Prosecutor, defender consider legal pot impact: Proposition 64 to affect San Mateo County courts by reducing or dismissing some criminal charges

About 120 pending criminal charges related to marijuana must be dismissed in San Mateo County Superior Court, said District Attorney Steve Wagstaffe. Plus, with the law retroactively reducing past crimes, an unknown number of those previously convicted are expected to begin petitioning the court for their records to be cleared.

Of the pending felony charges to be dismissed, Wagstaffe emphasized many of those defendants are likely facing other allegations that would keep them behind bars or in the system.

Compared to Proposition 47 — the voter-approved 2014 law that reduced penalties for six crimes such as grand theft or use of illegal drugs — Wagstaffe said he’s not expecting the Adult Use of Marijuana Act to have as much of an effect on the local court. Instead, he believes there are two prime issues of concern — an increase in those driving under the influence and dealers looking to skirt new marijuana tax regulations.

“I certainly understand the will of the people here, they spoke strongly and clearly as to what they want and we will enforce this law and we’re certainly going to follow it to the ‘T,’” Wagstaffe said, emphasizing those who flaunt the rules would be prosecuted.

Attorney John Digiacinto will also be charged with navigating the effects of the new law. As chief defender of the county’s Private Defender Program, Digiacinto said he’s not expecting his office to be as affected as it was with Proposition 47. Although he’s not a proponent of using marijuana, he thinks it’s about time resources are focused elsewhere.

“I think felonies for marijuana is really an unfortunate piece of history from the past. On a scale of what illicit narcotics are available on the black market, … pot is really the least of our problems,” Digiacinto said.

What’s now legal?

Proposition 64 permits adults 21 years and older to smoke marijuana recreationally — although it’s primarily restricted to inside private residences or at a licensed facility such as a pot cafe. It also allows adults to grow up to six plants for personal use. The state is now tasked with creating a new licensing system for commercial operations that’s expected to roll out by 2018.

The law also reduced most criminal offenses. Many felonies previously punishable by up to three years behind bars and $10,000 fines, were reduced to misdemeanors. For example, illegally possessing or growing large quantities of marijuana is now a misdemeanor, Wagstaffe said.

Most of what is illegal under Proposition 64, such as a use by a minor or driving under the influence, are also simple misdemeanors typically punishable with small fines or six months in jail. Smoking in public is likely to result in a ticket or fine.

There are a few rare cases in which marijuana-related crimes can now be charged as felonies. That includes selling to a minor, transporting it across state or international lines, if a person already has two prior convictions since the November 2016 election, and if environmental laws are violated during cultivation, Wagstaffe said.

Changes in the courts

For the pending cases, prosecutors will make a motion to have the marijuana charge dismissed as it comes before the court. Wagstaffe said he anticipates it taking several months but occurring smoothly. He also doubts there are many currently in custody on marijuana-only charges. Instead, most who are behind bars likely have other counts such as for more illicit drugs like methamphetamine, thefts or other types of felony crimes, he said.

Digiacinto agreed it’s unlikely many are facing hard time solely for marijuana charges.

“I don’t think police agencies have been hell bent on getting the D.A. to file these charges for a number of years, unless there’s a larger quantity of pot involved. It’s hard for me to imagine it’ll have much of an impact,” Digiacinto said. “The D.A. has not gone crazy on us, they prosecuted them, but after a while I think they were pretty much in anticipation of where this was going.”

What will take some tweaking is the process for which those who have convictions can petition the courts and Digiacinto said his office would work with the district attorney.

Wagstaffe said he can’t imagine legalizing marijuana having nearly as much of an impact as Proposition 47 had, particularly on the court’s resources.

“We’ve dealt with over 4,000 Proposition 47 petitions in two years,” Wagstaffe said, noting Proposition 64 was more limited in scope. “We don’t expect to see as many, but we’ll see some I’m sure, and that means the court has to deal with it.”

Crimes may continue

What could prove to be a larger shift to those working in the courts or law enforcement is how to prove marijuana-related crimes occurred.

Wagstaffe pointed to the recent cases of maritime marijuana smuggling when panga boats have been found off the San Mateo County coast and federal officials have pointed to Mexican drug cartels as the culprit.

Based on the new law, unless there’s a way to prove the marijuana came from outside California, the smuggling is just a simple misdemeanor, Wagstaffe said. Taking lessons from Colorado, which legalized pot in 2012, he noted there is still a large opportunity for a black market industry and those looking to avoid the new tax regulations — which include a minimum 15 percent sales tax.

Wagstaffe said he’s also concerned about an uptick in those driving under the influence of marijuana, for which there is currently no test to prove. Although Proposition 64 does set aside funds for creating such a test, in the meantime Wagstaffe urged police departments to have more officers undergo specialty training to determine when someone’s driving high.

Although Wagstaffe, the prosecutor, and Digiacinto, the defender, are often at opposite ends, both agreed adults who choose to smoke should remain mindful of the law’s limits.

“Everybody should follow the law and do it legally,” Wagstaffe said. “But because there’s the profit motive involved and the danger has been reduced to a misdemeanor, I think law enforcement will continue to have plenty of activity in the field.”

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