If you would like to get your marijuana-related conviction reclassified or dismissed or find out if you quality for Prop 64 relief, fill out and submit a CLEAN SLATE application.
1. What is proposition 64?
On November 8, 2016 California Voters passed Prop 64 also known as “The Adult Use of Marijuana Act.”
Prop 64 did not legalize all trafficking or use of marijuana. But it did legalize possession of small amounts at home, reduce some crime from felonies to misdemeanors and others from misdemeanors to infractions, plus it gives grounds to reduce or dismiss prior convictions.
- It is now legal in California for adults over age 21 to possess up to an ounce of marijuana and to grow up to six marijuana plants in their homes.
- As with alcohol, marijuana use in public is restricted, and driving while under the influence of marijuana is illegal.
- It is illegal to sell marijuana without a license, or to import it into or export out of the state.
- Prop 64 will regulate recreational marijuana businesses and impose taxes.
2. When does Proposition 64 take effect?
Proposition 64 took effect November 9, 2016. You can and should seek relief right away.
3. Can I get my San Francisco conviction reclassified as a misdemeanor?
Prop 64 authorizes courts to resentence persons who are currently serving a sentence for offenses for which the penalty is reduced by the Act, so long as the person does not pose a risk to public safety, and to re-designate or dismiss such offenses from the criminal records of persons who have completed their sentences.
4. Can I get my San Francisco Felony reduced to a misdemeanor?
Yes, some Felony convictions related to marijuana can be reduced to a misdemeanor no matter how long ago you suffered the conviction.
If you were convicted of any of the following felony offenses prior to the passage of Prop 64, you can now petition to have your conviction(s) reduced to a misdemeanor.
- Possession of more than 28.5 grams of marijuana or more than 4 grams of concentrated cannabis by a person who is 18 years old or older, is now a misdemeanor punished by a maximum of 6 months in county jail and/or a fine of $500. (Health & Saf., Code, § 11357(b)(2), as revised by Prop 64.)*
- Planting, cultivating, harvesting, drying or processing more than six marijuana plants by a person 18 years old or older is now a misdemeanor, punishable by a maximum of 6 months in county jail and/or a fine of $500. (Health & Saf., Code, § 11358(c), as revised by Prop 64.)*
- Possession of any marijuana for sale by a person 18 years of age or older is now a misdemeanor punished by a maximum of 6 months in county jail and/or a fine of $500. (Health & Saf., Code, § 11359(b), as revised by Prop 64.)*
- Transporting, importing into California, selling, furnishing, administering, or giving away, or offering to transport, import into this state, sell, furnish, administer, or give away, or attempting to import into this state or transport 28.5 grams of marijuana or more, by a person 18 years old or older, is a now a misdemeanor punished by a maximum of 6 months in county jail and/or a fine of $500. (Health & Saf., Code, § 11360(a)(2).)*
- *NOTE – If the person has prior convictions for certain specified offenses, or violated specified environmental laws during the commission of his or her offense, the offense can be a felony punished under Penal Code, § 1170(h).
- ** Other exceptions to relief include 290(c) registration, conviction of a super-strike, sales to person under 18, or employing people under 21, which makes it a 16-2-3 county jail felony.
5. How do I get my felony record changed?
In each county that you have a felony conviction for an eligible offense, you can file a Petition under Prop 64 to request to change your record. For any convictions out of San Francisco please apply for Clean Slate services by coming to the San Francisco Public Defender’s office located at 555 Seventh Street Mon-Fri 8:30am-5:00pm or applying online at www.sfpublicdefender.org, click the Clean Slate link and apply online.
NOTE – Proposition 64 places most of the burden of proof on the prosecutor. To obtain relief under Prop 64, you just need to establish a prima facie case. This means that you simply allege in a petition filed in court that you are entitled to relief under Prop 64. The burden of proof then shifts to the prosecutor, and he or she must prove – by “clear and compelling evidence”– that you do not qualify for a dismissal or reduction under Prop 64.
6. Can I get a misdemeanor marijuana conviction reduced to an infraction?
Yes, the following crimes can now be reduced from misdemeanors to infractions if you petition the court:
- HSC11358 of fewer than 7 plants for personal use at home but (1) visible to the public, or (2) not in locked space. (HSC11362.2(a), HSC11362.4(e))
- HSC11358 of more than 7 plants by someone under 18 (HSC11358(a)/HSC11357(b)(1))
- HSC11358 of more than 7 plants by someone over 18 but under 21 (HSC11358(b))
- Using marijuana in public (HSC11362.3(a)(1))
- Open container of marijuana in vehicle (HSC11362.3(a)(4))
- Using marijuana while operating a vehicle (HSC11362.3(a)(7))
- Using marijuana while a passenger (HSC11362.3(a)(8))
7. What actually happens to my record if the Judge grants my Prop 64 Petition is granted?
If the marijuana offense for which you were convicted is no longer an offense under Prop 64, then the case will be dismissed and all arrest records, all court records and Department of Justice records regarding your offense will be sealed.
If the offense was a felony prior to Prop 64, but was made a misdemeanor under Prop 64, then your felony conviction will be reduced to a misdemeanor “for all purposes.”
If the offense was a misdemeanor prior to Prop 64, but was made an infraction in Prop 64, then your misdemeanor can be reduced to an infraction “for all purposes.”
8. Can I have my gun rights restored under Proposition 64
If your only felony conviction is a marijuana related offense and you are entitled to relief under this section, then a Prop 64 reduction is a “misdemeanor or infraction for all purposes.” So that means a Prop 64 reduction will probably restore gun rights, because it doesn’t have a “no guns” clause like Prop 47 does. Our advice is not to possess a firearm until this issue has been clarified by the courts.
9. Are there any new crimes as a result of Proposition 64?
Yes, the following are now infractions punishable by a fine as a result of Proposition 64
- HSC11362.2(a) – Growing marijuana at home, but visible to public, or not in locked space
- HSC11362.3(a)(1) – Using marijuana in public
- HSC11362.3(a)(2) – Smoking marijuana where smoking is prohibited
- HSC11362.3(a)(3) – Smoking marijuana within 1,000 feet of school, day care center, or youth center
- HSC11362.3(a)(4) – Open container of marijuana while in vehicle
- HSC11362.3(a)(5) – Possessing marijuana on grounds of school, day care center, or youth center
10. Can I lawfully possess marijuana as a result of Proposition 64?
Yes, under certain circumstances.
Most commonly less than 8 grams of concentrated cannabis is legal under HSC11362.1(a)(2). HS 11357(a)
NOTE – Unlawful possession of more than 4 grams of concentrated cannabis is a 6-month misdemeanor under HSC11357(b)(2)
Less than 28.5 grams of marijuana is legal under HSC11362.1(a)(1) HSC11357(b)
NOTE – More than 28.5 grams of marijuana is still a 6-month misdemeanor, but now under HSC11357(b)(2) HSC11357(c)
11. Can I lawfully cultivate marijuana?
Fewer than 7 plants is legal under HSC11362.1(a)(3), but HSC11362.2/HSC11362.4 may impose additional restrictions that could result in infraction HSC11358
More than 6 plants is a 6-month misdemeanor, unless exceptions apply. (HSC11358(c))
NOTE – Exceptions are prior convictions of HSC11358(c), 290(c) registrant, super-strike, violations of specific Fish and Game Code, Water Code, Penal Code, or just abusing public lands, which can make it a 16-2-3 county jail felony