Proposition 64 (Prop. 64) legalized specified personal use and cultivation of marijuana for adults 21 years of age or older; reduced criminal penalties for specified marijuana-related offenses for adults and juveniles; and authorized resentencing or dismissal and sealing of prior, eligible marijuana-related convictions.

Of particular interest to us, however, is the provision in Prop. 64 that allow for persons convicted of marijuana offenses that were felonies to petition the court to be resentenced as misdemeanors. There are certain limitations on the relief, but if you do not have an extensive record the court will grant the reduction.

Former felonies that can be reduced to misdemeanors are:

11360 H&S Sales of Marijuana
11359 H&S Possession for Sales of Marijuana
11358 H&S Cultivation of Marijuana

There are specific Judicial Council forms that has been adopted for the filing of the petitions and applications authorized under Prop. 64. While much of the media coverage of Prop. 64 focused on its impacts on adults, it also substantially impacted the handling of marijuana related offenses for juveniles.

Prop. 64 does not decriminalize marijuana related offenses for minors, but it does amend existing statutes to provide that most marijuana related offenses for minors are infractions (Manufacture of concentrated cannabis under Health and Safety Code section 11379.6 remains a felony, and penalties for offenses related to driving under the influence are also unchanged by Prop. 64).

Additionally, it specifies the penalties that can be imposed by the courts for these infractions, including but not limited to, at least four hours of drug education or counseling, community service, and that these are the only sanctions that can be applied to a minor found to have committed a marijuana related offense.

The number of hours of drug education and counseling and community service required or authorized by Prop. 64 varies based on the nature of the offense and whether it is a first offense or a subsequent offense. These pairings range from four hours of drug education and up to 10 hours of community service for a first-time possession of less than 28.5 grams to 10 hours of drug education and up to 60 hours of community service for a second or subsequent offense such as possession at school, sales, or possession with intent to sell.

Resentencing and redesignation of offense provisions apply to juvenile adjudications. The resentencing and redesignation provisions are set forth in the newly added Health and Safety Code (HS) section 11361.8. These provisions will allow any child with a current or former marijuana related disposition to petition the court for resentencing under the new law, or to have the old offense redesignated as an infraction if it was a misdemeanor or felony previously.

Prop. 64 amends HS section 11361.5 governing the destruction of arrest and conviction records concerning marijuana offenses which currently provides for the destruction court records in simple possession cases. The amended statute does the following: (1) expands the law to make records of most  marijuana related offenses (the sole exception is section 11357.5, which addresses offenses related to synthetic cannabinoids) for juveniles subject to destruction two years from the date of the conviction (or the arrest if no conviction); (2) requires that an offense occurring at a K–12 school be maintained until the offender is 18, at which time they are to be destroyed; and (3) requires the records of these offenses to also be purged from statewide criminal justice databases.

Sealing and Destruction of Court Records

Prop. 64 explicitly provides for the sealing of records of dismissed convictions for persons who have completed their sentences. The court must “seal the conviction as legally invalid.” It also amends existing provisions that require the destruction of arrest or conviction records for specified marijuana-related offenses two years from the date of conviction or from the date of arrest if there was no conviction. Prop. 64 adds arrest or conviction records for concentrated cannabis offenses under Health and Safety Code section 11357(a) to courts’ current record destruction obligations.  It also applies destruction requirements to juvenile records.

Drug Education and Counseling Programs

Courts may also consider the use of local programs that are offered through probation, community-based organizations, schools, youth courts, or juvenile drug courts, should those programs meet the required parameters of service hours, cost, and evidence-based curriculum. School-based programs have been found to be effective in reducing youth drug use and can be ordered by the court.

For example, in Orange County, several juvenile diversion program, offers a 6-hour drug and alcohol education workshop for juveniles and their parents. The program teaches them decision-making skills, help them become aware of their behavior patterns and the consequences of drug use. In Los Angeles County, the Juvenile Alcohol and Drug Education Program involves approximately nine hours of instruction and available for minors between the ages of 12 and 17. Parental participation and youth drug testing is required.

There are additional community-based programs across the state that may also meet the requirements of the proposition. As mentioned previously, many of these programs may exceed the mandated number of treatment hours or provide more intensive services than required.

The petition to expunge, seal conviction(s), and arrest records require several documents to be filed with the court and it is critical that the prosecuting agency is served with the relevant paperwork. Moreover, further settlement talks prior to the court hearing is an effective strategy in ensuring that the court grant the petition. I especially emphasized the expungement and sealing of the juvenile records since criminal “records” impact the minor’s educational and employment opportunities. If this remedy applies to you, email me at directly at [email protected] or call my office at 310-601-7144.

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CategoryLegal Advice