Proposition 64 – Marijuana Legalization in California

On November 8, 2016, California voters approved Proposition 64, also known as the Adult Use of Marijuana Act.

Prop 64 made it legal as of January 1, 2018, for people 21 and older to possess and use small amounts of marijuana (also known as “pot” or “weed”). California’s marijuana legalization law also allows the sale of marijuana by businesses licensed to do so.¹

California had been slowly moving toward marijuana legalization for a while. The use, cultivation and distribution of medical marijuana were legalized in 1996. And personal possession of up to an ounce of marijuana was previously a California infraction carrying no jail time.

But Prop 64 definitely marks a new era for California marijuana law. Moreover, defendants sentenced to criminal penalties for crimes like HS 11359 possession for sale of marijuana may now be able to bring a motion for resentencing under Prop 64, which lightens the penalties for such offenses.²

The following table shows the changes made by Proposition 64 to major California marijuana crimes and their penalties:

California Marijuana Crime	Code Section	Before Prop 64	After Prop 64
Possession of up to 28.5 grams of marijuana	HS 11357	Infraction ($100 ticket)	Legal
Possession of up to 8 grams of concentrated cannabis	HS 11357	Misdemeanor	Legal
Cultivation of up to 6 marijuana plants	HS 11358	Felony	Legal for ages 21 and up (infraction for minors under 21)
Cultivation of more than 6 marijuana plants	HS 11358	Felony	Misdemeanor
Possession of marijuana for sale without a license	HS 11359	Felony	Misdemeanor for most defendants (1st and 2nd offense)
Sale/transportation for sale of marijuana without a license	HS 11360	Felony	Misdemeanor for most defendants (1st and 2nd offense)

California Marijuana Crime	Proposition 64 Penalty Change
Possession of up to 28.5 grams of marijuana (HS 11357)	Before Prop 64: Infraction After Prop 64: Legal
Possession of up to 8 grams of concentrated cannabis (HS 11357)	Before Prop 64: Misdemeanor After Prop 64: Legal
Cultivation of up to 6 marijuana plants (HS 11358)	Before Prop 64: Felony After Prop 64: Legal for ages 21 and up (infraction for those under 21)
Cultivation of more than 6 marijuana plants (HS 11358)	Before Prop 64: Felony After Prop 64: Misdemeanor
Possession of marijuana for sale without a license (HS 11359)	Before Prop 64: Felony After Prop 64: Misdemeanor for most defendants
Sale/transportation for sale of marijuana without a license (HS 11360)	Before Prop 64: Felony After Prop 64: Misdemeanor for most defendants

Below, our California Proposition 64 attorneys answer the following frequently asked questions about Proposition 64 and the legalization of marijuana in California:

• 1. Is it now legal to possess and use marijuana and concentrated cannabis in California?
• 2. Under Proposition 64, what happens if a minor possesses marijuana in California?
• 3. Is it still a crime to possess marijuana for sale in California?
• 4. Is it still a crime to sell or transport marijuana in California?
• 5. Under Prop 64, can I grow my own marijuana?
• 6. If I was convicted of a marijuana crime before Proposition 64, can I apply for resentencing?
• 7. Where will I be allowed to smoke marijuana under Prop 64?

If you have further questions after reading this article, please feel free to contact us at Shouse Law Group.

1. Is it now legal to possess and use marijuana and concentrated cannabis in California?

Proposition 64 makes it legal for people in California to possess–or use–marijuana. Once the law goes into effect, you can use marijuana without worrying about being charged with HS 11357 possession of marijuana for personal use.³

However, there are several important caveats to Prop 64’s legalization of marijuana possession.

First, an individual may legally possess only

1. Up to 28.5 grams (just over one ounce) of marijuana, or
2. Up to 8 grams of concentrated cannabis (hashish).

Adults who possess more than those quantities will be charged with a California misdemeanor, punishable by up to six (6) months in county jail and/or a fine of up to five hundred dollars ($500).⁴

Second, only people aged 21 and older can legally possess marijuana or hashish under Prop 64. People under 21 who possess any amount of marijuana will still be guilty of an infraction and will be sentenced to drug counseling, community service, and/or (if they are 18 or over) a small criminal fine.⁵

Finally, California’s marijuana legalization law imposes criminal penalties on people who possess any amount marijuana or concentrated cannabis on the grounds of or inside any K-12 school while the school is open during school hours.

For people 18 and over, possessing marijuana at a school is a misdemeanor punishable by a $250 fine for first offenders. Minors under 18 who possess pot at a school are guilty of an infraction and face drug treatment and community service.⁶

2. Under Proposition 64, what happens if a minor possesses marijuana in California?

As we discuss above, marijuana or concentrated cannabis possession is still a crime for people who are under the age of twenty-one (21)–just like alcohol possession.

Anyone under 21 who is caught with pot or hashish will be charged with an infraction under Prop 64. They will face the following penalties:

• A fine of up to one hundred dollars ($100), for people 18 and over;
• For first offenders who are under 18, four (4) hours of drug education or counseling and up to ten (10) hours of community service; and
• For second or subsequent offenders who are under 18, six (6) hours of drug education or counseling and up to twenty (20) hours of community service.⁷

3. Is it still a crime to possess marijuana for sale in California?

Proposition 64 legalizes the sale of marijuana–but only for businesses that obtain and operate in accordance with a state license (and possibly local licenses as well).⁸

For anyone who does not have a license, possession of pot with intent to sell it will still be a crime.

However, under Prop 64, marijuana possession for sale under Health & Safety Code 11359 HS will no longer be a felony, as it was prior to marijuana legalization. Instead, for most adult defendants, HS 11359 possession for sale will be a misdemeanor, carrying the following penalties:

• Up to six (6) months in county jail, and/or
• A fine of up to five hundred dollars ($500).⁹

There are some exceptions to this. Marijuana possession for sale will still be a felony under Prop 64 if any of the following is true:

1. You have a prior conviction for one of a list of particularly serious violent felonies, including murder, sexually violent offenses, sex crimes against a child under 14, or gross vehicular manslaughter while intoxicated, or a sex crime that requires you to register as a sex offender;
2. You have two (2) or more prior misdemeanor convictions for marijuana possession for sale; or
3. You possessed marijuana for sale in connection with a knowing sale or attempted sale to someone under 18.¹⁰

For these defendants, possessing marijuana for sale will carry a felony sentence of sixteen (16) months, two (2) years or three (3) years in jail despite marijuana legalization.¹¹

4. Is it still a crime to sell or transport marijuana in California?

Under California’s marijuana legalization law, you can only sell marijuana if you have obtained a license to do so. These licenses will be issued by a newly-created Bureau of Marijuana Control.

If you don’t have a license, then selling pot–or transporting it in order to sell it–is still a crime under Proposition 64.¹²

Prior to Prop 64, sale or transportation of marijuana was a felony under Health & Safety Code 11360 HS. But now it is a misdemeanor for most defendants. The penalties include up to six (6) months in county jail, and/or a fine of up to one thousand dollars ($1,000).¹³

However, marijuana sale/transportation for sale without a license will remain a felony for the following defendants:

1. Defendants who have a prior conviction for one of a list of particularly serious violent felonies, including murder, sexually violent offenses, sex crimes against a child under 14, or gross vehicular manslaughter while intoxicated, or a sex crime that requires them to register as a sex offender;
2. Defendants who have two (2) or more prior convictions for HS 11360 sale/transportation of marijuana;
3. Defendants who knowingly sold, attempted to sell, or offered to sell or furnish marijuana to someone under 18; and
4. Defendants who imported or attempted or offered to import into California, or transported or attempted/offered to transport out of California for sale, more than 28.5 grams of marijuana or more than eight grams of concentrated cannabis.¹⁴

For these defendants, unlicensed sale or transport of marijuana is punishable by two (2), three (3) or four (4) years in jail.¹⁵

According to Los Angeles marijuana attorney Neil Shouse¹⁶

“It’s important to remember that Proposition 64 is not going to mean the end of people being prosecuted for selling or transporting marijuana in California. ‘Marijuana legalization’ means that marijuana can legally be sold only by licensed businesses that collect high state taxes on their sales. But some people, in order to get around Prop 64’s taxes and regulations, will continue to buy and sell pot the way they always have–illegally. It remains to be seen how much attention law enforcement will give to investigating these violations.”

Also, for minors under 18, selling or transporting weed without a license will only be an infraction under Prop 64. These defendants will face required drug education and community service.¹⁷

5. Under Prop 64, can I grow my own marijuana?

Proposition 64, California’s marijuana legalization statute, makes it legal to grow your own weed in some circumstances.

Prior to Prop 64, cultivation of marijuana was a felony under Health & Safety Code 11358 HS, California’s cultivation of marijuana law.

But under the Adult Use of Marijuana Act, adults who are 21 or older may plant, cultivate, harvest, dry or process up to six (6) living marijuana plants without breaking the law.¹⁸

But cultivating more than six marijuana plants will remain a crime. For most adult defendants, it will be a misdemeanor that carries up to six (6) months in county jail and/or a fine of up to five hundred dollars ($500). It will be a felony for:

• People with serious violent felonies on their record;
• Registered sex offenders;
• Defendants who have two (2) or more prior convictions for cultivating more than six marijuana plants; and
• Defendants who violate certain California environmental laws in their marijuana cultivation activities.¹⁹

In addition, under Proposition 64, people under 21 who plant, cultivate, harvest, dry or process even one marijuana plant will be charged with an infraction.²⁰

6. If I was convicted of a marijuana crime before Proposition 64, can I apply for resentencing?

Proposition 64 does provide for resentencing for people convicted under California’s previous marijuana laws who would serve a lighter sentence under the marijuana legalization regime.

If you are currently serving a sentence under the old version of California marijuana laws, and you would be eligible for a shorter sentence under Prop 64, you may apply to a court to have your sentence reduced.

The judge is supposed to presume that you meet the criteria for Proposition 64 resentencing unless a prosecutor opposes your petition and proves by “clear and convincing evidence” that you don’t meet the criteria. The judge is then supposed to resentence you unless s/he determines that doing so would pose an unreasonable risk of danger to public safety.²¹

Depending on how much of your sentence you have already served, resentencing under Prop 64 could lead to your immediate release from jail.

The same is true if you have already completed a sentence for violation of California’s marijuana laws. Marijuana legalization means that you can apply to have your conviction redesignated from a felony to a misdemeanor, or from a misdemeanor to an infraction.²²

This kind of Proposition 64 resentencing can help you restore rights that are not available to people with a past conviction for a felony–for example, the right to own a firearm without violating California’s “felon with a firearm” law.

Of course, resentencing under Prop 64 can also help you by reducing the apparent severity of the crimes on your record–which will make it easier to find jobs and housing and to rebuild your life after being convicted of a marijuana crime.

Here are some examples of how resentencing after marijuana legalization might work:

Example: Kayla is convicted of transporting marijuana for sale in 2014. She has no prior criminal record. At the time, this offense is a felony under HS 11360. She is sentenced to 3 years in jail.

In 2016, California voters pass Proposition 64. Under the new law, Kayla’s offense would be a misdemeanor punishable by up to 6 months in jail. So with the help of her California Proposition 64/marijuana legalization attorney, she files a petition for resentencing. The prosecutor does not oppose the petition, and it is granted.

Kayla is eligible for immediate release from jail.

Example: Carlos is convicted of possession of marijuana for sale, a felony, in 2009. He is sentenced to two years in jail but is released earlier. By 2016, when Prop 64 is passed, he has completed his sentence.

Under the Adult Use of Marijuana Act, possession of marijuana for sale is a misdemeanor. Even though he has served his sentence, Carlos applies for redesignation of his offense to a misdemeanor. This redesignation is granted. As a result, Carlos no longer has a criminal record that includes a felony.

7. Where will I be allowed to smoke marijuana under Prop 64?

The Adult Use of Marijuana Act specifies that marijuana may not be smoked/consumed in any public place UNLESS that place is licensed for such purposes under California’s marijuana legalization law.²³

Places that are licensed for marijuana consumption must meet the following requirements:

• They must be a licensed retailer or microbusiness permitted by local law;
• They must restrict access to the area where marijuana is consumed to people 21 and over;
• Marijuana consumption must not be visible from any public or non-age-restricted area; and
• Sale or consumption of alcohol and tobacco must not be allowed on the premises.²⁴

It remains to be seen how many “pot bars” of the type just described will be opened in the wake of Proposition 64. Of course, marijuana consumption in private homes will remain the safest option even after marijuana legalization.

Call us for help…

For more information about Proposition 64 and the legalization of marijuana in California, or to discuss your case confidentially with one of our marijuana legalization attorneys, please don’t hesitate to contact us at Shouse Law Group.

Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

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