Proposition 47

Dismissal or Reduction of Marijuana Charges

Under Proposition 47, those either servicing sentences or those previously convicted of Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362. 3, and 11362. 4, can petition the court to dismiss or reduce their charges to a misdemeanor. The court has to grant the petition in most circumstances with limited exceptions.

Health & Safety § 11361.8(a) provides that “[a] person currently serving a sentence for a conviction, whether by trial or by 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 petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal 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.”

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.

Propositions 36 and 47, the Act does not disqualify a person simply because he or she has any particular prior criminal offense. While the existence of “super strikes” may be relevant in determining dangerousness (discussed, infra), the fact that the defendant has committed a “super strike,” or any other crime, will not automatically disqualify him from seeking resentencing.

There Must Be a Petition Filed With Court: Dismissal or Reduction Not Automatic

The resentencing process is initiated by the petitioner with the filing of a petition. Nothing in the Act suggests the court will do this automatically without the request of the petitioner. There is no particular form of petition is specified by the initiative. Although section 11361.8(l) specifies that “[t]he Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section,” nothing in the Act requires the use of Judicial Council forms. Presumably, the petition may be made orally in open court, as in a request for resentencing under Proposition 47. (People v. Amaya (2015) 242 Cal.App.4th 972; People v. Franco (2016) 245 Cal.App.4th 679.)

Unlike Propositions 36 and 47, the Act has no window period for filing for relief.

Right to an Attorney for Petition Filing

A criminal defendant has a Sixth Amendment right to be represented by counsel at all critical stages of the proceedings in which his substantial rights are at stake. (People v. Crayton (2002) 28 Cal.4th 346, 362, citing Mempa v. Rhay (1967) 389 U.S. 128, 134.) Sentencing is a stage at which a defendant has a right to counsel. (See Clemensen v. Municipal Court (1971) 18 Cal.App.3d 492, 499.) In determining whether there is a right to counsel, it may be necessary to distinguish between resentencing proceedings, where a petitioner’s liberty interest is at stake, and redesignation proceedings, where the sentence has been completed. It may be argued that there is no right to appointed counsel in the latter circumstance since it is no longer a “critical stage of the proceedings.” If the right to counsel exists for either procedure, however, entitlement may depend of the particular stage of the proceedings.

This means the court may deny you the right to an appointed attorney. However, you can always hire a private attorney to assist you in getting your marijuana charges dismissed or reduced.

Petition for Dismissal even If Case Has Already Been Reduced under Proposition 47 or Expunged

The fact that a qualified conviction has been dismissed under Penal Code section 1203.4 does not preclude the granting of relief under Proposition 47. (People v. Tidwell (2016) 246 Cal.App.4th 212.) Given the intent of the Act to provide broad relief to persons who have committed designated marijuana offenses, it seems likely Tidwell will apply to petitions under section 11361.8(e).

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