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San Diego Prop 64 Criminal Lawyer
Prior Marijuana Related Offenses Eligible for Relief Under Proposition 64
The specified marijuana related convictions that are eligible for Proposition 64 relief are as follows:
- Health and Safety Code Section 11357:
PRIOR TO Proposition 64:
If you possessed any concentrated cannabis, except as otherwise provided by law, you would be punished by imprisonment in the county jail for a period of not more than six months and/or by a fine of not more than $500 USD.
AFTER Proposition 64:
Possession, transportation, purchase, obtain, give without receiving compensation or process 28.5 grams or less of marijuana and 8 grams or less of concentrated cannabis by a person over the age of 21 years old.
- Health and Safety Code Section 11358:
PRIOR TO Proposition 64:
If you planted, cultivated, harvested, dried, or processed any marijuana or any part thereof, except as otherwise provided by law, you would be punished by imprisonment possessed any concentrated cannabis, you would be punished by imprisonment in the county jail for a period of not more than six months and/or by a fine of not more than $500 USD.
AFTER Proposition 64:
Possession, cultivation, harvest, dry or process six or fewer living marijuana plants and their products by a person over the age of 21 years old.
- Health and Safety Code Section 11359:
PRIOR TO Proposition 64:
If you possessed any marijuana for sale, except as otherwise provided by law, you would be punished by imprisonment in the county jail for a period of not more than six months and/or by a fine of not more than $500 USD. A felony would be punishable by a term of imprisonment in county jail for sixteen months, two years, or three years.
AFTER Proposition 64:
Possession, transportation, purchase, obtain, give away without receiving compensation, use or manufacture any marijuana accessories to a person over the age of 21 years old.
- Health and Safety Code Section 11360:
PRIOR TO Proposition 64:
If you helped or transported, imported, sold, furnished, administered, gave away marijuana, you would be punished by imprisonment in the county jail for a period of not more than six months and/or by a fine of not more than $500 USD. A felony would be punishable by a term of imprisonment in county jail for two, three, or four years.
AFTER Proposition 64:
Possession, transportation, purchase, obtain, give away without receiving compensation, use or manufacture any marijuana accessories to a person over the age of 21 years old.
If you have received a conviction for any one of these specific marijuana related offenses, you are eligible to petition the court for resentencing or a reduction from a felony to a misdemeanor under the Health and Safety Code Section 11361.8.
Understanding Proposition 64
Proposition 64 was enacted to legalize the possession, transportation, and distribution of eight grams of concentrated cannabis or one ounce of marijuana to adults 21 years of age or older. What this means for individuals that have previously been convicted for specified personal use and cultivation of marijuana is that Proposition 64 may offer you relief from the criminal penalties for specified marijuana related offenses. Pursuant to the Health and Safety Code Section 11361.8 there are two types of relief available for prior offenders of specific marijuana related offenses: reduction from a felony offense to a misdemeanor and resentencing.
The Implications of Proposition 64 for Reduction to Misdemeanor Relief
Pursuant to Health and Safety Code Section 11361.8(e) if you have completed your sentence for a conviction under sections 11357, 11358, 11359, and 11360, whether as a result of a plea deal or by being found guilty at trial, and you would not have been guilty of committing an offense or would have otherwise been guilty of a lesser offense had Proposition 64 been in effect at the time the offense took place, you may petition the court that entered the judgment of conviction in your case to have the conviction re-designated as a misdemeanor or an infraction in accordance with sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11352.4. In effect, Proposition 64 allows prior offenders who have been convicted for a marijuana related felony to petition the court that convicted you to have your criminal record amended to what it would have been in Proposition 64 had been in effect at the time of the offense.
The Implications of Proposition 64 for Resentencing Relief
Pursuant to Health and Safety Code Section 11361.8(a) if you are currently serving a sentence for a conviction under sections 11357, 11358, 11359, and 11360, whether as a result of a plea deal or by being found guilty at trial, and you would not have been guilty of committing an offense or would have otherwise been guilty of a lesser offense had Proposition 64 been in effect at the time the offense took place, you may petition the court that entered the judgment of conviction in your case to recall or dismiss your sentence in accordance with sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11352.4. In effect, Proposition 64 allows prior offenders who have been convicted and are serving a sentence for a marijuana related felony to petition the court that convicted you to have your sentence amended to what it would have been in Proposition 64 had been in effect at the time of the offense.
Denial of Proposition 64 Relief
The only times that a petition for relief under Proposition 64 is not granted is when the prosecution opposes your petition for relief and can prove by clear and convincing evidence that you are not in fact eligible for relief under Proposition 64. This evidentiary standard requires the prosecution to present the court with evidence that proves that it is highly probable that the factual contentions of the prosecution’s claim are true. It is a lesser standard of proof than proof beyond a reasonable doubt. Also, the court may deny your petition for relief under Proposition 64, if the judge determines that granting the petition would pose an unreasonable risk of danger to public safety. This occurs when the court considers that by granting your petition for relief under Proposition 64 you will pose an unreasonable risk of committing a new violent felony.
The Best Defense for Proposition 64 Relief
Do not waste any time, contact Monder Law Group today at (619)405-0063, attorney Vik Monder will personally review your conviction and immediately tell you if you are eligible for Proposition 64 relief. If you are we will petition the trial court that sentenced you for a resentencing or dismissal of your prior marijuana related conviction. The application process to petition the court for relief under Proposition 64 is very simple, it only requires your attorney to fill out the following forms. Once the court receives your application for petition it will presume that you are eligible for relief under Proposition 64 and grant the petition to recall or dismiss your sentence as legally invalid.
Sample Proposition 64 Petition Application
Answers to Common Proposition 64 Questions
- How does the Court determine if you pose an unreasonable risk of danger to the safety of the public?
Pursuant to Health and Safety Code Section 11361.8(b) when denying the petitioner relief under Proposition 64, the court in its discretion may consider your criminal history, the extent of injury to the victim, the length of prior prison sentences. Also, your disciplinary history and rehabilitation while you were incarcerated. As well as any other evidence the court, within its discretion, finds relevant in making the determination whether or not granting you a new sentence would result in an unreasonable risk of danger to the safety of the public.
- What are the implications of Proposition 64 for medical marijuana card holders?
The quantity limitations set forth by Proposition 64 do not apply to medical marijuana card holders. Pursuant to Proposition 215 medical marijuana patients with a doctor’s recommendation retain their existing rights to possess and cultivate as much marijuana as they need for personal medical use.
- What happens if you are caught consuming marijuana in a public place?
Marijuana consumption in a public place will result in an infraction and $100 USD fine. If you are caught driving with an open container of marijuana in a moving motor vehicle, this will be considered a driving infraction and result in a $250 USD fine.
- What marijuana related offenses are reduced from felonies to misdemeanors?
If you cultivate over six plans, transport over an ounce, make an illegal sale or distribution for compensation you will be charged with a misdemeanor offense.
