MARIJUANA EXPUNGEMENT

PROP. 64 – MARIJUANA CONVICTIONS REDUCED

Under Prop. 64 “The Adult Use of Marijuana Act”, which was passed by California voters on November 8, 2016, adult use of marijuana has been legalized. Prop 64 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.

PROP. 64 – MARIJUANA CONVICTIONS EXPUNGED  

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.

PROP. 64 LAW

Prop. 64 authorizes courts to “resentence persons who are currently serving a sentence for offenses for which the penalty is reduced by the Act, so long as the person does not pose a risk to public safety, and to re-designate or dismiss such offenses from the criminal records of persons who have completed their sentences as set forth in this Act.”

PROP. 64 – PRIOR CONVICTION NO LONGER A CRIME

If your marijuana offense for which you suffered a conviction is no longer a crime under Prop. 64, then the case will be dismissed and all arrest records, all court records and Dept. of Justice records regarding your offense will be sealed.  

PROP. 64 – PRIOR FELONY CONVICTION NOW A MISDEMEANOR  

If the offense was a felony prior to Prop 64, but was made a misdemeanor under Prop. 64, then your felony conviction will be reduced to a misdemeanor “for all purposes.”  For offenses that are reduced to misdemeanors or infractions, Prop. 64 does not remove them from your record or dismiss/expunge the conviction.  You would still need to file for an expungement.    

PROP. 64 – PRIOR MISDEMEANOR CONVICTION NOW AN INFRACTION

If the offense was a misdemeanor prior to Prop. 64, but was made an infraction in Prop. 64, then your misdemeanor can be reduced to an infraction “for all purposes.”  Under Prop. 64 giving away, offering to give away, transporting, offering to transport, or attempting to transport not more than 28.5 grams of marijuana, other than concentrated cannabis, by a person 18 year of age or older is now an infraction and shall be punished by a fine of not more than one hundred dollars ($100) (HS Code, § 11360(b)).  For offenses that are reduced to misdemeanors or infractions, Prop. 64 does not remove them from your record or dismiss/expunge the conviction.  You would still need to file for an expungement.  

INELIGIBLE FOR PROP. 64 RELIEF

Two common disqualifying exceptions are if you have a “super strike” or if you are required to register as a sex offender per PC290(c).

PROP. 64 AND JUVENILE MARIJUANA OFFENSES

Prop. 64 substantially revises the consequences of marijuana offenses committed by juveniles. Rather than take a penal approach to offenses committed by minors, the act emphasizes education and community service.  Depending on the type of marijuana offense and whether there are any prior convictions, the court may impose drug education of specified lengths ranging between 4 and 10 hours, and community service hours of specified lengths up to 60 hours. Under Prop. 64, a first offense is an infraction, with eight hours of drug education or counseling and up to 40 hours of community service, both to be completed with 60 days. A second or subsequent adjudication is an infraction with 10 hours of drug education or counseling and up to 60 hours of community service, both to be completed within 90 days (§ 11357(a)(1)) Section 11361.1).

PROP. 64 AND JUVENILE MARIJUANA OFFENSE PUNISHMENT

“The drug education and counseling requirements under section 11357, 11358, 11359, and 11360 shall be: (1) mandatory, unless the court finds that such drug education or counseling is unnecessary for the person, or that a drug education or counseling program is unavailable; (2) free to participants, and the drug education provide at least four hours of group discussion or instruction based on science and evidence-based principles and practices specific to the use and abuse of marijuana and other controlled substances.” For good cause, the court may extend the time limit for completing the drug program or counseling for not more than 30 days (§ 11361.1(b)).  Prop. 64 does not provide any consequences for failing to complete the drug program or counseling, or the community service. The treatment and community service options are the only sanctions authorized for juvenile offenders. The court may not impose monetary or custody sanctions on juveniles for violation of the marijuana statutes.

CALIFORNIA MARIJUANA ARREST AND CONVICTION RECORDS – AUTOMATIC SEALING    

Records of an arrest or conviction for personal possession of one ounce or less of marijuana (Health & Safety Code, § 11357 subdivision (b), (c), (d), or (e)) or for giving away, offering to give away, transporting, offering to transport, or attempting to transport not more than 28.5 grams of marijuana (Health & Safety Code, § 11360, subdivision (b)), are automatically sealed and destroyed two years after the date of conviction (or the date of arrest if no conviction). This applies to all records of the arrest, all court records, and all records kept by the California Dept. of Justice (Health & Safety Code, § 11361.5).  One exception is for people who are “incarcerated for an offense subject to this subdivision”.  For such persons, the two-year period shall begin to run from the date the person is released from custody (Health & Safety Code 11357(b)-(e), 11360(b), 11361.5(a)).

BENEFIT OF SEALING OF MARIJUANA ARREST AND CONVICTION RECORDS

Once the records are destroyed the person can deny the conviction or arrest.   Records will not be destroyed if the conviction is on appeal, a prison or jail term remains to be served, a fine is unpaid, probation has yet to be completed, or a bench warrant is outstanding.  

PROP 64 – SUMMARY CHART

21 YEARS OR OLDER AT TIME OF THE OFFENSE

CRIME DESCRIPTION

Age Limits

≤ 28.5 g marijuana

> 28.5 g marijuana

≤ 4 g concentrated cannabis

> 4 g concentrated cannabis

≤ 8 g concentrated cannabis

> 8 g concentrated cannabis

Simple Possession

(HS §11357; HS §11362.1)

Legal

(HS11362.1)

Seal & Destroy Record

Misdemeanor

Legal

(HS11362.1)

Seal & Destroy Record

Legal if ≤ 8 g

(HS11362.1)

Seal & Destroy Record

Legal

(HS11362.1)

Seal & Destroy Record

Misdemeanor

Cultivation

(HS §11358)

Six plants or less is legal (Seal and Destroy Records)

More than six plants is a misdemeanor, but may still be a felony if:

(1) you have a prior “super strike,” or

(2) you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection, or

(4) you diverted public waters or polluted the environment.

Possession with the Intent to Sell

(HS §11359)

Misdemeanor unless one or more of the following exceptions apply (then it may be a felony):

(1) you have a prior “super strike,” or

(2) if you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection, or

(4) you were selling or attempting to sell to someone under the age of 18, or

(5) you are 21 or older and you knowingly hire, employ, or use a person under 21 in unlawfully cultivating, selling, etc. marijuana or concentrated cannabis.

Transports

(HS §11360; HS §11362.1)

Legal

(HS11362.1)

Seal & Destroy Record

See Transport for Sale

See Transport for Sale

See Transport for Sale

Legal

(HS11362.1)

Seal & Destroy Record

See Transport for Sale

Transports for Sale (offers/attempts to transport for sale)

(HS §11360)

Infraction

Misdemeanor

BUT

Felony if:

(1) you have a prior “super strike,” or

(2) if you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection, or

(4) you were transporting out of the state.

Misdemeanor

BUT

Felony if:

(1) you have a prior “super strike,” or

(2) if you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection.

Misdemeanor

BUT

Felony if:

(1) you have a prior “super strike”, or

(2) if you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection, or

(4) you were transporting out of the state.

Misdemeanor

BUT

Felony if:

(1) you have a prior “super strike,” or

(2) if you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection.

Misdemeanor

BUT

Felony if:

(1) you have a prior “super strike,” or

(2) if you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection.

Imports (or offers/ attempts to import) into the State

(HS §11360)

Misdemeanor

BUT

Felony if:

(1) you have a prior “super strike,” or

(2) if you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection.

Felony

Misdemeanor

BUT

Felony if:

(1) you have a prior “super strike,” or

(2) if you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection.

Felony

Felony unless amount is ≤ 4 g

Felony

Give Away (or offers to give away)  for No Compensation

(HS § 11360)

To person < 18

Felony

(HS § 11361)

To person 18-20

Infraction

Misdemeanor unless one or more of the following exceptions apply (then it may be a felony):

(1) you have a prior “super strike,” or

(2) if you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection.

To person 21+

Legal

(HS11362.1)

Seal & Destroy Record

Misdemeanor

BUT

Felony if:

(1) you have a prior “super strike,” or

(2) if you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection.

Legal

(HS11362.1)

Seal & Destroy Record

Misdemeanor

BUT

Felony if:

(1) you have a prior “super strike,” or

(2) if you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection.

Legal

(HS11362.1)

Seal & Destroy Record

Misdemeanor

BUT

Felony if:

(1) you have a prior “super strike,” or

(2) if you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection.

Sells or Offers to Sell

(HS §11360)

To person < 18

Felony

(HS § 11361)

To person 18 +

Misdemeanor unless one or more of the following exceptions apply (then it may be a felony):

(1) you have a prior “super strike,” or

(2) if you are a registered sex offender under PC290(c), or

(3) you have two or more prior convictions under this subsection.

SUPER STRIKES

Penal Code Section

Description

Any Serious or Violent Felony punishable in California by life imprisonment or death.

187

Murder or attempt. (Any homicide or attempt from 187 to 191.5

191.5

Vehicular manslaughter while intoxicated or attempt

209

Kidnap with the intent to violate §261, 262, 264.1, 286, 288, 288a, or 289

220

Assault with the intent to violate §261, 262, 264.1, 286, 288, 288a, or 289

245(d)(3)

Assault with a machine gun on a peace officer or firefighter

261(a)(2)

Rape by force

261(a)(6)

Rape by threat to retaliate

262(a)(2)

Spousal rape by force

262(a)(4)

Spousal rape by threat to retaliate

264.1

Rape in concert by force or violence

269

Aggravated sexual assault of a child

286(c)(1)

Sodomy with child <14 + 10 years age differential

286(c)(2)(A)

Sodomy by force

286(c)(2)(B)

Sodomy by force upon child <14

286(c)(2)(C)

Sodomy by force upon child >14

286(c)(3)

Sodomy with threat to retaliate

286(d)(1)

Sodomy in concert by force…., threat to retaliate

286(d)(2)

Sodomy in concert by force upon child <14

286(d)(3)

Sodomy in concert by force upon child >14

288(a)

Lewd act upon a child under the age of 14

288(b)(1)

Lewd act upon a child by force…

288(b)(2)

Lewd act by caretaker by force…

288a(c)(1)

Oral copulation upon a child <14 + 10 years…

288a(c)(2)(A)

Oral copulation by force

288a(c)(2)(B)

Oral copulation by force… force upon child <14

288a(c)(2)(C)

Oral copulation by force… force upon child >14

288a(d)

Oral copulation in concert by force

288.5(a)

Continuous sexual abuse of a child with force…

289(a)(1)(A)

Sexual penetration by force, etc.

289(a)(1)(B)

Sexual penetration upon a child <14 by force…

289(a)(1)(C)

Sexual penetration upon a child >14 by force…

289(a)(2)(C)

Sexual penetration by threat to retaliate

289(j)

Sexual penetration upon a child <14 + 10 years…

653f

Solicitation to commit murder

11418(a)(1)

Possession of a weapon of mass destruction

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