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How Can I Restore All of My Civil Rights after a Cannabis Felony conviction?

The Adult Use of Marijuana Act “AUMA”, or more commonly known as Proposition 64, provides a legal mechanism to persons with prior sentences for violations of certain California, Cannabis offenses, i.e., Possession for Sale – Possession – Planting – Cultivating – Transporting – to petition the Court to recall or dismissal of the sentence thus restoring their good name and employability.

What is the difference between the AUMA and Expungement?

 AUMA

The difference between the AUMA, Business & Professions Code § 11361.8, and Expungement or Dismissal under Penal Code § 1203.4 is that if the court grants your request to resentence the offense as a misdemeanor or infraction under the AUMA, thereafter the crime will be treated as a misdemeanor or infraction for all purposes, automatically restoring all of your civil rights which had been denied because of the felony conviction including relief of your obligation to register as a narcotics offender under Health & Safety Code § 11590.

Section 11361.8(h) provides, “Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor or infraction under subdivision (f) shall be considered a misdemeanor or infraction for all purposes. Any misdemeanor conviction that is recalled and resentenced under subdivision (b) or designated as an infraction under subdivision (f) shall be considered an infraction for all purposes.”

Misdemeanor or infraction for all purposes

If the court grants the request to resentence the offense as a misdemeanor or infraction, thereafter the crime will be treated as a misdemeanor or infraction for all purposes. Unlike Expungement or Dismissal under Penal Code § 1203.4 or Proposition 47 under Penal Code § 1170.18(k), the resentencing does not preclude the right to own or possess firearms.

 Expungement or Dismissal under section Penal Code 1203.4

However, in any subsequent prosecution of the defendant for any other offense, the prior conviction that was expunged or dismissed under section Penal Code 1203.4 may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.

Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm.

Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.

How much does it Cost to Petition for relief under the AUMA and is it a Fixed Fee?

Yes, my office charges a fixed attorney fee of $1,750.00 (One thousand, Seven hundred fifty, U.S. dollars). Fixed fee means no other attorney fee will be charge for AUMA , Health and Safety Code, § 11361.8 resentencing or dismissal legal service that includes; preparing your petition, filing it with the Court, serving the petition on the District Attorney’s office, and appearing in-court with you for hearing on your Petition. Fixed Fee does NOT include Court costs of approximately $150.00 or costs to locate your file.

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What’s the Next Steps Do I Need to Restore All of My Civil Rights after a Cannabis Felony conviction?

The resentencing provision under Health & Safety Code Section 11361.8.(a) et. seq., permits persons previously convicted of designated marijuana offenses to obtain a reduced conviction or sentence, if they would have received the benefits of the AUMA had it been in place when the crime was committed and

If the crime was for conduct now legal under the AUMA, there is a provision requiring the court to “dismiss and seal” the record of conviction if you have completed your sentence.

Eligibility of Person Currently Serving a Sentence

A person currently serving a sentence for a conviction, 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 the Control, Regulate and Tax Adult Use of Marijuana AUMA had that AUMA been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by that AUMA. (Unless otherwise stated Sections cited are Health & Safety Code)

There are Three (3) Eligibility Requirements.

There are three (3) eligibility requirements specified by section 11361.8(a) for resentencing of persons currently serving a sentence:

  1. The resentencing must be for one or more violation(s) of sections 11357, 11358, 11359, 11360,
  2. The person must be currently serving a sentence for one or more Sections listed above, and
  3. The person “would not have been guilty of an offense or who would have been guilty of a lesser offense under the AUMA had it been in effect at the time of the offense.

Certain factors must be taken into account to be eligible for resentencing or dismissal such as how old you were, been between the ages of 18 and 21, or over 21 at the time of the offense, or on the type and quantity of marijuana involved. For example, section 11362.1(a)(1) makes it legal for a person over the age of 21 to possess not more than 28.5 grams of marijuana not in the form of concentrated cannabis requiring the court, upon your Petition, to “dismiss and seal” the record of conviction.

Mandatory Presumption Your Petition Satisfies the three (3) Three Eligibility Requirements.

Step 1 – Upon receiving your petition the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition, generally the District Attorney’s Office, proves by clear and convincing evidence that the petitioner does not satisfy the three (3) criteria.

Step 2 – If you satisfy the three (3) criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines (proper burden of proof of “dangerousness” is preponderance of the evidence) that granting the petition would pose an unreasonable risk of danger to public safety. Section 11361.8. (b)

In this regard the court may consider “(1) Your criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; (2) Your disciplinary record and record of rehabilitation while incarcerated; (3) Any other evidence the court, within its discretion, determines to be relevant to deciding whether a new sentence would result in an unreasonable risk of danger to public safety.”

Eligibility of Person Who Have Completed Their Sentence

Sections 11361.8(e) – (g) allow persons who have completed their sentence for qualified marijuana offenses to apply to the court that entered judgment in their case for designation of the offense as a misdemeanor or infraction, or dismissal as if the Act would have been in effect at the time the crime was committed.

There are Three (3) Eligibility Requirements.

If you have completed your sentence, there are three eligibility requirements specified by section 11361.8(e) for redesignation or dismissal of qualified offenses:

  1. You completed your sentence for an offense listed in the Act: sections 11357, 11358, 11359, 11360.
  2. You must have completed the sentence for one of the designated crimes.
  3. The person “would not have been guilty of an offense or who would have been guilty of a lesser offense under the [Act] had that Act been in effect at the time of the offense.” (§ 11361.8(a).)

Certain factors must be taken into account to be eligible for resentencing or dismissal such as how old you were, been between the ages of 18 and 21, or over 21 at the time of the offense, or on the type and quantity of marijuana involved. For example, section 11362.1(a)(1) makes it legal for a person over the age of 21 to possess not more than 28.5 grams of marijuana not in the form of concentrated cannabis requiring the court, upon your Petition, to “dismiss and seal” the record of conviction.

Basic eligibility is established by you meeting just these three requirements. (§ 11361.8(f).) The AUMA does not disqualify a person simply because he or she has any particular prior criminal offense, even “super strikes.”

The hearing will be to confirm your eligibility for relief: that you have been convicted of a qualified offense, that you completed a sentence for a qualified crime, and that you would have been convicted of a lesser offense, or no crime at all, had the AUMA been in effect when the offense was committed. As to the last issue, it may be necessary to determine defendant’s age at the time the crime was committed, or the nature and quantity of the marijuana. To overcome the presumption of eligibility, the prosecution must present clear and convincing evidence that the defendant is not eligible. There is no determination of dangerousness in this process.

The provisions of this section shall apply equally to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would have been guilty of a lesser offense under the AUMA.

Section 602 permits the criminal prosecution of a child suspected of committing a misdemeanor or felony. If the charges are sustained, the child may be declared a ward of the court under the Probation Department or California Youth Authority supervision.

No refilling of charges

Section 11361.8(d) specifies that “under no circumstances may resentencing under this section result in the reinstatement of charges dismissed pursuant to a negotiated plea agreement.” With this provision, the Act makes it clear that although prior plea negotiations resulted in a certain disposition, the fact that the defendant receives a reduced disposition under the Act is not grounds for reopening those discussions.

Sealing of Record Only after Sentence Completed

The Act does not provide persons currently serving a sentence the means to seal the conviction if the recall of the sentence is based on the fact that the conduct of the defendant is no longer criminal. Such a right is given to persons who petition for relief after the sentence has been completed. (Section 11361.8(f).

 

 

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