considered “super strikes.”  NOTE: Not all cases that are strikes are “super strikes.”  You should speak with a lawyer to figure out if you have a “super strike.”

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What does a Prop. 64 petition do if the judge grants it?

If the marijuana offense for which you were convicted is no longer a crime under Prop. 64, the case will be dismissed and all arrest records, all court records and the Department of Justice records will be sealed. 

If the marijuana offense for which you were convicted used to be a felony, but is now a misdemeanor, then your conviction will be reduced to a misdemeanor “for all purposes.”

If the marijuana offense for which you were convicted used to be a misdemeanor but is now an infraction, then your misdemeanor will be reduced to an infraction “for all purposes.”

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What doesn’t a Prop. 64 petition do?

For offenses that are reduced to misdemeanors or infractions, Prop. 64 does not remove from your record or dismiss/expunge the conviction.  You should consider filing for a dismissal/expungement if you are eligible.

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How do I get Prop. 64 relief?

The applicant should complete a Prop 64 Petition form for each case separately and submit it to the Superior Court where the conviction occurred for review and decision by the court. 

The petition must also be served on the prosecuting agency.

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When do I need to file my Prop. 64 petition?

There is no deadline.  You may file any time but the sooner the petition is filed, the sooner the court can review your case. 

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How much does it cost?

There is no cost to file a Prop. 64 petition.

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Do I need a lawyer?

Not necessarily.  You can fill out the petition by clicking here.  You will need to know if you are asking for a reduction to a misdemeanor, a reduction to an infraction, or a complete dismissal and sealing of the record.

BUT if you are unsure if your conviction qualifies, if you are unsure what relief to ask for, or if there is something in your record which might make you ineligible, it is a good idea to consult a lawyer.

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What if I want a lawyer?

While you do not necessarily need a lawyer, you may want one.  You may hire a lawyer or our office is able to help you at no cost.  Our experienced attorneys will review your entire record and determine what relief you are eligible for.  Some Prop. 64 petitions are more complicated and the judge needs to see additional information to help make a decision.  Our office can assist you by researching your record, gathering records to show your eligibility, writing petitions, motions and declarations, filing petitions, serving the petition on the prosecutorial agency, and appearing in court, if necessary, to argue for the reduction.

If you would like our office to assist you, fill out and submit the  Fresh Start Program Request for Assistance form. 

You may e-mail, fax, mail, or drop off your request form.   

Office of the Public Defender                      E-mail: Fresh.Start@sdcounty.ca.gov

Fresh Start Program                                   Fax:  (619) 338-4811 (Attn: Fresh Start Program)

450 B Street, Suite 900                              

San Diego, CA  92101

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Will there be a court hearing?

Probably not.  If there is any question about whether your felony case(s) should be reduced, there may be a court hearing. If we are representing you, you may give us permission to appear in court for you so you do not need to attend the hearing.

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How long does it take to get a decision?

It varies depending on how complicated your case and criminal history are.  Once the petition is filed, it can take a matter of days to months for the court to make a decision.

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If I’m in jail and my case is reduced from a felony to a misdemeanor, will I get out of jail?

Maybe.  The maximum jail time for a felony that becomes a misdemeanor under Prop. 64 is 180 days.  However, if you have other cases or charges that are holding you in custody, you will not be released even if you receive a reduction on one or more charges under Prop. 64.

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If I’m in prison and my case is reduced from a felony to a misdemeanor, will I get out of prison?

If you have no other charges keeping you in state prison, you may be released from prison.  If your case is reduced to a misdemeanor, your maximum sentence is no more than 180 days in county jail.  You cannot be sentenced to prison on a misdemeanor, but you can be sentenced to county jail.

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If my case is reduced from a felony to a misdemeanor, will I be on probation or parole when I am released from jail or prison?

Perhaps.  The judge that resentences you has discretion to order up to 1 year of “supervision.”  To illustrate, if you are on formal probation or Post Release Community Supervision and the “supervision” term is greater than one year remaining, the judge will not “add supervision” for your new misdemeanor.  Sometimes no “supervision” is ordered.  (See, HS § 11361.9(c).)  Each case is different.  It can depend on the type of sentence you received before, how much time you have served, and your overall criminal history. 

If you are resentenced, you should receive a Minute Order from the Court before you are released.  The Minute Order will say what happened in Court.  Read it carefully to see if you have been ordered to report to probation or parole when you are released.  If the Minute Order says you need to report on probation or parole, you must report even if you think there has been a mistake.  You will also have to comply with any conditions that are ordered by the Court, probation or parole. 

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If my case is reduced to a misdemeanor, will I still have to pay restitution? 

Yes.  Any restitution orders will remain in full force and effect.  However, your fines may be decreased due to the reduction from felony to misdemeanor.  Please check your Minute Order to see how much you owe.

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If my felony is reduced to a misdemeanor, can I vote?

Probably.  To vote in the state of California, you must be 18 years or older and a state resident.  You can even vote while you are still on probation.  However, you cannot be:

-  in state prison, or

-  on parole.

For more information to obtain an application to register to vote, or to register to vote online, go to:  http://registertovote.ca.gov/

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If my felony is reduced to a misdemeanor or infraction, what should I put on a job, school, licensing, or military application if there is a question about whether I have a conviction?

According to the new law, any felony conviction that is recalled and resentenced or designated as a misdemeanor or infraction is a misdemeanor or infraction “for all purposes.”   

 

For convictions that are dismissed entirely, the court is required to seal the records.  That means you can probably say you were never arrested or convicted for that offense.  (See, HS § 11361.8(h).)  

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How does a reduction from a felony to a misdemeanor change benefits like student financial aid or HUD housing?

In general, it is better to have a misdemeanor than a felony on your record.  For more detailed information, please see:

http://www.abacollateralconsequences.org/search/?jurisdiction=10 or

http://nacdl.org/restoration

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If I do not have any felonies on my record, can I serve on jury duty?

Probably.  The law does not let people serve on juries if they have felony convictions, or if they have committed malfeasance in a public office.

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If I have my felony marijuana offense reduced to a misdemeanor, can I have a gun?

Probably.  Proposition 64 makes any felony conviction that is recalled and resentenced, or designated as a misdemeanor or infraction, a misdemeanor or infraction “for all purposes.”  (See, HS § 11361.8(h).)   You must have the court reduce the conviction before your gun rights may be restored.  If you have any other felony convictions or convictions which took away your gun rights, however, you are still not allowed to have a gun.

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If I have my case(s) reduced to misdemeanors, can I get my DNA out of the DNA database?

Maybe.  See DNA Database Expungement FAQ.

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Now that I don’t have a felony, I do not have funding for my drug treatment or mental health treatment.  Where can I go for help with my drug, alcohol, or mental health issues?

For information about services, you can call the Access and Crisis line at 888-724-7240.   This line is available 24 hours a day, 7 days a week.

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I have questions about my cases and Proposition 64.  Who can I contact for help?

Please call the Office of the Primary Public Defender at (619) 338-4700 and ask to speak to someone from the Fresh Start Program.  The Office of the Primary Public Defender will assist you free of charge—even if you had an attorney from the Office of the Alternate Public Defender, a court appointed panel attorney, and/or you retained an attorney and now cannot afford to pay the attorney for assistance with a Prop. 64 petition.  You may also e-mail a question to Fresh.Start@sdcounty.ca.gov.

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