Clean or Reduce Your Record with New Marijuana Laws Under Proposition 64

You certainly know it by now: new law under Proposition 64 permits adults, 21 years of age and order, to legally possess, transport, purchase, consume or share up to one ounce (less than or equal to 28.5g) of marijuana, and up to 8 grams of marijuana concentrates. Recreational sales could start as early as 2018.

Have you suffered a past conviction for a marijuana offense that falls within Proposition 64? There is a provision that might interest you as well. marijuana

As of November 8, 2016, California law has changed with respect to marijuana. California voters adopted the “Control, Regulate and Tax Adult Use of Marijuana Act”, commonly known as the “Adult Use of Marijuana Act”. The act has more four major components:

• It permits adults, 21 years of age and order, to legally possess, transport, purchase, consume or share up to one ounce (less than or equal to 28.5g) of marijuana, and up to 8 grams of marijuana concentrates. It also permits adults 21 and older to grow up to 6 marijuana plants per household out of public view. It also reduces for many marijuana offenses – what previously was a felony in many cases has been changed to a misdemeanor or is a wobbler (capable of being either a felony or misdemeanor). Several misdemeanors are now infractions. Statutes have been created to regulate the public consumption of marijuana

• New Health and Safety Code Section 11361.8 permits persons previously convicted of certain marijuana offenses to obtain a reduced conviction or sentence if they would have received the lesser consequences of the laws now in place when the crime was committed. If the crime was for conduct now legal, there is a provision requiring the court to “dismiss and seal” the record of conviction.

• The new laws establish a comprehensive system to control the cultivation, distribution and sale of nonmedical marijuana and marijuana products.

• The new laws create a marijuana tax that will be imposed upon purchasers.

Petitions to reduce or resentence are expected to take 90 to 120 days because of court backlog and anticipated response. If you wish to have your conviction reduced, file early but be patient. Unlike petitions under Proposition 47, there is no deadline to have your conviction reduced. However, why delay?

www.labarberalaw.com/prop-64.html

Concealed Carry Permits (CCW) just got a lot harder to get. . .

Are you having problems associated with your CCW (carry concealed weapon) permit?

Procrastination is opportunity’s assassin.

Without a CCW – a concealed carry permit, it is illegal to carry a gun in public. Orange County Sheriff’s Department is one of the few departments who had relaxed the standards for issuing concealed weapons permits following the Ninth Circuit Court of Appeals decision in February 2014. In a 2-1 decision, the Ninth Circuit Court of Appeals in San Francisco said in the case Peruta v. San Diego County that San Diego County violated the Constitution’s Second Amendment by requiring residents to show “good cause” to obtain a concealed-weapons permit. “The right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense,” the court said in the majority opinion.

White-stag-holsters

The Ninth Circuit Court of Appeals has agreed to rehear the Peruta case “en banc”. This means that the court considers the issue exceptionally important or wants to maintain uniformity of decisions within the circuit and the case will be heard by at least 11 judges rather than the usual panel of 3. The prior decision no longer has precedential value. The court order for rehearing can be found here.

How long will it take for the Ninth Circuit to rehear the case?

The court has no time limit to rehear cases.  However, it is hopeful the court will rehear it this summer.

9th circuit

What does this mean for the issuance of permits by the Orange County Sheriff’s Department?

The OCSD had previously maintained that if the Peruta case was reheard en banc, it might change its relaxed policy on issuing CCW permits back to the previous “good cause” standards which requires more than just a desire for self defense. Indeed, after notice of rehearing on Peruta, Orange County Sheriff Sandra Hutchens changed the policy on all permits approved after Thursday, March 26, 2015.  Rumor has it if you are in the final processes of obtaining a permit and have a date to pick it up, your pickup appointment will be “rescheduled”.

If I already have a CCW, will I be able to keep my permit?

Yes, all current licenses are lawful and will not be recalled. However, when it is time for renewal, if the court has not yet issued its decision, licensees will likely be required to provide supplemental information and documentation supporting “good cause” according to previous pre-Peruta standards to maintain their permit.

What is the current standard for “good cause” in Orange County pending rehearing?

The OCSD “good cause” standard is articulated in Policy 218.

“1. Criteria that may establish good cause include the following:

  • Specific evidence that there has been or is likely to be an attempt on the part of a second party to do great bodily harm to the applicant.
  • The nature of the business or occupation of the applicant is such that it is subject to high personal risk and / or criminal attack, far greater risk than the general population.
  • A task of the business or occupation of the applicant requires frequent transportation of large sums of money or other valuables and alternative protective measures or security cannot be employed.
  • When a business or occupation is of a high-risk nature and requires the applicant’s presence in a dangerous environment.
  • The occupation or business of the applicant is such that no means of protection, security or risk avoidance can mitigate the risk other than the carrying of a concealed weapon.
  • Personal protection is warranted to mitigate a threat to the applicant that the applicant is able to substantiate.
  • Good cause could include, but not be limited to, documented instances of threats to the personal safety of the applicant, his / her family or employees. Threats to personal safety may be verbal or demonstrated through actual harm committed in the place of work, neighborhood or regular routes of travel for business. The applicant should articulate the threat as it applies personally to the applicant, his / her family or employees.
  • The finding of good cause should recognize that individuals may also face threats to their safety by virtue of their profession, business or status and by virtue of their ability to readily access materials that if forcibly taken would be a danger to society. Threats should be articulated by the applicant by virtue of his / her unique circumstances.
  • Note: These examples are not intended to be all-inclusive they are provided merely for your reference. Also, state and local laws do not prohibit an adult from having a concealed firearm in their home or place of business.”

Here is the statement posted on the OCSD website shortly after the notice of rehearing:

“The Peruta v. County of San Diego panel decision has been withdrawn by a decision to rehear the case en banc in the Ninth Circuit Court of Appeals. New applicants, and those applicants currently in process, will be required to articulate their safety concerns and provide supporting documentation in accordance with the Orange County Sheriff’s Department’s (OCSD) Policy 218. Each application will be evaluated individually based on the merits of the applicant’s good cause statement and the totality of their circumstances. CCW Licenses issued under the previous Peruta standard of good cause are lawful and will not be recalled. Current licensees may be required to provide supplemental information and documentation in support of their good cause statement when they attempt to renew their CCW license. All renewal applications are subject to the legal standards at the time of renewal. Prospective applicants are encouraged to attend their scheduled appointments and submit their CCW applications for consideration. Applications approved after Thursday, March 26, 2015, are subject to the good cause requirement in OCSD Policy 218.”

 

Proposition 47 – Drugs/Theft

Have you suffered a felony conviction for a drug or theft charge that falls within Proposition 47?

As of November 5, 2014, California law has changed and (1) most drug possession for personal use offenses and (2) theft offenses with a loss of less than $950 are now considered misdemeanors. Whether you are on probation, mandatory supervision, PCS or parole, have a pending case, or your case was previously closed and you are no longer under any form of supervision or custodial commitment, this is a very important change in the law that can allow you to significantly change your criminal record. Pending cases are already being impacted and prior convictions can be petitioned to the court to be reduced.

books and gavel

Under Penal Code §1170.18, a person currently serving a sentence, or has completed a sentence, for a conviction of a felony violation of section 11350, 11357 or 11377 of the Health and Safety Code or sections 459.5, 473, 476a, 490.2, 496 or 666 of the Penal Code may be eligible to have the felony conviction designated as a misdemeanor and/or resentenced as a misdemeanor. The conviction will be considered a misdemeanor for all purposes except for possessing firearms.

If you have a conviction on your record that falls under Proposition 47, you are eligible in most cases to have the charge reduced to a misdemeanor. If it is a “closed case” and you have completed the sentence and are not on probation, mandatory supervision, parole, etc, you are entitled to a reduction. If you are still on supervision of any kind, a judge must determine whether reducing the offense to a misdemeanor by resentencing would pose an “unreasonable risk of danger to public safety” in your particular case, which means an “unreasonable risk that the petitioner will commit a new violent felony under [PC 667, subd. (e)(2)(C)(iv)]”.

Theft

Where the value of the theft is $950 or less, Proposition 47 reduces the punishment for most people convicted of forgeries, bad checks, thefts, and shoplifting, from a straight felony or a “wobbler” offense (chargeable as either a felony or misdemeanor), to a straight misdemeanor.

The crimes that are now considered misdemeanors in most cases include:

  • Shoplifting of proprerty with a value of $950 or less (This is a new charge. It was formerly categorized as “misdemeanor petty theft” (which is already a misdemenaor); or “second degree” or “commercial” burglary, which can be charged as either a felony or a misdemeanor (a “wobbler” offense))
  • Forgery, where the instrument has a value of $950 or less and not charged with identity theft
  • Check fraud, where the instrument has a value of $950 or less (unless 3 or more prior convictions for forgery, stolen checks, or passing bad checks)
  • Grand theft of property with a value of $950 or less
  • Receiving stolen property with a value of $950 or less
  • Petty theft with a prior with a value of $950 or less

People who are excluded entirely from these reductions include:

  • Those with a prior conviction for the offenses listed in Penal Code §667(e)(2)(C)(iv) (offenses consisting mainly of murders and attempts, sexually violent offenses, non violent felony child molestation, assault with a machine gun on a peace officer, and possession of a weapon of mass destruction), or
  • Those convicted of an offense requiring regitration under Penal Code §290(c), or
  • a limited number of other specific exceptions appear in some of the statutes defining each offense.

Drug possession

Proposition 47 reduces the punishment for most drug possession offenses for most people convicted of Health and Safety Code §§ 11350, 11357(a), and 11357, from a straight felony or “wobbler”, to a straight misdemeanor.

The crimes that are now considered misdemeanors in most cases include:

  • Possession of a controlled substance (heroin, cocaine, etc.) – H & S Code §11350
  • Possession of a controlled substance (methamphetamine, PCP, ecstasy, etc) – H & S Code §11377(a)
  • Possession of a controlled substance (concentrated cannibis, hash) – H & S Code §11357

People who are excluded entirely from these reductions include:

  • Those with a prior conviction for the offenses listed in Penal Code §667(e)(2)(C)(iv)(offenses consisting mainly of murders and attempts, sexually violent offenses, non violent felony child molestation, assault with a machine gun on a peace officer, and possession of a weapon of mass destruction), or
  • Those convicted of an offense requiring regitration under Penal Code §290(c), or
  • a limited number of other specific exceptions appear in some of the statutes defining each offense.

If you would like to see if your felony conviction can be reduced to a misdemeanor pursuant to the provisions of Proposition 47, you should consult an experienced Orange County criminal defense attorney.In most cases, you only have three years to act from the date the new law went into effect on November 5, 2014.  www.labarberalaw.com