DEALING WITH CONVICTIONS WITH PROPOSITION 64

It’s Not Illegal Anymore, You Shouldn’t Have a Record

Having a criminal record in California makes life more difficult. A criminal record can limit you from getting the job you want, obtaining housing, getting professional licenses, legally owning a firearm, qualifying for government programs, receiving student loans, and many other opportunities which would otherwise be available to you. When you have a record for something that is no longer even illegal, it can be especially frustrating!

On November 6, 2016, California voters passed Proposition 64, also known as the Control, Regulate, and Tax Adult Use of Marijuana Act, or the Adult Use of Marijuana Act. Proposition 64 made sweeping changes to California’s marijuana laws, including provisions permitting Californians with certain marijuana-related convictions to immediately apply for expungement and/or sealing.

The requirements for expungement and sealing under PC 11361.8 are fairly easy to satisfy, however, it can be confusing figuring out what type of relief you’re entitled to. In addition, this type of relief is only available for certain marijuana-related crimes, including Possession of Marijuana, Cultivation of Marijuana, Possession of Marijuana for Sale, and Transportation, Distribution, or Importation of Marijuana. In some cases, you can have the conviction expunged, whereas other situations allow you to seal the conviction completely.

This Information Is For You

Since the majority of people reading this aren’t lawyers, we’ve tried to simplify the legal jargon on our website, so regular people may follow along and get the information needed to understand their rights. However, before we get started, we should be clear that some of this information can get complicated, and, in many cases, it’s best to seek the assistance of an experienced lawyer.

To help you understand your rights, our lawyers have developed a tool that can be helpful in figuring out your options. This tool can’t be perfectly accurate in every situation, but our lawyers have invested substantial time and resources working to make it as accurate as possible.

You can get started by using our Secure Eligibility Test, or you can give us a call at (844) 947-3732 to see if our legal staff is available for a free consultation. Be aware that our staff is often busy with current clients and a high volume of calls and appointments. If you’re serious about getting rid of your record, your best bet is to take our Secure Eligibility Test and then schedule an appointment to discuss your results and options.

Can Prop 64 Help You?

If you’ve been convicted of a marijuana-related offense, the requirements of Proposition 64 are typically easy to satisfy. However, Proposition 64 does not cover all marijuana-related offenses. To qualify to seal or expunge your record under Proposition 64, you must have been convicted of one of the following offenses:

• Possession of Marijuana under HS 11357
• Cultivation of Marijuana under HS 11358
• Possession of Marijuana for Sale under HS 11359 or
• Transportation, Distribution, or Importation of Marijuana under HS 11360.

If you were not convicted of one of the above marijuana-related offenses, you will not be eligible for relief under Proposition 64 and should attempt to use a different post-conviction remedy.

• General Requirements to Expunge or Seal Your Conviction Under Prop 64

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  The general rule to expunge or seal a marijuana-related misdemeanor or felony conviction in California is that if it’s no longer illegal, you can likely expunge and seal the offense. But, if the conduct is still illegal, you can likely either expunge or reduce the level of the conviction. Most convictions for the four crimes listed above are eligible for post-conviction relief of some sort, but the offense and circumstances of the conviction will dictate whether that remedy is resentencing or expungement, or re-designation, or dismissal and sealing.

  Have You Completed Your Sentence?

  In deciding the appropriate remedy, the first step is to determine whether you have completed your sentence. Different rules apply based on whether the sentence has been completed or not.

  Situations where a sentence has not been completed for purposes of HS 11361.8 include:

  • If you’re serving a sentence in county jail or prison
  • If you’re serving mandatory supervision under PC 1170(h)
  • If you’re on parole or post-release community supervision or
  • If you’re currently on probation.

  It is important to determine if your sentence has been completed, as this will affect the requirements you must satisfy and what relief may be available.

• General Requirements When Currently Serving Sentences

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  For those serving a sentence, the general requirements that must be satisfied to qualify for resentencing or dismissal under HS 11361.8(a), which include:

  • The resentencing must be for one of the four qualifying offenses listed above, HS 11357, HS 11358, HS 11359, or HS 11360
  • The person must be currently serving a sentence for one of the above qualifying offenses
  • The person “would have not been guilty" of an offense or who would have been guilty of a lesser offense under [Proposition 64] had that act been in effect at the time of the offense” and
  • Granting the petition would not pose an unreasonable risk of danger to public safety.

  The first two requirements are fairly straightforward, but the third requires that you look at the facts and circumstances of the conviction to determine if the same conduct would be either legal or a lesser offense after the passage of Proposition 64—reviewing the section below on Eligible Offenses will help you make this determination.

  Determining Dangerousness

  In terms of deciding the extent of dangerousness, “the court may consider but shall not be limited to” the following type of evidence:

  • Your criminal conviction history, including the types of crimes committed, injury to victims, length of prior prison commitments, and remoteness of the crimes
  • Your disciplinary record and record of rehabilitation while incarcerated and
  • Any other evidence the court, within its discretion, determines to be relevant to deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

  The burden of proof is on the court in determining dangerousness by a preponderance of the evidence. This is a fact-based inquiry but can be problematic for certain violent offenders.

  Available Releif for Those Who Are Currently Serving A Sentence

  If you meet the requirements of HS 11361.8(a) discussed above, you will be eligible for resentencing under the current penalties for the eligible marijuana offenses, which are described in more detail below. Resentencing can be complicated and depends on several facts, circumstances, and rules beyond the scope of this article, but the following will be true if the resentencing is granted:

  • If the resentencing is granted, the offense will be treated as a misdemeanor or infraction thereafter for all purposes, and the felony sentence shall be recalled, restoring all civil rights, including all firearm rights.
  • Sealing of the record is not available to those currently serving their sentence, even if the conduct leading to the offense is no longer criminal. Sealing is only available to those that have completed their sentence for conduct that is no longer criminal.

• General Requirements For Completed Sentences

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  For those who have completed their sentence, there are three general requirements that must be satisfied to qualify for re-designation, expungement, and/or sealing under HS 11361.8(f), which include:

  • The resentencing must be for one of the four qualifying offenses listed above, HS 11357, HS 11358, HS 11359, or HS 11360
  • The person must be currently serving a sentence for one of the above qualifying offenses
  • The person “would have not been guilty" of an offense or who would have been guilty of a lesser offense under [Proposition 64] had that act been in effect at the time of the offense” and
  • Granting the petition would not pose an unreasonable risk of danger to public safety.

  Once again, the first two requirements are straightforward, but the third depends on the circumstances of the conviction. It must be determined whether the same conduct would now be either legal or a lesser offense under Proposition 64.The “Eligible Offenses” section below will help you make this determination. Note that there is no factor relating to dangerousness for those who have completed the terms of their sentence.

• Details Relating To Eligible Offenses

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  When determining whether you’re eligible for relief under Proposition 64, it is critical to understand the changes in legality and sentencing for the four eligible offenses. This analysis is also critical in determining what type of relief you’re entitled to. This is true for both when you’re currently serving a sentence and when you’ve already completed your sentence. Please note that the changes described in this section are applicable to those 18 or older. The effects of Proposition 64 for juveniles are discussed in more detail afterwards.

  To qualify for relief for your conviction, the law requires that you either (i) not have been guilty of an offense; or (ii) you would have been guilty of a lesser offense. To determine this, you must review the specific offenses below, and then compare the legality and level of offense before and after the enactment of Proposition 64.

  Completed Sentences vs. Sentences Still Being Served

  One of the main differences between when you have not completed your sentence (relief under HS 11361.8(b)), and when you have completed the terms of your sentence (relief under HS 11361.8(f)), is your ability to potentially seal the conviction fully. If your sentence is complete and the conduct of your conviction is no longer illegal or punishable as an infraction, you may generally seal your conviction. In contrast, if you are still serving your sentence and the same is true, you will likely be limited to resentencing and having your prior sentence recalled, which is essentially like a felony reduction.

  Making these determinations can be difficult. If you feel that you need additional assistance, please use our law firm’s Secure Eligibility Test, or seek the help of an experienced attorney.

• 1. Possession of Marijuana

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  Prior to Proposition 64: Possession of Marijuana under HS 11357 ranged from an infraction to a misdemeanor, with the following as general penalties for adults:

  • Possession of (i) over 28.5 grams; (ii) marijuana concentrate; or (iii) possession of any amount of either on school grounds, would result in a misdemeanor offense.
  • Possession of fewer than 28.5 grams was considered an infraction, regardless of age.

  After Proposition 64: penalties for Possession of Marijuana under HS 11357 were decreased, with the following as general penalties for adults:

• 2. Cultivation of Marijuana

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  Prior to Proposition 64: Cultivation of Marijuana under HS 11358 was a felony regardless of age or number of plants.

  After Proposition 64: penalties for Cultivation of Marijuana under HS 11358 were decreased, with the following as general penalties for adults:

  • Cultivation of 6 plants or fewer became legal for those 21 and older, and an infraction for those between 18 and 20.
  • Cultivation of more than 6 plants for those over 18 is now a misdemeanor, but becomes a felony if (i) you have a prior super strike; (ii) you’re a registered sex offender; (iii) you have 2 convictions or more for cultivation; or (iv) the offense resulted in intentional diversion of public waters, introduction of harmful chemicals into waters, or otherwise substantial environmental harm.

• 3. Possession of Marijuana for Sale

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  Prior to Proposition 64: Possession of Marijuana for Sale under HS 11359 was a felony regardless of age or amount.

  After Proposition 64: penalties for Possession of Marijuana for Sale under HS 11359 were decreased, with the following as general penalties for adults:

  • Possession of Marijuana for Sale is a misdemeanor regardless of age or quantity, but becomes a felony if (i) you have a prior super strike; (ii) you’re a registered sex offender; (iii) you have 2 convictions or more for cultivation; (iv) the offense occurred in connection with the knowing sale to a person under 18; or (v) you knowingly hired, employed, or used someone under 21 in activities relating to the offense.

• 4. Transportation, Distribution, or Importation of Marijuana

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  Prior to Proposition 64: Transportation, Distribution, or Importation of Marijuana under HS 11360 was a felony unless it was given away and fewer than 28.5 grams of marijuana, which would be a misdemeanor.

  After Proposition 64: penalties for Transportation, Distribution, or Importation of Marijuana under HS 11360 were decreased, with the following as general penalties:

Advantages of Relief Under Proposition 64

How Does Prop 64 Effect Juvenile Offenders?

For juveniles, the changes to the above four marijuana offenses were even more impactful, as penalties previously ranged from infractions for possession of under 28.5 grams, all the way to felonies for offenses like the sale or cultivation of marijuana. The focus on sentencing juveniles is now centered on education and community service rather than convictions for criminal offenses.

After the passage of Proposition 64, the most a juvenile can be charged with for any of these offenses is an infraction. Under HS 11361.5(a), nearly all juvenile qualifying marijuana offenses will be destroyed and sealed two years from the date of conviction, or when the juvenile turns 18. The process of sealing juvenile records through the provisions of Proposition 64 is discussed in more detail on our California Juvenile Record Sealing page.

How Does Prop 64 Effect Non-Juvenile Offenders?

Proposition 64 obviously provides relief in a variety of ways to many Californians with marijuana convictions. The available relief ranges from resentencing and possible release from incarceration all the way to the complete sealing of the criminal record. Further, in most cases, if the qualifying offense is the only reason your firearm rights were taken away, almost all the remedies within Proposition 64 would restore your firearm rights.

The two biggest issues our law firm’s clients encounter relate to obtaining employment and restoring firearm rights, so we’re going to discuss each.

• How Will Proposition 64 Help Me Get A Job?

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  This depends on the type of relief that you’re eligible for, but all of them would be beneficial for employment purposes. If you’re only able to get a resentencing of your conviction, you will have a misdemeanor or infraction on your record that’s likely been dismissed, which is far better than a felony conviction. On the other side of the spectrum, if you’re eligible to fully seal your conviction, it will be eliminated from your criminal record.

  Whichever relief you qualify for under Proposition 64 should drastically improve your employment prospects. California has recently enacted a number of laws making it illegal to discriminate in hiring based on expunged records.

  With the amendment of Section 432.7 of the California Labor Code, an employer may not ask a job applicant for information relating to an arrest that did not result in a conviction, may not ask about diversion programs, and may not even search for non-conviction records. This law prohibits information about non-convictions from being considered as a factor in any aspect of the employment process. However, employers may inquire into an arrest for which there is a pending trial. This new law considers pleas, verdicts, or findings of guilt to be convictions. Regarding juvenile records, employers are prohibited from asking applicants about a juvenile case regardless of result and may not use information from those cases as factors in any aspect of the employment process.

• How Will Proposition 64 Help Me Restore My Firearm Rights?

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  To some degree, this depends on the specific type of relief you’re eligible for under Proposition 64. Unless there is something else on your record restricting your Second Amendment Rights, most of the forms of relief under Proposition 64 would result in a full restoration of your civil rights, which would include firearm rights.

  If the court grants resentencing or re-designation for your offense to be treated as a misdemeanor or infraction, thereafter the crime will be treated as such for all purposes. Since specifically states that the sentence is to be “recalled,” your firearm rights should be fully restored due to a plain reading of PC 1170.18(k). Not all marijuana-related convictions will qualify to be resentenced or re-designated, but Proposition 64 is a great way to restore firearm rights for many Californians with felony marijuana convictions.

  It should be noted that you can almost never restore firearm rights based on federal convictions, and it can be very difficult if your Second Amendment rights were taken away due to a domestic violence conviction. For more information about federal firearm rights and domestic violence charges, the Department of Justice has resources you can find over domestic violence convictions.

  We will go into more detail regarding restoring Second Amendment rights in California on our California Firearm Rights Restoration page, but restoration typically involves both state and federal law that should be handled by an experienced lawyer. The lawyers in our firm regularly handle complex firearm rights restoration issues, so a good first step in exploring whether you can restore your firearm rights would be to take our Secure Eligibility Test. Then, if appropriate, setting up a time to speak with our legal staff about how to proceed.

What You Need to Do to Get Rid of Your Record

If you are tired of having a criminal record hold you back, reach out to us by taking our Secure Eligibility Test or by giving us a call at (844) 947-3732. Our law firm has helped thousands of people with criminal records move on in life, leaving many of the negative effects of a criminal record behind. Our experienced attorneys and legal staff are here to help you figure out what criminal record clearing services best fit your needs, and then help you accomplish your goals. Using our secure, confidential Eligibility Test is the best way to get the process started.

Some of the Potential Benefits of Expunging a Marijuana Conviction in California include:

• Removing a finding of guilt and closing the case on your criminal record to help you get a better job
• Becoming eligible for professional licenses you previously did not qualify for
• Increased eligibility for student loans, housing assistance, and government programs
• Increased eligibility for student loans, housing assistance, and government programs
• Improving your ability to obtain higher-paying job opportunities
• Improving access and admission to college and other educational resources

We Are Here to Help

Each of California's methods for dealing with your criminal record have different requirements and are meant for different circumstances. To move forward, it’s important to determine what California criminal record services are available to you, and then select the services that will provide the greatest benefit. Eastman Meyler, PC is here to help you navigate this very specific area of California criminal law, fight to protect your rights, and assist you in moving forward in life without the effects of a California criminal record.

You can trust that you will get exceptional service from our law firm, as we have an A Rating from the Better Business Bureau, and prestigious attorney rating services such as Thompson Reuters and Avvo list our attorneys as Super Lawyers and Superb Attorneys. Our law firm has attorneys licensed to practice law in all California state courts, provides low price guarantees, and is here to fight for you and put your criminal record behind you!