DAs Making it Easier to Clear California Cannabis Convictions

Two years ago, Sacramento County District Attorney Ann-Marie Schubert was an ardent opponent of Proposition 64, California’s cannabis legalization measure. She blasted the initiative as a threat to children and as a vehicle for convicted drug dealers to enter the legal marijuana trade.

District attorneys in San Francisco and San Diego announced that they would unilaterally review more than 12,000 cases involving cannabis to revise or expunge the charges.

But after state voters approved Prop. 64, Schubert directed her office to create a framework to respond to requests from former cannabis defendants wanting convictions modified or expunged, as allowed under the wording of the initiative.

“Since it has passed, she (Schubert) is here to enforce the law—and she wants relief granted when people are entitled to it,” said Robert Gold, the assistant chief deputy district attorney.

Prop. 64 reduced penalties for cannabis offenses and allowed people with marijuana convictions to file legal petitions to have the charges reduced or cleared. Now many felony convictions for cannabis sales, possession for sale, or marijuana cultivation can be reclassified as misdemeanors. Misdemeanor convictions for possession of cannabis concentrates or less than an ounce of flower can be expunged entirely since they are longer considered crimes under Prop. 64.

Bold Moves in SF and San Diego

Recently, two California district attorneys—in liberal San Francisco and, surprisingly, in San Diego, a jurisdiction long hostile to cannabis—announced that they would unilaterally review more than 12,000 felony or misdemeanor cases involving marijuana offenses to revise or expunge the charges.

The actions triggered questions over whether other jurisdictions are doing enough to clear cannabis records for offenses that are no longer crimes. The matter could be a potential political consideration in county district attorney races across the state this year.

Looking for Expungement Help?

The majority of California’s 58 district attorneys, including in Los Angeles—with more than 40,000 cannabis felony cases alone since 1993—say it is simply too burdensome to revisit marijuana charges en masse. They say it is up to people with convictions to petition the courts on their own and for district attorneys to respond on a case by case basis.

That has resulted in protests from cannabis reform advocates. It has spurred still-vague state legislation seeking to expedite justice for former cannabis defendants in California’s 58 counties.

Sacramento: Helpful, but not Proactive

Sacramento County, the state’s sixth most populous county with 1.4 million residents, serves to illustrate the bureaucratic challenges, work load and legal considerations involved in revisiting and clearing records under Prop. 64.

'I’m curious about San Francisco,' one DA said. 'Are they just going take every misdemeanor and wipe it off the books?'

The county is home to the state capital city of Sacramento, a pro-cannabis mecca with 30 urban dispensaries and big civic plans to capitalize on an expanding industry. It is also home to five suburban cities and unincorporated county regions with strict bans on marijuana businesses and cultivation.

Despite the district attorney’s opposition to Prop. 64, 54 percent of county voters approved the initiative—slightly less than the statewide margin of 57 percent.

As with most other California jurisdictions, Sacramento County decided it didn’t want to tie up prosecutors and staff time by proactively combing through thousands of past marijuana cases to revisit charges dating back many years.

The district attorney instead declared it was up to people with cannabis offenses to file petitions to have convictions cleared or reduced. But, with Gold as the DA’s point person, a county team—including the district attorney, the public defender and a Superior Court judge—were designated to handle the petitions as expeditiously as possible.

“Sometimes we would hear from someone saying, ‘I have a job interview coming up’ and they wanted to reduce a felony to a misdemeanor,” Gold said. “And once the judge reviewed the case, I would say 95 percent of the time, we were all in agreement. Sometimes the (criminal record) release was turned over in a week.”

Expunged: Who Was, Who Wasn’t, and Why

Since November 2016, Sacramento County has cleared or reduced offenses for 240 marijuana defendants and rejected 20 petitions.

It’s instructive to look into the rejected petitions, which offer a sense of where the district attorney is drawing the line.

One of the rejected cases involved a 1997 felony for marijuana possession for sale. If reduced to a misdemeanor, the case could have shaved nine months off the defendant’s prison sentence. But Gold used an exemption under Prop. 64 to argue successfully that the suspect was a public safety risk: His marijuana conviction accompanied convictions in two-drive by shootings that netted him a total of 33 years in prison.

In some rejected petitions, the Sacramento DA found that cannabis charges also involved other drug offenses not subject to reductions. In others, felony sales offenses had already been plea bargained down to misdemeanors. When authorities checked old police reports, they found some suspects had possessed more than an ounce of cannabis—meaning those misdemeanor counts still stood under Prop. 64.

“The only way to know is by identifying in police reports what the conduct was,” Gold said. “We’re looking factually at whether they qualify” for reclassification or expungement.

How is SF Going to Make it Work?

Having done that work, Sacramento officials are now looking 90 minutes to the west at San Francisco, and wondering how the district attorney there, George Gascón, can uphold his promise to comb through, reduce and expunge 4,940 felony marijuana convictions and 3,038 misdemeanors since 1975.

“I’m curious about San Francisco,” Gold said. “Are they just going take every misdemeanor wholesale and wipe it off the books? If there are thousands of cases, does the public really believe that this is a good use of prosecutorial resources for people who haven’t even requested that it be done?”

In San Francisco, where Prop. 64 passed with more than 74 percent voter approval, the answers appear to be yes and yes.

While the Judicial Council of California reported in December that marijuana defendants petitioned for resentencing in more than 4,885 cases statewide, San Francisco County received only 232 petitions. But in a statement Jan. 31, Gascón declared that his office will be “reviewing, recalling and resentencing” cannabis felonies and “dismissing and sealing” misdemeanors,” adding: “This will not require any action to be taken by those who are eligible pursuant to Proposition 64.”

Gascón didn’t speak to the amount of work—or office resources—that will be required. Instead, he delivered an indictment of drug war policies, declaring that San Francisco will act to make amends.

“San Francisco is once again taking the lead to undo the damage that this country’s disastrous, failed drug war has had on our nation and on communities of color in particular,” Gascón said. “Long ago we lost our ability to distinguish the dangerous from the nuisance, and it has broken our pocket books, the fabric of our communities, and we are no safer for it.”

Good Policy or Just Politics?

Omar Figueroa, a cannabis law attorney in neighboring Sonoma County, hailed Gascón’s decision and its historic significance.

“It is very unusual for a district attorney to do this,” he said. “Ordinarily the defendant is the petitioner.”

But William Panzer, an Oakland cannabis attorney and an architect of California’s 1996 Proposition 215, which legalized medical marijuana, said Gascón’s promise may be more about politics than actual policy on which he can deliver. Under Prop. 64, Panzer said, the courts still have discretion in expunging cannabis convictions or denying resentencing requests due to the circumstances of arrests or additional criminal offenses.

“I know he (Gascón) is saying that he can do this,” Panzer said. “But I want to see how it actually happens. Who is going to pay all the money to go through all the records? Obviously, if this could actually happen, that would be great. But the statute (under Prop. 64) doesn’t make it automatic. The statute gives the court discretion.”

Sometimes it Takes Hard Bargaining

Panzer, who has handled about a dozen appeals seeking to wipe out marijuana convictions under Prop. 64, recently got cannabis cases thrown out for clients convicted in recent years for transporting marijuana in Mendocino and Sonoma counties.

Those expungements came after hard bargaining with district attorneys over defendants’ criminal backgrounds.

One of his clients, with a federal cannabis conviction, ultimately got his unrelated state charges thrown out. But Prop. 64 cannot address federal cases.

Mendocino County DA: Sorry, We’re Strapped

In Mendocino, in the heart of California’s fabled Emerald Triangle cannabis growing country, District Attorney C. David Eyster has so far acted on 80 petitions that resulted in reduction or expungement of charges.

Even with untold hundreds of additional cannabis cases, spokesman Mike Geniella said there isn’t much more the Mendocino DA can do, despite the office’s belief in “progressive, informed marijuana-related policies.”

“An office this size simply doesn’t have the resources or the staff time,” Geniella said. “There is no requirement under Prop. 64 for district attorneys to take on the burden of rummaging through old files and acting without the need for a defendant’s petition.”

In neighboring Sonoma County, District Attorney Jill Ravitch recently announced in a press conference that “I’m not planning to follow the lead of Mr. Gascón.”

“If the voters had wanted to take the affirmative action of recalling and dismissing all of those cases,” she said of Prop. 64, it would have been part of the initiative.”

Sonoma County: Only 24 Petitions

Through December, Sonoma County received 24 petitions for altering cannabis convictions. Ravitch said others seeking redress can do so without a lawyer. “They can actually go to the Sonoma County court website, get the paperwork, file it themselves, come into court themselves and we’ll address them just as we’d address any attorney.”

That remark irked Figueroa, who criticized the DA for suggesting that accessing the courts “was as easy as baking a cake.

“It is not easy for everyone to bake a cake,” he said. “Basically, the legal system is daunting, confusing and intimidating.”

The Judicial Council of California has posted an online form that cannabis defendants can fill out themselves to petition courts to revisit their convictions. The Drug Policy Alliance has also posted instructions on clearing California cannabis records but suggested consulting with a lawyer.

With the help of a Prop. 64 appeal by Figueroa, Joshua Freeman, 45, got a cannabis case cleared in Monterey County, 16 years after he got arrested when cop saw him doling out “a little bit of herb” at the Monterey Bay Reggae Festival in 2002. He thought the case was already off his record: A felony charge of possession with intent to sell was knocked down to a misdemeanor before trial and soon later dismissed.

But when Freeman, a bow hunter, recently tried to buy a shotgun his background check revealed a still-standing marijuana felony. At the time, he was petitioning Sonoma County for a local cultivation license, which required a similar background check. After his Prop. 64 appeal, his cannabis case was finally scrubbed—and this time a record check came up clean. “That was a huge relief for me,” he said.

Rob Bonta Wants it Automatic for the People

In January, California lawmaker Rob Bonta, an Oakland Democrat, introduced Assembly Bill 1793 seeking to declare the Legislature’s intent “to allow automatic expungement of a prior cannabis conviction.”

In a statement, Bonta said, “The role of government should be to ease burdens and expedite the operation of law – not create obstacles,” including forcing people with limited means to have to hire attorneys to clear their names. But Bonta’s bill is spartan on details, offering neither funding nor direction on whether it may force district attorneys to plow through volumes of marijuana case files or potentially create some new state system to do so.

San Diego Surprise

By far, the most startling example of a district attorney pledging to wipe out outdate cannabis convictions is in San Diego.

'We want to be pro-active. It is clear to us that Prop. 64 was written to allow this relief.'

There, District Attorney Bonnie Dumanis, who recently stepped down after 14 years to run for county supervisor, was regarded as a pariah by cannabis advocates for her aggressive cannabis prosecutions.

But the county backed Prop. 64 by 57 percent, equal to the state margin. And now interim District Attorney Summer Stephan, running for election against a cannabis progressive, Geneviéve Jones-Wright, is pledging to work aggressively to roll back those convictions.

Stephan told the San Diego Union-Tribune that she is working with the public defender’s office to review 4,700 cases potentially eligible for sentencing reduction or expunging. “We want to be pro-active,” Stephan said. “It is clear to us that the law [Prop. 64] was written to allow this relief.”

Mara Felsen, a San Diego cannabis law attorney, applauded the interim DA for vowing to the do the hard work of combing through case files—without waiting for former defendants to ask her first.

“They may not have a legal obligation to do so,” Felsen said, “but I think there is a moral obligation to be pro-active in cases like this—particularly when people have unnecessary convictions on their records, hanging around their necks, precluding employment and housing opportunities.”

Los Angeles DA: Too Many Cases to Handle

Meanwhile, in Los Angeles County, District Attorney Jackie Lacey is taking a different approach. On Feb. 2, she announced that it was simply too demanding for her office to unilaterally review reams of past cannabis convictions.

“The process (under Prop. 64) also allows people most affected by these convictions to pro-actively petition the court for relief and move to the head of the line—rather than wait for my office to go through tens of thousands of case files,” Lacey said.

That answer was far from satisfying for Los Angeles County cannabis lawyer Allison Margolin.

“It’s very upsetting,” Margolin railed. “There is a callousness towards human beings and helping people. It is not surprising the DA would take this approach. They would rather spend time over-charging cases…than expunging records and doing justice.”