A person sentenced prior to the enactment of Proposition 64 for a violation of Health and Safety Code section 11359 whose judgment is not yet final is not automatically entitled to have the offense reduced to a misdemeanor. Rascon was convicted of a number of felonies including possession of marijuana for sale (Health & Saf. Code, § 11359). After she was sentenced, voters enacted Proposition 64, which reduced possession of marijuana for sale by a person 18 or older to a misdemeanor. On appeal, Rascon argued that her felony conviction should be reduced to a misdemeanor since the law changed before her conviction became final on appeal. Held: Affirmed. In re Estrada (1965) 63 Cal.2d 740 sets forth an exception to the general rule that statutes operate prospectively only. Under Estrada, when a statute that is silent as to its retroactivity reduces the penalty for a particular crime, courts will presume that new lighter penalty will apply to acts committed before its passage if the judgment in the case is not final. Here, the court concluded that Proposition 64 is not silent on the issue of retroactivity. Specifically, it contains its own retroactivity mechanism that requires a petition to be filed in the superior court to have a conviction reduced and restricts eligibility to individuals who do not pose an unreasonable risk of danger to public safety. (Health & Saf. Code, § 11361.8.) The mechanism is similar to the one contained in Proposition 36 and the California Supreme Court held that Proposition 36’s mechanism displaced the Estrada presumption. (See People v. Conley (2016) 63 Cal.4th 646, 656.) As a result, the amendment to section 11359 should not be applied retroactively to reduce Rascon’s offense to a misdemeanor during her direct appeal.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B269000.PDF