Proposition 64 (Adult Use of Marijuana Act)

1

WHAT IS IT?

Proposition 64, known as “Prop 64” and, more officially, as the “Adult Use of Marijuana Act”, is a ballot initiative that the residents of California approved in November 2016.  From a criminal law perspective, Proposition 64 is very important for three reasons:

1. It legalized the possession and use of small amounts of marijuana for people 21 and older,
2. It legalized the sale of marijuana by businesses licensed to do that, and
3. It allowed those convicted for marijuana-related charges to request that their conviction be dismissed (if convicted of a misdemeanor such as Health & Safety Code § 11357, possession of over an ounce of marijuana) or reduced to a misdemeanor (if convicted of a felony such as a violation of Health & Safety Code § 11359 – possession of marijuana for sale).

The full ballot information about Proposition 64 is available here.

II

WHAT CHARGES QUALIFY FOR RELIEF UNDER PROPOSITION 64?

HS § 11357 (possession of a small amount of marijuana or hashish) and HS § 11358 (cultivation of marijuana) are no longer a misdemeanor, provided that you are at least 21 years old (and you are not cultivating more than six plants, in case of HS § 11368).  If you are not 21 years old, violations of HS § 11357 and HS § 11358 are punished as infractions: in other words, you will have to pay a fine.

HS § 11358(c) (cultivation of more than six plants of marijuana), HS § 11359, and HS § 11360 are now punished as a misdemeanor, in most cases.  Read the section immediately below for a list and an explanation of which exceptions apply.

III

DOES EVERYBODY QUALIFY FOR THE RELIEFS INTRODUCED BY PROPOSITION 64?

No.  Under Proposition 64, a violation of HS § 11358 (cultivation of more than six plants of marijuana), HS § 11359 (possession of marijuana for sale), or HS § 11360 (transportation of marijuana for sale) is punished as a felony – and makes you ineligible to have the sentenced to a misdemeanor if you were convicted before Proposition 64 was approved –  if any of the following applies to you:

1. Your criminal record includes a conviction for a “super strike” offense or for an offense that required you to register as a sex offender.
2. You received two convictions for a violation of HS § 11358, HS § 11359, or HS § 11360, respectively.
3. You sold, or attempted to sell, marijuana to an individual whom you knew was a minor, or your cultivation of marijuana resulted in a violation of certain environmental regulations.

IV

HOW DOES RELIEF UNDER PROPOSITION 64 ACTUALLY HELP ME?

If you were convicted for an act that is no longer a crime (E.g., a conviction for HS § 11357), once the conviction is dismissed, you may deny the arrest and the conviction, and no government agency may deny you any opportunity that was precluded to you as result of that arrest or conviction.

If you were convicted for an act that used to be a felony and is now a misdemeanor (E.g., a conviction for HS § 11359), and you are eligible for resentencing, the reduction of your sentence from a felony to a misdemeanor, the crime is now a misdemeanor for all purposes, including restoration of your right to possess a firearm (assuming you don’t have any felony convictions or any other disqualifying conditions such as a misdemeanor conviction for domestic violence.)

V

HOW DO I GET THE RELIEFS AVAILABLE UNDER PROPOSITION 64?

It depends on the County where you received the conviction.  Under Proposition 64, California’s Department of Justice has to notify the local District Attorney’s Offices of all cases in their respective jurisdictions that are eligible for a dismissal of sentence or resentencing.  This, however, doesn’t mean that the various District Attorney’s Offices have the resources to manage their day-to-day workload and to review past marijuana convictions.  For example, the Los Angeles County District Attorney’s Office was able to process the dismissal of approximately 60,000 marijuana convictions by partnering with Code for America, a not-for-profit.  However, the press release does not state when the felony charges (For possession of marijuana for sale, HS § 11359, for example) will be reduced to misdemeanors, for those who are eligible for resentencing.

VI

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