Defendant who was convicted of “super strike” offenses and felony possession of marijuana for sale in the same case was still eligible for Proposition 64 relief on the marijuana count. Smit was convicted of several super strike felonies and felony possession of marijuana for sale (Health and Saf. Code, § 11359), and the judgment was affirmed on appeal. Following the passage of Proposition 64 in 2016, Smit filed a petition to have the possession of marijuana for sale conviction reduced to a misdemeanor (Health and Saf. Code, § 11361.8). The trial court denied the petition, finding Smit ineligible for relief because he was convicted of super strike offenses in the same proceedings. He appealed. Held: Reversed and remanded. As relevant in this case, Proposition 64 amended section 11359 to provide that possession of marijuana for sale can be punished as a felony only if the defendant has a prior conviction for an offense that requires registration pursuant to Penal Code section 290, or has one or more prior convictions for super strike offenses. Proposition 64 also added section 11361.8, which allows a defendant with a felony section 11359 conviction to petition to reduce the offense to a misdemeanor if he would have been guilty of a lesser offense under Proposition 64 had it been in effect at the time of the offense. The Court of Appeal here concluded that Smit’s section 11359 offense would have been a misdemeanor under Proposition 64. Because Smit did not have a super strike prior conviction at the time he was charged with possessing marijuana for sale, he could not have been convicted of felony possession of marijuana for sale. Being charged with a super strike in the same case would not make the marijuana charge a felony. The court distinguished the prior offense disqualifier in Proposition 47, which is contained in the resentencing provision. The appellate court remanded the matter for the trial court to determine whether granting relief would present an unreasonable risk to public safety.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G055311.PDF