The Aftershocks of Proposition 64
Proposition 64 marked a historic turning point for California cannabis law. It not only legalized large swatches of cannabis-related behavior for adults 21 years of age and older, but also changed the way that pre-existing crimes could be charged. Specifically, cannabis possession, cultivation, possession for sale, and transport for sale all became misdemeanors, absent particular circumstances. Some behavior is now an infraction, most commonly for individuals under 21 years old. Adults over 21 years old are now allowed to smoke or ingest cannabis or cannabis products, have cannabis accessories, possess, transport, obtain, or give away up to 28.5 grams of flower and eight grams of concentrate, as well as plant, possess, cultivate, harvest, dry, and process six or fewer cannabis plants. Adults may also keep the harvest of their six plants, even if in excess of 28.5 grams, so long as they keep excess locked away in their private residence.
This redesignation of certain behavior from felony to misdemeanor, and from criminal to lawful, affects individuals with old convictions, those still serving time, and those still going through the criminal justice system. In cases where the previously criminal behavior is now lawful, the prior charges are dismissed as legally invalid and the records can be sealed. Excitingly, when a charge is either redesignated or dismissed, that change is “for all purposes” which should result in the reinstatement of rights such as Second Amendment protections.
It has become popular for district attorneys’ offices to issue press releases stating that they are redesignating prior cannabis crimes. This is not a progressive action on their part, and despite the help it might provide in an election year, they are simply following the law. If, like San Francisco, the district attorney is proactively going through old cannabis cases, then give credit where credit is due. If petitions have to be filed to have prior convictions redesignated or dismissed, then call the DA out on trying to get leverage out of a legal duty they have.
Proposition 64 didn’t remove all felony prosecution avenues, though. Each code section that was redesignated from felony to misdemeanor behavior still has specific circumstances that allow for felony prosecution. For instance, if your cultivation violates certain Fish and Game or Water Codes, if your possession for sales had anything to do with minors, or if your transport of cannabis for sale was across state lines, the crime can still be charged as a felony. Also, if you have two other prior convictions of the same code section, the crime can be charged as a felony. Another trick used by law enforcement is to have Fish and Game conduct administrative searches, allowing them to circumvent certain Fourth Amendment protections that would attach to a criminal investigation.
Felony Charges for Cannabis Offenses
There are also several code sections commonly used by the district attorneys to keep cannabis prosecution felonious in the absence of aggravating circumstances. Code sections created to address other controlled substances, such as methamphetamine are often used. Health and Safety Code sections 11366 and 11366.5, which were developed to prevent the running of crack houses, or 11379.6, which was made to punish meth labs, are often used against cannabis activities, specifically so DA’s offices can charge it as a felony. Tully & Weiss recently had a highly politicized case dismissed in Shasta County when a judge acknowledged people using Everclear alcohol mixed with cannabis to create concentrates should not be charged with 11379.6 – the statute used to punish meth labs. This age-old herbal remedy of infused alcohol has been charged like cooking meth all over the state of California, but there is now precedent for this process to be treated the same as making marijuana brownies, which has always been considered a lawful activity for cannabis patients. Also, it is not uncommon for district attorneys to charge a felony conspiracy on top of a misdemeanor such as cultivation.
Of course Proposition 64 wasn’t all leniency. Now that the general behaviors of use, possession, cultivation, and processing are lawful, certain manifestations of that behavior are unlawful. For instance, while adults are allowed to smoke cannabis, they cannot do so while driving a vehicle or within 1,000 feet of a school, day care center, or youth center while children are present (unless on the grounds of a private residence and not detectable where the children are present). There is very little science to back up cannabis DUIs and we expect to see new technology and new case law in this area.
Another common feature of cannabis cases that Proposition 64 did not touch is civil asset forfeiture. Because cannabis is still federally illegal, the cannabis industry is heavily restricted in its interactions with banks and thus it is still largely cash-based. Therefore, when cannabis is seized during a search, quantities of cash are often present, and the DA will usually seek to have the currency forfeited to the state as proceeds from unlawful activities. This procedure is entirely separate from the criminal case and follows civil rules, including civil discovery procedures.
Under Health and Safety Code section 11470, all money furnished or intended to be furnished by any person in exchange for a controlled substance (including cannabis), all proceeds traceable to such an exchange, or all money used or intended to be used to facilitate any violation of a number of Health and Safety Code sections, including common cannabis crimes like possession for sale, transportation, and manufacturing, is subject to forfeiture. In many cases, a criminal conviction is required before the assets may be forfeited. In 2016, California Senate Bill 443 raised the threshold from $25,000 to $40,000, meaning that if the state is seeking to have less than $40,000 forfeited from a defendant, then the defendant must be convicted in the related criminal action. While this change is well intentioned, it means that even if a person is fully acquitted in the criminal case, the state can still seek to forfeit seized assets as long as they are worth more than $40,000.