Clearing Up Marijuana-Related Convictions

Rev.11/16 34

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

• There are three eligibility requirements specified by section 11361.8(e) for redesignation or dismissal of qualified offenses:
• The conviction must be for a crime listed in the Act: sections 11357, 11358, 11359, 11360. 
• The person must have completed the sentence for one of the designated crimes.

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.