Proposition 64
RC Phillips, DDA (Ret.)
October, 2021
1. Overview
Proposition 64 has made marijuana regulation under California law look a lot like alcohol regulation. Effective immediately, adults over 21 can possess up to an ounce of marijuana or 4 grams of concentrated cannabis. Adults can grow up to 6 plants. Adults can legally smoke or ingest marijuana in private or in licensed establishments. Adults can give marijuana to other adults, but they cannot sell it without a license. As with alcohol, adults cannot use marijuana and drive, or have open containers in their cars. As with alcohol, persons under 21 cannot use or possess marijuana.
It is illegal to grow, process, sell or transport marijuana without a license. Under Proposition 64, however, the state will not begin to issue licenses for production, sale, or on-site consumption until 2018. This means that despite the passage of proposition 64, for the next year it will still be a crime to possess, sell or grow more than the legal limit of marijuana.
Beginning in 2018, the control of marijuana production and sale will fall to various state agencies, including the newly created Bureau of Marijuana Control which will oversee the licensing, taxation, and commercial operation of commercial marijuana in California. The goal of Proposition 64 is to put marijuana into the same state of regulation as alcohol. By regulating marijuana, the initiative strives to reduce serious problems involved with illegal marijuana sales such as accessibility of marijuana to minors, environmental damage caused by marijuana production, violence involved in marijuana robberies, and the dangers of driving under the influence of marijuana. The regulation and research of these issues will be funded by licensing fees and excise taxes on marijuana.
Proposition 64 does not change current laws about medical marijuana use. However, as Prop. 64 takes effect, it will probably reduce the demand for medical marijuana.
The success of California=s efforts to regulate marijuana will depend on enforcement of the new marijuana laws until the state=s regulatory process is up and running. Presumably, the need for criminal prosecution will become increasingly rare as regulatory control becomes more effective over time. Until that time, however, the Alameda County District Attorney=s Office is committed to the task of the fair and reasonable enforcement of criminal laws governing marijuana. The highlights of that law are summarized below, and in the two page chart attached to this P&A handout
2. Lawful Possession and Use:
It is legal under California Law for an adult over the age of 21 to possess up to one ounce of marijuana. It is legal for an adult to smoke or ingest marijuana in a private home or on licensed premises. It is legal for an adult to grow up to 6 plants as long as the plants are not visible to the public.
3. Infractions:
The possession, sale, cultivation, or use of any amount of marijuana by minors under the age of 18 is an infraction regardless of the amount possessed. Any minor who is convicted of such an infraction is required to participate in a special education program about marijuana use.
It is an infraction for an adult under 21 to smoke or ingest marijuana, or to possess less than an ounce. It is an infraction for an adult over 21 to possess more than an ounce of marijuana.
3. Misdemeanor Prosecutions:
Except as noted below, all previous marijuana felonies are now six month misdemeanors. This includes felonies for the cultivation of more than six plants, (H&S 11358(c); possession, for sale of any amount of marijuana (H&S 11359(b)) and sale or transportation for sale of any amount of marijuana (H&S 11360(a)(2).) It is important to note that forfeiture laws apply to these crimes, any marijuana taken in connection with these cases is contraband and can be destroyed, and any money seized is subject to asset forfeiture provisions.
4. Felony prosecutions:
Even after the passage of Prop. 64:
● It is a felony under H&S 11361 to furnish any amount of nonmedical marijuana to a minor, whether or not the furnisher has a license to sell or dispense marijuana. That felony is punishable by 3, 5, or 7 years if the minor is under 14, and by 3, 4, or 5 years if the minor is between 14 and 18.
● It is a felony under H&S 11358 to cultivate more than six plants IF: the defendant is a 290 registrant or has a superstrike; the defendant has two prior H&S 11358 convictions; or the defendant causes environmental damage. That felony is punishable by 16-2-3 in the county jail. (H&S 11358(d).)
● It is a felony under H&S 11359 to possess any amount of marijuana for sale IF: the defendant is a 290 registrant or has a superstrike; the defendant has two prior 11359 convictions; the defendant knowingly intends to sell to a minor; the defendant knowingly uses someone under 21 in the sale or production of marijuana. That felony is punishable by 16-2-3 in the county jail. (H&S 11359(c) &(d).)
● It is a felony under H&S 11360 to sell or transport for sale any amount of marijuana IF the defendant is a 290 registrant or has a superstrike; the defendant has two prior 11360 convictions; the defendant knowingly sells or furnishes marijuana to a minor; the defendant attempts to transport more than an ounce of marijuana or 4 grams of hash into or out of the state. That felony is punishable by 2-3-4 years in the county jail. (H&S 11360(a)(3).)
Questions:
1. Now that most marijuana crimes are misdemeanors, is it possible to get a search warrant to investigate illegal marijuana sales, cultivation or possession for sale?
Yes. Under Penal Code section 1524(a)(3), police officers can obtain a search warrant even during the investigation of a misdemeanor if the property to be searched or seized is in the possession of a person intending to use the property as a means of committing a public offense. Thus, if there is probable cause to believe that a suspect is selling marijuana, possessing marijuana for sale, or cultivating more than the legal limit of marijuana plants, an investigating officer can apply for a search warrant.
2. Can an officer search a car for evidence of a marijuana violation?
Yes. Under Health and Safety Code section 11362.3(a)(4), it is unlawful to: APossess an open container or open package of marijuana or marijuana products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.@ 11362.3(a)(4) is an infraction under section 11362.4(b).
Thus if an officer smells marijuana B burned or unburned B this is a factor an officer can rely on in conducting a probable cause search of a vehicle for evidence of open containers. See People v. Molina (1994) 25 Cal.App.4th 1038, 1042: AThere was no question but that the police were entitled to stop Molina for driving 65 miles per hour in a 45 mile per hour zone. . . . There was no question but that, once he noticed the odor of fresh beer, Officer Petersen had probable cause to believe that an offense was being committed. The officers, therefore, were entitled to search the passenger compartment of the truck, including any containers therein, for open containers of alcohol.@
3. Isn=t there a conflict between H&S sections 11358(c) and 11362.4(e)?
As to marijuana plants grown in a private home, section 11362.4(e) makes it infraction to grow more than 6 plants at a time. Section 11358(c) makes it a misdemeanor to grow more than 6 plants anywhere else. This does not mean that a person can grow unlimited amounts of marijuana in the home: clearly someone growing more than 100 plants at home is not cultivating those for personal use, and there is thus strong evidence of sale or possession of sale. The decision whether to prosecute someone for cultivation of marijuana in a private home will probably depend on a number of factors: the number of plants and other traditional indications of possession for sale: large quantities of cash, pay owe sheets, heavy foot traffic and so on.
4. Can defendants with pending marijuana felonies or past marijuana convictions have their charges reduced?
Yes. The process for reduction or resentencing is almost identical to the process for reduction/resentencing in Prop. 47 cases. There are some significant exceptions:
a. As to Prop 64 cases, there=s no need for a hearing.
b. The defendant is presumed eligible for reduction unless the prosecution proves by clear and convincing evidence that he is not. (By contrast in Prop 47 cases. case law provides that the defendant has the burden of showing eligibility.)
As a practical matter in pending marijuana felonies or past convictions, we will not be able to meet that burden unless the defendant has disqualifying prior convictions.
c. If the defendant=s felony is reduced to a misdemeanor under Proposition 64, that previous felony marijuana conviction does not prevent him from owning a firearm.
NEXT WEEK: Prop 63 and more new laws
Suggestions for future shows, ideas on how to improve P&A, and other comments or criticisms should be directed to Mary Pat Dooley at (510) 272-6249, marypat.dooley@acgov.org Technical questions should be addressed to Gilbert Leung at (510) 272-6327. Participatory students: MCLE Evaluation sheets are available on location and certificates of attendance are constructively maintained in your possession in the Ala. Co. Dist.Atty computer banks.
Quick Review of Proposition 64.
Citations to Health and Safety Code unless otherwise specified
When is possession of marijuana legal?
Section
Quantity
Conduct
21 & over
18-20
Under 18
11362.1(a)(1)/(2)
Up to 1 oz mj or 8 oz hash
Possess,process, transport, purchase, give without compensation
Legal
Infraction
Infr
11362.1(a)(3)
up to 6 plants
cultivate
Legal
Infr
Infr
11362.1(a)(4)
smoke, ingest
Legal
Infr
Infr
11362.1(a)(5)
mj accessories
Possess,process, purchase, transport, manufacture, give without compensation
Legal
Infr
Infr
Penalty provision
What are the restrictions on adult use of marijuana?
11362.3(a)
(1)
Smoke mj in public
Illegal
Infr
11362.4(a)
(2)
Smoke mj where smoking prohibited
Illegal
Infr
11362.4(b)
(3)
smoke w/I 1000 ft of school/daycare
Illegal
Infr
11362.4(b)
(4)
open mj container in car
Illegal
Infr
11362.4(b)
(5)
possess in school/daycare
Illegal
=11357(c)/(d)
11362.4(c)
(6)
make hash with VOC (dangerous chemical)
Illegal
= 11379.6
11362.4(d)
(7)
smoking & driving
Illegal
Not specified
(8)
passenger smoking, ingesting in car
Illegal
Not specified
11362.2(a)
Excessive cultivation
Illegal
Infr/$250
11362.4(e)
Excessive cultivation by juv
Illegal
=11358(a)
11362.4(f)
Which laws have changed?
Former Section
New section
Title
Age
Penalty
H&S 11357
11357(a)
repealed
11357(b)
11357(a)(1)
Less than 1 oz mj or 4 grams hash
Under 18
Infr
11357(b)
11357(a)(2)
Less than 1 oz mj or 4 grams hash
18-21
Infr/$100
Less than 1 oz mj or 4 grams hash
Over 21
Legal
11357(c)
11357(b)(1)
More than 1 oz mj or 4 grams hash
Under 18
Infr
11357(b)(2)
More than 1 oz mj or 8 grams hash
Over 18
M: 6 mos
11357(d)
11357(c)(1)
Less than 1 oz 4 gr at school
Over 18
M: $250
11357(c)(2)
Less than 1 oz 4 gr at school + prior
Over 18
M: $500/ 10 days cj
11357(e)
11357(d)
Less than 1 oz 4 gr at school
Under 18
Infr
H&S 11358
11358(a)
Cultivation of any amount
Under 18
Infr
11358(b)
Cultivation of 6 plants or less
18-21
Infr/$100
11358(c)
Cultivation of more than 6 plants
Over 18
M: 6 mos
11358(d)(1)
Cultivation of more than 6 plants + prior superstrike or 290
Over 18
F: 1170(h)
11358(d)(2)
Cultivation of more than 6 plants + 2 prior 11358(c) conv.
Over 18
F: 1170(h)
11358(d)(3)
Cultivation of more than 6 plants + environmental violation
Over 18
F: 1170(h)
H&S 11359
11359(a)
Poss of any mj for sale
Under 18
Infr
11359(b)
Poss of any mj for sale
Over 18
M: 6 mos
11359(c)(1)
Poss of any mj for sale + prior superstrike or 290
Over 18
F: 1170(h)
11359(c)(2)
Poss of any mj for sale + 2 prior 11359(b) conv.
Over 18
F: 1170(h)
11359(c)(3)
Poss of any mj for sale + knowing intent to sell to minor
Over 18
F: 1170(h)
11359(d)
Knowing use of person under 21 to cultivate, transport, sell or give mj
Over 21
F: 1170(h)
H&S 11360
11360(a)(1)
sale, furnish, transport, import into state any amount
Under 18
Infr
11360(a)(2)
sale, furnish, transport, import into state any amount
Over 18
M: 6 mos
11360(a)(3)(A)
sale, furnish, transport, import into state + 290/superstrike
Over 18
F: 2/3/4 Co Jail
11360(a)(3)(B)
sale, furnish, transport, import into state + 2 priors
Over 18
F: 2/3/4 Co Jail
11360(a)(3)(C)
sale, furnish, transport, import into state + knowing intent to involve minor
Over 18
F: 2/3/4 Co Jail
11360(a)(3)(D)
sale, furnish, transport over 1 oz mj/4 gr hash into or out of Calif
Over 18
F: 2/3/4 Co Jail
11360(b)
sale, furnish, transport, less than 1 oz mj
Any age
Infr
Which laws concening marijuana are unchanged?
Authority
VC 23152
Driving under Infrluence of mj
HS 11362.45(a)
HS 11361
Sale of mj to minor
HS 11362.45(b)
PC 4573
Controlled substance in jail
HS 11362.45(d)
HS 11362.5 et seq.
CUA (Medical marijuana statutes)
HS 11362.45(i)
What are the new regulatory crimes?
RT 34016(b)
Failure to permit tax inspection
M: 1 yr.
RT 34016(d)
False tax report
M: 6 mos
RT 34016(e)
Other marijuana tax violations
M: 6 mos
What new laws govern sentence recall and sealing of records?
11361.5
Petition to seal
11361.8
Recall of sentence: same as prop 47
Prepared by the Alameda County District Attorney's Office Law and Motion Division 13 Dec 1
