Prop 64 Allows People Convicted of Certain Marijuana Offenses to be Resentenced and Have Their Offense Reduced or Invalidated!

Good news!  If you were convicted of one of many marijuana crimes prior to the passage of Prop 64 (Nov. 2016), you may be eligible to have your conviction reduced to a misdemeanor or an infraction. Not only that, but your conviction could even be declared legally invalid under the new law if what you were convicted of is no longer criminal conduct (for example possession of less than an ounce of weed).

For those whose conduct is still illegal under the new law, your felony marijuana conviction could be reduced to a misdemeanor, or your misdemeanor could be reduced to an infraction under Prop 64 resentencing.

For example, under previous Health & Safety Code section 11359, possession with intent to sell, a conviction for committing this crime was a felony.  Today, for a first offense possession for sale, a person would only be convicted of a misdemeanor under most circumstances.  The newly drafted statute under Prop 64 would also allow the person convicted of possession for sale to get his or her felony conviction reduced to a misdemeanor if s/he would have been convicted of only a misdemeanor today under the new iteration of the law.

If we keep with our example, under the new version of the possession for sale statute, the statute reads as follows for a person with no prior criminal record who does not use a minor in committing the crime (there are prohibitions on eligibility for certain offenders):

Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished as follows:

(a) Every person under the age of 18 who possesses marijuana for sale shall be punished in the same manner provided in paragraph (1) of subdivision (b) of Section 11357.

(b) Every person 18 years of age or over who possesses marijuana for sale shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment…

Therefore, the person who previously would have been convicted of a felony, would now only be guilty of a misdemeanor or infraction.  The Legislature recognized that those who suffered convictions previously under the harsher laws should also be given a clean slate, or at least have their records reflect the severity of the offense as it is defined today.  See below:

Resentencing Under Prop 64

H&S 11361.8(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 that act.

(f) The court shall presume the petitioner satisfies the criteria in subdivision (e) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in subdivision (e). 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.

As you can see, a person, or the person’s lawyer, can petition the court to have prior convictions reduced, or dismissed under Prop 64.  Lastly, people currently serving a sentence for a marijuana crime may also be eligible for resentencing.  If I have to explain why having a misdemeanor conviction on your record is better than a felony, or infraction instead of a misdemeanor, maybe it’s time to give the bong some rest…


  • If you have any questions about whether you are eligible for resentencing under Prop 64, give our law office a call and speak to Attorney Matthew Luzaich about your case for free.

*The information contained in this article is not legal advice and may not apply to your specific case.  It should not be relied upon, and the information may not be up to date or accurate at the time you read it.

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