marijuana legal california, santa cruz criminal lawyerBy John W. Thornton

Marijuana is now legal in California, but subject to a lot of rules. For the ordinary fan of weed, or someone who has loved ones or friends who partake, this is a large step towards keeping them being labeled a criminal for doing something that endangers a bag of Cheetos more than the user, the public, or the neighbor’s dog. 

But what about those folks who have marijuana-related convictions on their records? Well, a lot can be done for many of those folks. Were you caught growing years ago and are considered a felon? Did you sell a bag of bud and get caught? Did you get pulled over in a car with a few pounds and suffered a felony for transportation? One aspect of this new law allows such felons to change those felonies into misdemeanors. One treatise going around summarizes this aspect of the law as follows:

Redesignation Provisions: Completed Sentence 

Under California Law Sections 11361.8(e) - (g) allow persons who have completed their sentence for qualified marijuana offenses to apply to the court that entered judgment in their case for designation of the offense as a misdemeanor or infraction, or dismissal as if the Act would have been in effect at the time the crime was committed.

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Sections 11361.8(e) and (f) provide, in relevant part: "(e) A person who has completed his or her sentence for a conviction under Sections 11357, 11358, 11359, and 11360, whether by trial or open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that Act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the conviction dismissed and sealed because the prior conviction is now legally invalid or redesignated as a misdemeanor or infraction in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by this Act. (f) ... Once the applicant satisfies the criteria in subdivision (e), the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid as now established under the Control, Regulate and Tax Adult Use of Marijuana Act."

The two subsections must be read together. Read alone, subsection (e) would suggest the defendant would be entitled to dismissal and sealing of all convictions covered by the Act, including those which are simply reduced to a misdemeanor or infraction. However, when subdivision (e) is read with subdivision (f), it is clear the enactors intend that the petitioner will be entitled to redesignation of a qualified crime as misdemeanor or infraction, but dismissal and sealing occur only if the qualified offense is no longer a crime under the Act.

A. Eligible Persons

The person "would not have been guilty of an offense or who would have been guilty of a lesser offense under the [Act] had that Act been in effect at the time of the offense." (§ 11361.8(a).) As to some offenses, to meet this element of eligibility, the defendant must either have been between the ages of 18 and 21, or over 21 when the crime was committed. Furthermore, the ability to obtain a reduced sentence may also depend on the type and quantity of marijuana involved. For example, section 11362.1(a)(1) makes it legal for a person over the age of 21 to possess not more than 28.5 grams of marijuana not in the form of concentrated cannabis.

Basic eligibility is established by the petitioner meeting just these three requirements. (§ 11361.8(f).) Unlike Propositions 36 and 47, the Act does not disqualify a person simply because he or she has any particular prior criminal offense, even “super strikes.”

So, if you or someone you know has been labeled a felon for a marijuana-related offense, the new law may provide relief. And you can legally smoke one form of relief while you seek legal relief. Win/win, no? For more information or assistance regarding your drug case, contact our Santa Cruz criminal defense lawyer at 831-426-5800 for a free consultation.