Category: Proposition 64

In November of 2016, California voters approved Proposition 64, the Adult Use of Marijuana Act (AUMA). Under Proposition 64, adults 21 years of age or older can legally grow, possess, and use cannabis for non-medicinal purposes, with certain restrictions. In addition, beginning on January 1, 2018, AUMA makes it legal to sell and distribute marijuana through a regulated business.

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Marijuana Conviction Resentencing Under California Prop 64

Marijuana Laws

California Proposition 64 (The Adult Use of Marijuana Act – AUMA) approved by California voters in November 2016, authorizes resentencing or dismissal and sealing of prior, eligible marijuana-related convictions in addition to reducing criminal penalties for certain marijuana-related offenses for adults and juveniles.  (Learn more about California Cannabis Law.)

Proposition 64 eliminated or downgraded most cannabis offenses from felonies or misdemeanors to misdemeanors or infractions.  People with a prior conviction for an offense that would have received a lesser or no penalty had Prop 64 been in effect may petition the court for resentencing or dismissal and have their records changed accordingly.

Persons Currently Serving Sentences – A person currently serving a sentence for a conviction of an eligible offense, 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 Proposition 64, may petition the court for resentencing or dismissal of eligible convictions.  The request must be made before the trial court that entered the judgment of conviction in the case.  If the petition satisfies the criteria for resentencing or dismissal of the sentence, the court must grant the petition unless the court determines that granting it would pose an unreasonable risk of danger to public safety.

Persons Who Have Completed Their Sentences – A person who has completed their sentence for a conviction for an eligible offense, 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 Proposition 64, may file an application to have eligible convictions dismissed and sealed, or to have eligible convictions redesignated as misdemeanors or infractions.  The request must be made before the trial court that entered the judgment of conviction in the case.

The California Courts have Judicial Council forms that may be used for the filing of the petitions and applications authorized under Proposition 64.  To see these forms go to California Courts Proposition 64: The Adult Use of Marijuana Act.

There is also a good primer on Prop 64 Marijuana Resentencing by Judge Richard Couzens and Judge Tricia A. Bigelow – see Proposition 64 Adult Use of Marijuana Act Resentencing Procedures.

(Update – On 9/30/18 the California Governor signed Assembly Bill 1793 which establishes a pro-active role in the recall, dismissal and/or a redesignation of a criminal cannabis conviction of an offense for which a lesser offense or no offense could be imposed under AUMA.  For more on recent legislative developments in the area of California Cannabis Law see the California Cannabis Law Legislative Update.)

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Fontana City Sued Over Personal Cannabis Cultivation Restrictions

California Proposition 64 Marijuana Legalization

This month, the City of Fontana was sued over its personal cannabis cultivation restrictions.  On November 8, 2016, California voters approved Proposition 64 (also known as the “Adult Use of Marijuana Act” or “AUMA”) which allows adults 21 and older to cultivate up to six marijuana plants inside their private residence.  While the new law allows cities to regulate indoor personal cultivation, they must do so reasonably and cannot prohibit anyone outright from cultivating cannabis.  (Read more about state cannabis law at California Cannabis Law.)

Some cities are resisting the will of the voters and have adopted cannabis ordinances that are so restrictive they operate as a de facto ban on personal cannabis cultivation.  In Fontana (where Prop. 64 passed with 53.5 percent of the vote), the Mayor and City Council members even boasted that they wanted the Fontana ordinance to be the most restrictive in the state and they hoped it would deter people from cultivating marijuana.

Among other problematic provisions, the Fontana ordinance requires residents to register with the city, undergo a criminal background check, open their home to city officials for an inspection, and pay an expensive fee before obtaining a permit that would allow them to grow marijuana plants in their private home.  If someone cultivates marijuana but fails to obtain the city permit they are subject to a criminal misdemeanor even though personal cannabis cultivation is legal under California state law.

The Drug Policy Alliance and the ACLU of California filed a lawsuit against the City of Fontana challenging the City personal grow ordinance on the ground that it is intended to effectively prevent residents from enjoying the rights granted to them by Proposition 64 (AUMA).  The Fontana ordinance makes it unreasonably difficult and expensive for residents to cultivate marijuana at their private residence as Prop. 64 allows.

“The ACLU of California supported Proposition 64, in large part because of our long-standing policy that possessing or cultivating marijuana for personal use should not be a crime,” Jess Farris, director of criminal justice at the ACLU of Southern California, said in a statement.  “The Fontana ordinance — and other similar ordinances around the state — would criminalize the very conduct Proposition 64 legalized, particularly for people who are ineligible to obtain a permit because of their criminal convictions or their lack of funds to obtain a permit or to dedicate an entire room in their home to cultivation.”

[Update – On November 2, 2018, the Court issued its decision in the case, Mike Harris v. City of Fontana, and ruled against the City of Fontana striking various provisions from the Fontana Ordinance.  The Court also ruled that the cannabis personal grow permit fees currently adopted by the Fontana City Council are disallowed, though subject to reassessment in light of the corrected Ordinance.  Read more about the Court decision in the Fontana personal grow lawsuit.]