The New Face of Justice in California: the Increasing Influence of the Board of State and Community Corrections, a Prop. 47 Update, and Prop. 64 Basics Ellen McDonnell, Reentry Coordinator & Deputy Public Defender Contra Costa Office of the Public Defender

WHAT IS THE BOARD OF STATE AND COMMUNITY CORRECTIONS? The Board of State and Community Corrections (“BSCC”) was established in 2012 and is a board composed 13 appointed members

Independent statutory agency (PC §§6024-6025)

Predecessor agencies: Board of Corrections and Corrections Standards Authority

BSCC RESPONSIBILITIES

The BSCC’s responsibilities include all of the duties and functions of its predecessor agencies, several grant programs transferred from the California Emergency Management Agency, and new responsibilities related to evidence-based programs and practices, data collection and data sharing

Mission: to provide statewide leadership, coordination, and technical assistance to promote effective state and local efforts and partnerships in California’s adult criminal and juvenile justice systems. .

13 MEMBERS OF THE BOARD

• The Chair of the Board is a full-time paid position, appointed by the Governor and subject to Senate confirmation.

• The Secretary of the Department of Corrections and Rehabilitation.

• The Director of the Division of Adult Parole Operations for the Department of Corrections and Rehabilitation.

• A county sheriff in charge of a local detention facility which has a BSCC rated capacity of 200 or less inmates, appointed by the Governor, subject to Senate confirmation.

• A county sheriff in charge of a local detention facility which has a BSCC rated capacity of over 200 inmates, appointed by the Governor, subject to Senate confirmation.

• A county supervisor or county administrative officer. This member shall be appointed by the Governor, subject to Senate confirmation.

• A chief probation officer from a county with a population over 200,000, appointed by the Governor, subject to Senate confirmation.

• A chief probation officer from a county with a population under 200,000, appointed by the Governor, subject to Senate confirmation.

• A judge appointed by the Judicial Council of California.

• A chief of police, appointed by the Governor, subject to Senate confirmation.

• A community provider of rehabilitative treatment or services for adult offenders, appointed by the Speaker of the Assembly.

• A community provider or advocate with expertise in effective programs, policies, and treatment of at-risk youth and juvenile offenders, appointed by the Senate Committee on Rules.

• A public member, appointed by the Governor, subject to Senate confirmation.

BSCC DIVISIONS

County Facilities Construction

Correction Planning & Grant Programs

Facilities Standards & Operations

Standards & Training for Corrections

BSCC COMMITTEES BSCC uses Executive Steering Committees, Standing Committees, and Workgroups to seek advice from a range of stakeholders and subject matter experts on issues pertaining to adult corrections, juvenile justice, and gang problems

The BSCC seeks to ensure that its efforts are:

1) systematically informed by experts and stakeholders with the most specific knowledge concerning the subject matter

2) include the participation of those who must implement a board decision and are impacted by a board decision

3) promote collaboration and innovative problem solving consistent with the mission of the Board

BSCC COMMITTEES State Advisory Committee on Juvenile Justice & Delinquency Prevention

Juvenile Justice Standing Committee

Data and Research Standing Committee

Standing Committee on Gang Issues (currently inactive)

Reducing Racial and Ethnic Disparities (R.E.D.) Subcommittee

Juvenile Justice Data Working Group

ANNUAL REPORTS TO THE LEGISLATURE

AB 1849: High-Risk Sex Offenders on Continuous Electronic Monitoring

2011 Public Safety Realignment Act

California Gang Reduction Intervention and Prevention Program

Community Corrections in California

A Report on the 2012-2014 Biennial Inspection Cycle

Juvenile Justice Crime Prevention Act

Youthful Offender Block Grant

FOCUS ON EVIDENCE-BASED DECISION MAKING

BSCC works in partnership with local corrections systems and assists efforts to achieve continued improvement in reducing recidivism through “evidence-based decision making”

Emphasis on achieving “measurable outcomes” and making sure that the services provided and the resources used are effective

Using research-based and scientific studies to identify interventions that reliably produce significant reductions in recidivism

BSCC FEDERAL & STATE GRANTS Federal Grants

Edward Byrne Memorial Justice Assistance Grant Juvenile Accountability Block Grant Residential Substance Abuse Treatment Program Title II Formula Grant

Tribal Youth Grant Reducing Racial & Ethnic Disparity Grant

State Grants

Mentally Ill Offender Crime Reduction Grant California Gang Reduction, Intervention, and Prevention Program Juvenile Justice Crime Prevention Act Program Prop 47 Pay for Success Grant Project Proud Parenting Program Strengthening Law Enforcement and Community Relations grant Youthful Offender Block Grant

PROP 47 GRANTS BSCC administers the Prop 47 "Safe Neighborhood and Schools Fund" annual savings from reducing incarceration to fund grants for mental health treatment, substance use disorder treatment and diversion programs (Approximately $103 million for 38 months)

AB 1056 recently added housing-related assistance and other supportive services such as job skills training, case management, and civil legal services

LAW ENFORCEMENT ASSISTED DIVERSION “LEAD” GRANTS

• California Senate Bill 843 established a pilot program for diversion to address low-level drug and prostitution crimes

• Allows law enforcement officers to redirect individuals to community-based services, instead of jail and prostitution

• Goal: to improve public safety and reduce recidivism

• Awarding up to $15 Million total to up to 3 jurisdictions

FOUNDED ON SEATTLE LEAD MODEL

4 LEAD PRINCIPLES

• Intensive case management • Prioritizing temporary and permanent housing • Coordination service resources with L.E.A.s • Voluntary and no requirement for abstinence

LEAD ELIGIBLE CHARGES 1) Possession for sale or transfer of a controlled substance where the

circumstances indicate the sale or transfer is intended to provide a subsistence living or to allow the person to obtain or afford drugs for his or her own consumption

2) Sale or transfer of a controlled substance where the circumstances indicate the sale or transfer is intended to provide a subsistence living or to allow the person to obtain or afford drugs for his or her own consumption

3) Possession of a controlled substance or other prohibited substance

4) Under the influence of a controlled substance or other prohibited substance

5) Under the influence of alcohol and a controlled substance or other prohibited substance

6) Prostitution pursuant to subdivision (b) of Section 647

THE LEAD EXECUTIVE STEERING COMMITTEE (ESC)

• In addition to the guiding principles of SB 843, the grant proposal (shaped by the LEAD Executive Steering Committee) included the following approaches:

Guided by "harm reduction" principles Systems change-oriented – a new role for law enforcement

reflecting an integrated approach with collaborative partners and service providers

Reflects a shift from the punitive approach for community safety

to a psycho-social, public health approach

LEAD REFERRALS Pre-Booking Referral

certain identified offenses

• immediate crisis services and intake interview

• voluntary

• not be filed if intake interview completed in 30 days

Social Contact Referral • verification by law enforcement –

(history, direct observation, other reliable basis of information)

• activity occurred within the LEAD area

• prior activity occurred within 24 months

• no pending case in drug court/mental health court

• no existing no-contact order

LEAD SERVICES • Case management

• Housing

• Medical care / Mental health care

• Treatment for alcohol or substance use disorders

• Nutritional counseling and treatment

• Psychological counseling

• Employment training and education

• Civil legal services

• System navigation

RECENT DEVELOPMENTS IN PROP. 47 LAW

PROP 47 OVERVIEW • Passed November 4, 2014 with 58.7% of the vote • Effective Immediately

Findings and Declarations:

“The People enact the Safe Neighborhoods and Schools Act to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K-12 schools, victim services and mental health and drug treatment.”

PRINCIPAL CHANGES Prop 47 created three principal changes to sentencing laws:

1. Reclassified certain theft and drug possession offenses from felonies to misdemeanors.

2. Authorized individuals serving sentences for those offenses to petition for resentencing.

3. Authorized individuals who had completed their sentencing for eligible offenses to file application to reclassify the convictions to misdemeanors.

PROP 47 ELIGIBLE CHARGES

CRIMES AMENDED BY PROP 47 • Commercial burglary of a store during business hours (PC

459/460(b), 459.5)*

• Forgery (PC 470-476)*

• Fraud/Bad Checks (PC 476a)*

• Grand Theft (PC 487, 490.2)*

• Petty Theft/Shoplifting (PC 484, 484/666)

• Receiving Stolen Property (PC 496)*

*For theft charges to be reduced, the amount stolen must not exceed $950

• Simple possession of any controlled substance, including methamphetamine (HS 11377), heroin / cocaine (HS 11350), concentrated cannabis (HS 11357(a))

PROP 47: RESENTENCING VERSUS RECLASSIFICATION

RESENTENCING • PC §1170.18(a)

• For those currently serving sentence in custody or if on “supervision”

• Probation (People v. Garcia (2016) 245 Cal.App.4th 555)

• Post-release community supervision (PRCS) (People v. Morales (2016) 63 Cal.4th 399)

• Parole and mandatory supervision (People v. Garcia (2016) 245 Cal.App.4th 555)

RECLASSIFICATION • PC §1170.18(f)

• For those who have completed their sentence for a conviction

INITIAL ELIGIBILITY SCREENING: WHO QUALIFIES FOR PROP 47 RELIEF?

If the offense qualifies for relief, the next question is whether the client is disqualified due to prior criminal history.

Per PC §1170.18(i) clients are disqualified from Prop 47 if:

• Prior conviction for “super strike” offense per PC §667.5(e)(2)(C)(iv);

OR

• Required to register for offenses listed in PC §290(c) (not disqualified from Prop 47 if required to register under sections vesting courts with discretionary registration)

DO JUVENILE ADJUDICATIONS DISQUALIFY? Unlikely. “An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose.”

W&I §203

But note: In the Prop 36 “Three Strikes Reform” context, a juvenile adjudication for a “super strike” based on conduct after the minor turned 16 does count as a disqualifying prior conviction.

People v. Thurston (2016) 244 Cal.App.4th 644

THE “DANGEROUSNESS” DISQUALIFIER Petitions for resentencing per PC 1170.18(a): If client is serving a sentence and qualifies for Prop 47 relief, the court may deny the petition if the court “determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety”

PC §1170.18(b)

“Unreasonable risk of danger to public safety” means an unreasonable risk that the petitioner will commit a so-called “super strike” – a new violent felony listed in PC 667(e)(2)(C)(iv)

PC §1170.18(c)

THE “DANGEROUSNESS” DISQUALIFIER

• Applies only to resentencings under §1170.18(a), not reclassifications per PC 1170.18(f)

• If client is no longer serving a sentence, the dangerousness disqualifier does not apply

TIMING OF DISQUALIFYING PRIORS

In the Prop 47 context, two courts have held that a person is disqualified from resentencing or reclassification if he or she has a “super strike” conviction that precedes the application for relief – even if the super strike occurred after the Prop 47 offense.

People v. Zamarripa (2016) 247 Cal.App.4th 1179

People v. Montgomery (2016) 247 Cal.App.4th 1385

But see: People v. Stiller (2016) 2 Cal.App.5th 1014 (holding the opposite in the Prop 36 / Three Strikes context)

TIME FRAME TO COMPLETE

RESENTENCINGS AND RECLASSIFICATIONS

Initial statutory time frame: Petitions for resentencing and applications for reduction had to be filed within 3 years of passage: before November 4, 2017, or at a later date upon a showing of good cause.

Penal Code §1170.18(j)

New time frame: Assembly Bill 2765, signed by the Governor last fall, extends the time frame to file petitions and application by five years, to November 4, 2022 (or later if good cause is shown).

CONSPIRACY AND SHOPLIFTING

Prop 47 added Penal Code section 459.5 shoplifting charge and 459.5(b) provides that any act of shoplifting as defined in (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.

People v. Huerta (2016) 3 Cal.App.5th 539 held that entering a commercial establishment with intent to conspire with an accomplice to commit larceny was misdemeanor shoplifting and the prosecution is not permitted to charge conspiracy where a person could be charged with both conspiracy and shoplift.

COMMERCIAL BURGLARY AND SHOPLIFTING

Was defendant entitled to resentencing under Penal Code section 1170.18 on his conviction for second degree burglary either on the ground that it met the definition of misdemeanor shoplifting under Penal Code section 459.5 or on the ground that section 1170.18 impliedly includes any second degree burglary involving property valued at $950 or less?

People v. Gonzales (S231171) Petition for review granted, lead case, 2/17/16

DEFINITION OF “COMMERCIAL ESTABLISHMENT”

Banks? Yes. People v. Abarca (2016) 2 Cal.App.5th 475

Private country club? Yes. People v. Holm (2016) 3 Cal.App.5th 141

Check-cashing stores? Yes. People v. Smith (2016) 1 Cal.App.5th 266, review granted

Employee rest room within commercial establishment? Yes. People v. Hallam (2016) 3 Cal.App.5th 905

High school locker room? No. In re J.L. (2015) 242 Cal.App.4th 1108

Storage unit within a larger storage facility? No. Entry into a locked storage unit was not entry into an open “commercial establishment” under shoplifting statute. People v. Stylz (2016) 2 Cal.App.5th 530

MOTOR VEHICLE THEFT & VEHICLE BURGLARY

Unlawful driving or taking of a vehicle per CVC §10851(a):

Does Prop 47 apply to the offense of unlawful driving or taking a vehicle because it is a lesser included offense of Penal Code section 487(d), and that offense is eligible for resentencing under 1170.18?

To be decided in lead case People v. Page (S230793), case fully briefed oral argument not yet scheduled

Attempted Burglary and Vehicle Burglary:

Neither vehicle burglary nor attempted vehicle burglary are covered under Prop 47

People v. Acosta (2015) 242 Cal.App.4th 521

RECEIVING A STOLEN MOTOR VEHICLE Receiving a stolen motor vehicle per PC §496d:

Numerous cases have held that receiving a stolen motor vehicle in violation of section 496d does not qualify for Prop 47 relief.

All have had review granted and briefing deferred pending decision in People v. Page (S230793 [application of Prop 47 to CVC 10851 offenses] and/or People v. Romanowski (S231405), relating to theft of access car information.

THEFT OF ACCESS CARD INFORMATION

Theft of access card information under Penal Code §484e(d):

Does Prop 47, which reclassifies as a misdemeanor any grand theft involving property valued at $950 or less, apply to theft of access card information in violation of Penal Code section 484e(d)?

To be decided in People v. Romanowski (2015) 242 CA4th 151, rev. granted, lead case, 1/20/16, S231405 (briefing deferred in People v. Cuen (S231107))

USING STOLEN CREDIT CARDS Does entering a commercial establishment with the intent to use a stolen credit card to purchase property under $950 constitute shoplifting per Penal Code section 459.5?

To be decided in People v. Garrett (S236012) and People v. Grayson (S231757) which have briefing deferred pending Gonzalez, Cuen and Romanowski

INTENT TO CASH A FORGED CHECK

Is entering a commercial establishment with the intent to cash a forged check eligible under Prop 47?

The appellate court in People v. Gonzales called this a “non-shoplifting commercial burglary.” Numerous cases have had review granted and briefing deferred pending People v. Gonzalez (S231171).

Various cases looking at the value of an uncashed forged check and at whether the value is the face value (or stated value) of the check.

People v. Franco (S233973) will decide this issue.

Note: People v. Salmorin (2016, 1 Cal.App.5th 738 held that the value of the forged check was the value stated on the check.

FORGERY AND IDENTITY THEFT Penal Code §530.5 and Forgery:

Individuals convicted of both Penal Code section 530.5 and forgery are not eligible to have the forgery reduced under Prop 47

Cases differ on whether convictions must be “transactionally related” for the statutory exclusion to operate

What relationship, if any, must exist between convictions for forgery and identity theft in order to exclude a forgery conviction from sentencing as a misdemeanor under Penal Code section 473, subdivision (b)?

People v. Gonzales (S240044), review granted, lead case, 2/15/17

TRANSPORTATION OF DRUGS FOR PERSON USE

Transportation for personal use is not eligible under Prop 47. People v. Eagle (2015) 246 Cal.App.4th 275.

To be decided by the Supreme Court in People v. Martinez (S231826), dealing with the issue of:

Can defendant use a petition for recall of sentence under Penal Code section 1170.18 to request that the trial court reduce his prior felony conviction for transportation of a controlled substance to a misdemeanor in light of the amendment to Health and Safety Code section 11379?

ENHANCEMENT / STRIKE Offenses with Enhancements The existence of an enhancement that applies to a particular

count does not preclude Prop 47 relief (Sweeney (2016) 4 Cal.App.5th 295 – gang enhancement)

Strikes The fact that an offense is a strike does not disqualify an

individual from Prop 47 relief (Sweeney (2016) 4 Cal.App.5th 295)

PRIOR PRISON CONVICTIONS Prison Priors (PC §667.5(b)):

Is defendant eligible for resentencing on the penalty enhancement for serving a prior prison term on a felony conviction after the superior court had reclassified the underlying felony as a misdemeanor under Prop 47?

To be decided in People v. Valenzuela, review granted, lead case, (S232900)

A felony conviction that prevented a prison prior from “washing out” no longer does so after the felony is reduced per Prop 47. People v. Abdallah (2016) 246 Cal.App.4th 736

PLEA BARGAINS

Prop 47 applies to plea-bargained cases.

T.W. v. Superior Court (2015) 236 Cal.App.4th 646

The prosecution is not permitted to withdraw from the plea bargain and reinstate the original charges.

Harris v. Superior Court (2016) 1 Cal.5th 984

APPLICATION TO JUVENILE COURT

Prop 47 applies to juvenile adjudications.

Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209

BURDEN OF PROOF

Petitioner bears the burden of proving eligibility for Prop 47 relief.

People v. Rivas-Colon (2015) 241 Cal.App.4th 444

People v. Sherow (2015) 239 Cal.App.4th 875

SUSTAINING THE BURDEN OF PROOF

A defendant must state facts justifying relief in the petition.

People v. Sherow (2015) 239 Cal.App.4th 875

A bare allegation that the stolen property did not exceed $950 may be sufficiently specific to merit a hearing.

People v. Perkins (2016) 244 Cal.App.4th 129

But a defendant’s statement under penalty of perjury that the value did not exceed $950 is sufficient proof.

People v. Abarca (2016) 2 Cal.App.5th 475, rev. granted

ORAL MOTION An oral motion may be sufficient to satisfy the statutory requirement of a petition.

People v. Amaya (2015) 242 Cal.App.4th 972

RESENTENCING

A person convicted of both Prop 47-eligible and ineligible offenses is entitled to have the eligible charges reduced – but the court can resentence on the ineligible charges and fix a new total sentence up to the same sentence as before.

People v. Sellner (2015) 240 Cal.App.4th 699

People v. Cortez (2015) 3 Cal.App.5th 308

People v. Roach (2016) 247 Cal.App.4th 178

MAKING A RECORD We have had some big wins and significant losses in the appellate courts

Many issues are still not resolved by the California Supreme Court

Even in the face of negative Court of Appeal authority: Object; make a complete record; preserve the issues Pursue writ relief where appropriate File notice of appeal

WHERE SHOULD YOU FILE THE APPEAL?

The appeal for a Prop 47-reduced charge is filed in the Court of Appeal, not the Appellate Division of the Superior Court.

People v. Rivera (2015) 233 Cal.App.4th 1085

EXCESS CUSTODY CREDITS Excess credits cannot be applied to reduce the one-year misdemeanor parole period.

People v. Morales (2016) 63 Cal.4th 399

Excess credits can be applied to restitution fines.

People v. Morris (2015) 242 Cal.App.4th 94

People v. Pinon (2016) 6 Cal.App.5th 956

At a resentencing, defense counsel should request that any extra days of time credits be credited towards the defendant’s fines and fees under these cases and PC §2900.5, which is now up to $125/day

PROP 47: STATEWIDE IMPACTS • More than 1 million Californians estimated to be eligible for Prop

47 relief

• Almost 280,000 Prop 47 petitions filed statewide to date

• 15,000 fewer incarcerated in California prisons and jails*

• 119,000 fewer felony arrests in the first year*

• 55,000 fewer felony convictions in the first year*

• As many as 33% fewer felony cases in county courthouses*

* These numbers measure incarceration and system impacts in 2014 versus 2015

PROP 47 NEXT STEPS • Lots of work still ahead of us with hundreds of thousands of

reclassifications to complete by 2022

• Many impacted are still not aware of Prop 47 and Clean Slate remedies and the benefit of a PC §1203.4 dismissal

• Connect with a network of Public Defenders across the state working on Prop 47 and Clean Slate

• Encourage clients to apply online to multiple counties with Code For America at clearmyrecord.codeforamerica.org

PROPOSITION 64 OVERVIEW

• Passed on November 8, 2016

• Approved by a 57% margin

• Effective immediately

Findings and Declarations:

Currently in California, nonmedical marijuana use is unregulated, untaxed, and occurs without any consumer or environmental protections. The Control, Regulate and Tax Adult Use of Marijuana Act will legalize marijuana for those over 21 years old, protect children, and establish laws to regulate marijuana cultivation, distribution, sale and use, and will protect Californians and the environment from potential dangers. It establishes the Bureau of Marijuana Control within the Department of Consumer Affairs to regulate and license the marijuana industry.

THE CONTROL, REGULATE AND TAX ADULT USE OF MARIJUANA

ACT 4 MAJOR DIVISIONS: 1. For adults 21 or older: Possess, transport, purchase, consume, or share up to 1 ounce (28.5 grams) of marijuana, and up to 8 grams of marijuana concentrates Grow up to 6 marijuana plants for household out of public view Reduces the penalty for many marijuana offenses 2. Resentencing provision 3. Comprehensive system to control the cultivation, distribution

and sale of nonmedical marijuana and marijuana products 4. Creates a marijuana tax to be imposed on purchaser of

marijuana and marijuana products and creates a separate marijuana tax fund

Because of Prop 64, California law provides that it is not a violation of State or Local law for a person over age 21 to possess and use marijuana in the manners and in the quantity permitted by Health and Safety Code section 11362.1

PROP 64 & JUVENILES • The Act revises the consequences of marijuana offenses

committed by juveniles and focuses on education and community services

• Courts may not impose monetary or custody sanctions on juveniles for violation of the marijuana statutes

• The resentencing and reclassification provisions of Prop 64 apply equally to juvenile delinquency adjudications without a need for litigation. (H&S §11361.8(m))

• Please see the chart on Changes to Criminal Penalties Under Prop 64 (Juveniles) for more information on specific penalties

POSSESSION OF MARIJUANA Possession of Marijuana - H&S §11357

• Up to 28.5 grams of marijuana is legal for those 21 and over per H&S §§ 11357(b); HSC11362.1(a)(1)

• Up to 28.5 grams is punishable by an infraction (max $100 fine) for those who are 18-20

• More than 28.5 grams of marijuana is still a 6-month misdemeanor for those 18 and over under H&S §11357(b)(2))

POSSESSION ON SCHOOL GROUNDS

Possession of up to 28.5 grams of marijuana and/or up to 4 grams of concentrated marijuana - H&S §11357

• 1st offense: misdemeanor with a maximum $250 fine

• 2nd (or subsequent) offense: misdemeanor with a maximum 10 days jail and/or $500 fine

POSSESSION OF CONCENTRATES

Possession of Concentrated Marijuana: H&S Code §11357

Up to 8 grams of concentrated cannabis is now legal for those 21 and over per H&S 11357(a); §11362.1(a)(2)

Unlawful possession of more than 4g of concentrated cannabis is a 6-month misdemeanor for those 18-20 years old per H&S §11357(b)(2)

POSSESSION WITH INTENT TO SELL

Possession with intent to sell marijuana: H&S §11359

• This is now a 6-month misdemeanor, unless exceptions apply.

• If exceptions apply, it is a wobbler (16, 2, 3 years):

• Exceptions are: Prior super strike Registered sex offender under PC 290(c) Two prior convictions under this subsection* Offense occurred in connection with knowing sale or attempted

sale of marijuana to a person under 18 Knowingly hire, employ or use people under 21 to cultivate/sell

marijuana

TRANSPORTATION

Sales/giving away/transportation for sale of Marijuana under H&S §11360

• Legal for those 21 and older to give away or transport (not sell) less than 28.5 grams under subsection (b) of H&S §11360

• Infraction for those 18-20 for the same conduct

• If exceptions apply, it is a wobbler (2,3,4 years):

• Exceptions are: Prior super strike Registered sex offender under PC 290(c) Two prior convictions under this subsection* Involved a sale of marijuana to a person under 18 Involved import into this state or transport out of this state of

more than 28.5 grams

CULTIVATION OF MARIJUANA Cultivation of Marijuana: H&S Code §11358

6 plants or less now legal for those 21 and older, and an infraction for those 18-20 under H&S §11362.1(a)(3)

More than 6 plants is a 6-month misdemeanor, if exceptions apply it is a wobbler (16,2,3) under H&S §11358(c)

Exceptions are: Prior super strike Registered sex offender under PC 290(c) Two prior convictions under this subsection* Offense resulted in intentional division of public waters,

introduced harmful chemicals into waters, or otherwise caused substantial environmental harm to public lands

ADDITIONAL RESTRICTIONS ON CULTIVATION MARIJUANA AT HOME

Infraction with a $250 fine where an adult cultivates no more than 6 plants for personal use but plants are either:

• Visible to the public or

• Not kept in a locked space

Note that under H&S §§ 11362.2 and 11362.4 local ordinances may be enacted which impose additional restrictions that could result in infraction for cultivation at home.

PUBLIC USE INFRACTIONS CREATED BY PROP 64

Prop 64 also created several public use infractions in H&S §11362.3

Smoking or ingesting in public (max $100 fine) Smoking where tobacco prohibited (max $250 fine) Smoking within 1,000 feet of a school, day care or youth center

while children are present (max $250 fine) Possession of open container or package of marijuana while

driving, operating, or riding in vehicle (max $250 fine)

PROP 64: RETROACTIVE PROVISIONS

Similar to Prop 47, Prop 64 provides for retroactive record clearance relief for prior convictions in H&S §11361.8 Petitioner is presumed eligible for clean slate relief, and the prosecutor has to provide "clear and convincing evidence" to rebut that presumption under H&S §11361.8(b) and (f) If a conviction was a result of a plea bargain in which charges were dismissed, and that conviction is subject to Prop 64, the dismissed charges cannot be refiled per H&S §11361.8(d)

APPLICATIONS FOR RECLASSIFICATION/REDUCTION

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 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, 11362.4 as those sections have been amended or added by this Act.

H&S Code §11361.8(a)

THE “DANGEROUSNESS” DISQUALIFIER

• Petitions for resentencing per H&S §11361.8: If client is serving a sentence and qualifies for Prop 64 relief, court may deny the petition if the court “determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.”

• Under Prop 64, “unreasonable risk to public safety” has the same meaning as it does in Prop 47

• Unreasonable risk that the petitioner will commit a “super strike” or a new violent felony listed in PC §667(e)(2)(C)(iv)

ELIGIBILITY FOR PROP 64

Unlike Prop 47, Prop 64 does NOT specifically exclude persons from resentencing or reclassification if they have a prior “super strike” or a prior convictions requiring registration under Penal Code §290

UNLIKE PROP 47, PROP 64 HAS NO SPECIFIED DEADLINE TO APPLY

FOR RELIEF

PROP 64 & FIREARM RIGHTS A Prop 64 reduction is a “misdemeanor or infraction for all purposes” under H&S §11361.8(h). So that means a Prop 64 reduction will likely restore gun rights, since it doesn’t have a specified exception like Prop 47.

DISMISSAL UNDER PROP 64 For any conduct that is now legal under H&S code §§11362.1(a)(1) and (a)(2), those who petition for relief are entitled to a dismissal:

H&S §11357(a) of less than 8g of concentrated cannabis

H&S §11357(b) of less than 28.5g of marijuana

H&S §11358 of less than 28.5g of marijuana

H&S §11360 of transportation of less than 28.5g of marijuana and less than 8g of concentrated cannabis

PRACTICE NOTES CDCR distributed a county by county list of potentially eligible individuals currently in CDCR or on parole

For CDCR resentencings, one must send to CDCR case records a certified copy of the minute order

Judicial Council (optional) forms are available and the permanent form should be available in the fall

PLEASE STAY TUNED FOR HOW TO PROTECT YOUR NON-CITIZEN CLIENTS WHEN SEEKING PROP 64 RELIEF . . .

CONTACT INFORMATION

Ellen McDonnell Deputy Public Defender / Reentry Coordinator Contra Costa Office of the Public Defender 800 Ferry Street, Martinez (925)335-8075 / ellen.mcdonnell@pd.cccounty.us