Metropolitan News-Enterprise


Monday, June 18, 2018


Page 3


Court of Appeal:

Concurrent Super Strike No Bar to Marijuana Felony Reduction


By a MetNews Staff Writer


A defendant who was charged with a super strike concurrent with or after a marijuana felony conviction is still eligible to have the felony reduced under Proposition 64, the Fourth District Court of Appeal ruled Friday.

The opinion was written by Justice Eileen C. Moore of Div. Three, who was joined by Acting Presiding Justice William W. Bedsworth and Justice Thomas M. Goethals.

It interprets the meaning of Prop. 64’s resentencing provision. Under the 2016 initiative, also known as the Control, Regulate, and Tax Adult Use of Marijuana Act, a defendant who is serving time for certain marijuana-related felonies which the Act reduced to misdemeanors is entitled to a corresponding reduction of his or her conviction.

In this case, defendant Nicholas John Smit was serving time for possession of marijuana for sale, Penal Code §11359, one of the former felonies reduced to a misdemeanor by Prop. 64. He was also serving time for four counts of attempted murder, which he had been charged with at the same time as the possession charge.

Smit petitioned for a reduction of his felony possession charge to a misdemeanor, pursuant to the new law. The district attorney, opposing Smit’s petition, asserted that the attempted murder charges barred Smit from having his conviction reduced.

The trial court agreed but was reversed by the appellate court in Friday’s decision.

Prior Super Strikes

The central issue in the opinion is the interpretation of Prop. 64’s language enabling defendants to have their felonies reduced. Specifically, there is an exception for defendants who have prior convictions for any one of a number of enumerated charges. One of those enumerated charges is any so-called “super strike,” of which attempted murder is one.

The district attorney in the case argued that, because Smit was serving time on four super strikes, he fell under the exception to the reduction provision. The court disagreed, noting that Smit was charged concurrently with his four super strikes and the felony he was petitioning to have reduced fell under the new law.

Clarifying the language of Prop. 64, Moore wrote, “a defendant is eligible for relief unless he could have been charged and convicted of a felony violation of section 11359, even if the Act been in effect at the time of the charged incident,” adding:

“At the time defendant was charged with felony possession of marijuana for sale, he had not suffered any prior conviction of a so-called super strike. Thus, had the Act been in effect in 2009, the year of the alleged violation in this matter, defendant would not have been charged, much less convicted, of a felony for possessing marijuana for sale. Being charged with a super strike in the same case in which the defendant is charged with possession of marijuana for sale does not, under the Act, make the marijuana possession charge a felony.”

Change of Protocol

In challenging Smit’s appeal, the district attorney relied on People v. Walker, a 2016 Court of Appeal opinion from this district’s Div. One, interpreting a similar reduction process enacted in 2014 by Proposition 47. In that case, the court read Prop. 47 as barring a court from reducing a felony conviction of anyone who had been convicted of a super strike prior to filing the petition.

Friday’s opinion distinguished the two propositions. Prop. 47, Moore pointed out, states that the resentencing provision itself does not apply to defendants with super strikes. Moore contrasted this with Prop. 64, saying:

“Indeed, it is section 11359, the charging statute, not the remedial resentencing statute that requires proof of a super strike prior conviction. The plain language of section 11359 requires the existence of a ‘prior’ conviction to charge the crime as a felony.”

The case is People v. Smit, G055311.


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