Cannabis Legalization in California is Enabling Former Offenders to Move On with Their Lives
When voters in the Golden State approved legalization of recreational cannabis last November, they also cleared the way for marijuana convictions to be reduced or dismissed from criminal records.
Published on April 27, 2017

"You know that movie The 40-Year-Old Virgin?" jokes Mr. Freeman. "I used to say, 'Damn, I'm the 40-year-old virgin felon.' I never had any conviction or anything before, and then I went from a clean record to being convicted of not just a felony, but a drug felony. And a drug felony seems to be the ultimate scarlet letter."

A father of seven, Mr. Freeman (whose first name has been withheld for his privacy) saw his life unravel after he was busted for possession of marijuana for sale in 2013. He owned a cannabis collective based out of Los Angeles and was caught with nine ounces of weed in his car. "Ever since the conviction, it's been absolutely traumatic on my ability to provide for my family and myself," he says. Having been previously employed in the security and trucking industries, not to mention as a police officer, Mr. Freeman was unable to find work.

"Here I am, a black man, and if you think that for one minute someone who's interested in doing business with me is not going to run my background and possibly discriminate against me because of what's on my record, then you got another thing coming," he says. As a felon, he couldn't even get accepted into a trade school. On top of that, his wife left him after the bust.

"I was a broken person," he says. "I had lived a comfortable life; I took for granted being able to give my kids a sweet sixteen celebration, splurge for them at the prom. Then I wasn't able to do that. I was literally on the verge of homelessness, my house foreclosed on, at times unable to take care of some of my children's basic needs."

While he didn't serve any time in prison, Mr. Freeman was put on probation for four years. "Probation is like going from a productive adult to the status of a child again," he says. You have to ask permission to travel outside a certain geographic area, and each month you have to report your employment status, income, and "pertinent things about yourself that the average adult wouldn't consider disclosing to anyone on an annual basis," he says.

Then Proposition 64, the Adult Use of Marijuana Act, passed in California this past November. Not only does the measure legalize cannabis for adults over 21, but offers those convicted of marijuana crimes the opportunity to reduce or dismiss their criminal records. Anyone who has been or is currently imprisoned, on probation, or on parole can apply for resentencing or redesignation. Under Prop 64, felonies become misdemeanors, and misdemeanors — depending on the amount of weed the client's been charged with and if they've completed their sentence —  can get erased altogether or reduced to infractions.

"I confirmed that those provisions of the bill were true, and I rallied everyone I could to make sure that they voted for it," says Mr. Freeman. "Once it did pass, I said, 'OK, great, now I have to go through the process of having my felony overturned.'" His lawyer, Mike Donaldson, a criminal defense attorney from Riverside, CA, handled the case.

As it turns out, Prop 64 resentencing cases are fairly easy to handle. Upon interviewing more than half a dozen convicted felons, each one confirmed to MERRY JANE how seamless the process was — of course, with the help of an attorney.

"The process can be fast," says Donaldson. "For people who want to get this done quickly, I file a formal noticed motion and request a hearing date before a judge." By doing it this way, the process can be done within 15 to 30 days of filing, though it may take much longer for the Department of Justice to officially update someone's record. For instance, he filed Mr. Freeman's motion around December 15, and the judge granted it on January 6. However they're still waiting on the DOJ update.

The cost of the legal service itself is also fairly affordable, ranging between roughly $500 and $1,500. The California Judicial Council also created a self-help form so that people could do it themselves for free, although it takes longer for an individual's petition to be processed this way ("months," Donaldson says of one client's case) than by requesting a hearing. Donaldson says he has instructions on his website showing people how to fill the form out.

There are two forms of post-conviction relief under Prop 64, Donaldson explains. The first is redesignation and dismissal/sealing, which applies to people who have already completed their sentence. The second is resentencing, which applies to people who are currently serving their sentence for the crime. Each of these options has different standards of eligibility.

To begin, the attorney first looks at the client's criminal history and whether they've completed their sentence, be it jail time or probation, to determine the type of relief under Prop 64 they'd pursue, says Donaldson.

"Old cases are more simple," he says. "What we do is look at what type of conviction that old case is for, be it possession for sale, cultivation, or simple possession, and determine the type of relief a person is eligible to get under Prop 64. If you have an old felony possession of marijuana for sale, now it's a misdemeanor. If you have an old simple possession of marijuana, less than an ounce, you can have that totally dismissed and sealed."

The client is eligible for redesignation not only if they've completed their sentence, but also if they would have been guilty of a lesser crime had Prop 64 been in effect at the time they committed the offense, says Donaldson.

After determining the type of relief a client needs, their attorney simply fills out a form and sends it to the judge and district attorney from the jurisdiction where the case occurred. The redesignation process can be expedited by filing a motion for a formal hearing, as Donaldson did in Mr. Freeman's case, but most for petitions none is required.

The three-page "Petition/Application (Health and Safety Code 11361.8), Adult Crime(s)" asks about the nature of the substance the conviction involved (regular cannabis bud, concentrates, full plants, or other), the quantity of the substance, which health and safety code violation the client had been convicted of, and whether they want a "resentencing/dismissal" if they're currently serving the sentence, or a "redesignation/dismissal/sealing" if they've completed it.

The Form to Freedom - California's Petition for Reduction or Dismissal of Marijuana Convictions

One of Donaldson's clients, for example, is 18 months into three years of probation. He'd been convicted of a felony, but never served any time behind bars. Just like someone with an old conviction, this client can petition the judge to have it reduced to a misdemeanor and place him on summary probation, Donaldson explains. "That's what we can do for active cases," he says.

Perhaps the most complex aspect of the process is determining for redesignation, where the court looks at the petitioner's record of conviction, including plea paperwork, a preliminary hearing transcript, trial transcript, factual bases of plea, the prison packet, and more.

"Let's look at possession of marijuana for sale,” says Donaldson. “Now [under Prop 64], it's a misdemeanor, unless you have two prior possession of marijuana for sale convictions or it involves sale to minors. Say we look at the person's old felony possession of marijuana for sale conviction and the person was a high school student at the time, maybe there were some allegations that he was selling to minors — something like that. Theoretically, if a preliminary hearing or trial transcript reveals that the defendant sold marijuana to minors (or used minors to sell marijuana), then that could render the person ineligible for redesignation.” That's because the standard of review is would the person have been guilty of a lesser offense if Prop 64 was in effect at the time? Selling marijuana to minors is still a felony that can’t be reduced to a misdemeanor, even under Prop 64.

In active cases where the client petitions for resentencing, the only thing that would make them ineligible is if the the district attorney or the government proves that they present a risk to public safety, he adds. For instance, that would mean the client likely has other convictions for violent crimes. However, if someone is out on probation for an active felony marijuana case, it's difficult to argue that he or she is a threat to public safety.

The steps to resentencing may vary slightly depending on the court or the county, but fundamentally it's a simple process of filing a petition that contains information about the case and puts forth reasons for eligibility, says Mathew Higbee, founding attorney at Higbee & Associates. "In short, the law is the same in all counties. However the procedure can vary," he says. "The procedural differences are typically slight. The forms may vary, or how many completed copies of the form that are needed to be filed with the court may vary."  

After filing a petition, the judge almost always grants resentencing, Higbee says. Judges cannot refuse to grant the petition for arbitrary reasons, such as if they're bigoted. The petition is granted or denied based on eligibility alone.

However, in some cases, resentencing isn't as straightforward as a simple reduction or dismissal. A number of Higbee's clients had "expunged" their convictions years before Prop 64 even passed.

Arthur, a former musician, got busted in 1999 when he says cops broke into his Hollywood apartment and found about an ounce of bud. "I was an all-day, every day pot smoker. It was an eighth under an ounce, but that motherfucker lied and he said it was five ounces," says Arthur. After a week in jail, Arthur got three years of probation. "I was a felon, but all I wanted to do was make music," he says. He got his record expunged in 2014, but still mourned his rights to own a gun, run for office, or work for the lotto commision, which remained forfeited for Arthur despite the expungement. When Prop 64 passed, Arthur jumped on the opportunity to reduce his (expunged) felony to a misdemeanor.

So what’s the difference between an expungement and a dismissal? "In California, an expungement traditionally means that the court is removing the record of the conviction from the case, but the case file still exists, so what's left is a record of a dismissed case," explains Higbee. "This is where it gets tricky: No one has a record in the sense that you might think." Records change, depending on who you get them from and what you ask for, be it for employment purposes, background checks, the DMV, and so on. Some companies aren't allowed to report any information about a conviction that's been expunged in California, but others can still report that shadow left by an expunged felony. Expungements can only happen once the client has completed their sentence. Furthermore, even if you expunge your felony, the state still doesn't lift all restrictions. That's one reason why so many formerly convicted felons are still so eager to reduce their crimes to misdemeanors under Prop 64.

"As soon as I can save up enough money, I'm going to buy a goddamn gun," Arthur says. "I gotta tell you, what's going on now in the world, I don't trust anyone or anything. I'm ready for World War III or Armageddon, whatever comes first. I hope it's not that bad, but I'd rather have [a gun] and not need it, than need it and not have it."

Arthur's not the only one motivated by gun rights to reduce his sentence. Dale was selling drugs in 1992 when his girlfriend sold to an undercover cop and their house got raided. A father of eight, Dale took all the blame and was charged with felony possession of marijuana for sale. A couple years before Prop 64 passed, Dale applied to expunge his felony conviction altogether. "I wanted my gun rights back," he says. But since it was a "non wobbler," or an offense that could only be charged as a felony, he couldn't get it reduced to a misdemeanor — until Prop 64. ("It's sort of absurd, when you realize that assault with a deadly weapon is a wobbler offense," notes Donaldson, "which can be reduced to a misdemeanor after successful completion of probation." But pre-64, that didn't even apply to certain cannabis convictions.)

As for Mr. Freeman, he's eligible to erase his criminal record altogether. "Mike Donaldson filed the motion, we went to court, had the felony reduced to a misdemeanor, and my probation was terminated," he says. Then Mr. Freeman went back to court to file another motion to have the case thrown out and his record expunged. The judge granted that motion as well.

"In the interest of justice, misdemeanor cases can be thrown out once you successfully complete the terms of the agreement of probation,” says Mr. Freeman. “There wasn't anything Johnnie Cochran-esque on my part." He made the argument that he had no other violations, followed all the rules on probation, and before that maintained a squeaky clean record for forty years. "I told [the judge] that I did not make a fool out of her when she elected to allow me to go home instead of sending me to jail. I told her that it's time to allow me to repatriate, to give back," says Mr. Freeman. Now, with the court's support, he's just waiting for the Department of Justice to clear the database — a necessary step before he can become gainfully employed again. Following that, he's truly a free man.

Madison Margolin
Madison is a New York/Los Angeles-based writer who specializes in cannabis coverage. Her work has been featured in Playboy, the LA Weekly, and other publications.
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