Prop 64 and old marijuana convictions

Last night, California voters passed Proposition 64 which made sweeping changes to the marijuana laws. Possession by adults over 21 for personal, recreational use is now (as of 12:01 Wednesday November 9, 2016) legal in California. 

There are also changes to the laws regarding prior convictions for possession, cultivation and distribution or possession for sale of marijuana. 

What is now legal? 

Adults over 21 may now possess 28.5 grams (one ounce) or less of marijuana or less than 8 grams of concentrated cannabis – Health and Safety Code 11362.1

Adults over 21 may now plant and cultivate up to 6 plants for personal use – Health and Safety Code 11362.2

Transporting or giving away (NOT selling) less than an ounce of marijuana or less than 8 grams of concentrated cannabis is now legal – H&S 11362.1
Keep in mind – until something changes, marijuana is still illegal under Federal law. 

What about prior convictions?

You may be able to have the court redesignate, reclassify, reduce or completely dismiss your prior case. Want to clean up your old marijuana convictions? Give me a call or text me: 


Here are the affected prior charges and changes: 

Possession 11357(a) – if you are over 21, you may petition for dismissal of the charge. Over 18, but under 21? If it was a misdemeanor, you may have it reduced to an infraction. 

11357(b) – same as above. Dismissal of over 21, reduction if 18-20. 

11357(c) – possession of more than an ounce – modify to 11357(b)(2) – still a misdemeanor. 

11357(d) – possession of less than an ounce on school grounds – modify to 11357(c) – still a misdemeanor. 

11358 – cultivation of less than 6 plants – over 21 you can have the case dismissed. 18-20 years old, modify and reduce to an infraction. More than 6 plants – reduce to misdemeanor. More than 6 plants with aggravating circumstances – reclassify to “wobbler” meaning it can be a felony or misdemeanor, but eventually could be reduced to a misdemeanor and dismissed. 

11359 – possession for sale (any amount) – modify and reduce to misdemeanor. More than six plants  or possession for sale using a minor under 20 – can be reclassified as a “wobbler” meaning it can be a felony or misdemeanor, but eventually could be reduced to a misdemeanor and dismissed.

11360 – transportation or giving away without compensation (not an actual sale) – over 21 it can be dismissed.  Other variations of 11360 may be reduced to infractions or modified to “wobblers” depending on the facts. 


You MUST file a petition with the court where your conviction occurred. 

If you have a marijuana conviction from Orange County, give me a call or text me at 714.532.3600 to discuss cleaning up your old cases. 

You can email me at 

Shoplifting and Corrective Education Company (CEC) class

There’s another twist to shoplifting cases now – Corrective Education Company (CEC).


I recently heard about somebody that was stopped and accused of shoplifting in a large store – it rhymes with Walmart – and was told that either they admit guilt and agree to go to a “diversion” class through Corrective Education Company or they would call the police and have them arrested.

I have posted previously about the Civil Demand letters that retailers send out, about shoplifting in general and the defenses to shoplifting and theft.  The “referrals” to CEC is a relatively new thing though.


First – Corrective Education Company.


That company – Corrective Education Company or CEC – has been sued for essentially extorting people based on shoplifting incident. [At the time of the writing of this post, I do not know the outcome of that lawsuit]   They “offered” you an option to go to the class they steer you to and to pay $500 or they’ll call the police.

Horribly unethical and potentially illegal for them to do.

Here’s how this works: The retailer (their loss prevention person) accuses you of shoplifting. They then give you the option to either sign a piece of paper admitting guilt and agree to go to CEC’s program for $500 OR they’ll call the police. CEC calls this a voluntary “choice” on the part of the people accused of shoplifting. Not much of a choice.

Scared, you admit guilt (whether or not the legal elements of theft are true) and sign their paperwork and agree to go the class. If you follow through and do their class and pay their money, CEC gets paid… but guess what? The store also gets a cut. That’s just wrong.

By getting part of this money, the stores claim that the money is used to offset the cost of retail theft, loss prevention, etc. While that may be partially true, it also creates an incentive for the stores to accuse people of theft, even if the legal elements aren’t met. No court, no prosecutor, no defense attorney to stand up for the rights of the accused…. so it’s easy to accuse someone and give them this “choice” of paying or being arrested. They’re preying on those they choose to detain. Juveniles? Minorities? Those they think won’t stand up for themselves and will just pay the money and attend the “class”?

This should be dealt with in court, not through coercive tactics to get money

California law has a remedy for the stores to recover any costs in a shoplifting incident. That’s a civil demand letter and potentially a lawsuit. If a person is charged in court with a criminal offense and convicted, they are required by law to pay for any damages. Even if no charges are filed, the store can still send a civil demand letter as authorized by Penal Code 490.5. If the person doesn’t pay the civil demand, the store can still sue in court for any damages they have suffered as a result of this incident.

But by coercing people into the CEC class, they are in essence bypassing the law. Bypassing the court. They’re becoming the prosecutor and the judge as well as doing away with the defense attorney. They’re forcing admissions of wrongdoing. They’re collecting money without a determination in court of liability or wrongdoing.

So should I attend the class?

In general, if the police were going to be involved, it would be on the day you were stopped in the store. Yes, they could theoretically file a police report afterwards, but in the vast majority of cases, they don’t. They instead bank on the easy money from the CEC program and their cut of that money.

They can (and probably will) send you a letter about the program and they may also send a divil demand letter and say it’s a “fine” you have to pay. It’s not a civil “fine” – it’s a civil demand letter. California law allows a merchant to demand up to $500 following a theft incident. These letters are typically sent by the store or a law firm acting on their behalf. They are all bark and no bite.

If you ignore the letter, they have to make a choice – let it go or file a small claims case against you. I have never heard of anyone actually being sued if they ignore the letter. Why don’t they do anything? Because lawyers cannot get involved in small claims cases and it isn’t worth the store’s time to pursue a small claims case over such a minor amount.

There is one law firm in Florida that does nothing but these kind of civil demand letters on behalf of stores. They were quoted in a Wall Street Journal article as sending out over one and a half million letters a year, but they filed less than 10 lawsuits. Not ten percent. Not ten thousand. Ten. The odds are overwhelming that they won’t do anything.

If you’re reading this, it’s probably because you’ve already been stopped, accused and coerced to go to their costly “class”.  Ultimately, how to proceed is your choice.  They forced you to sign a piece of paper admitting guilt.  Will that stand up in court?  Every case is different, but under threat of being arrested or admitting guilt, that statement you made may never see the light of day in court. Will they pursue you if you don’t attend the class and pay the money?  Just like the civil demand letters, I don’t see them pursuing a small claims case over $500.  Even if they did, I’m not sure how their little tactics would look to a judge hearing the case.  Any letter they send to try and force you to their class and to pay probably won’t comply with the Penal Code requirements for a civil demand.

I practice out of Orange County.  If you’re in this situation here and want to discuss your case further – or if you’ve been arrested and are facing a criminal case for theft, I’m available to discuss your case with you.

Call or text:  714.532.3600


Joe Dane, Orange County Criminal Defense Attorney

Can a guest allow the police to search your house?

I had the question asked: can a guest who is staying in your house allow the police to search? What about if they were to call the police and invite them to search? Would that evidence still be admissible against the homeowner? 

Apparent authority is the key

This is more than just a yes or no answer. The police must have voluntary consent from a person who is authorized to give consent over the area or property to be searched. 
In your scenario, the police must act reasonably and the consent must be from someone with “apparent authority” to give the consent. That means that in the circumstances, it must be fairly clear and reasonable for the person to assume the person giving consent has the authority to do so. 
For example, if a person is stopped driving a car, the car is registered to them and they give consent, it’s pretty clear her the driver had the authority over the car to give consent. 
Let’s take a scenario where the person was left in charge of the home while the owner was away. If the police show up, that person answers the door and allows a search, it could be seen as looking like that person had authority over the house. Unless the homeowner actually gave a large degree of control and access over the house, the guest didn’t really have the authority to allow the search, but that isn’t the question. 

Searches must be reasonable

In a search analysis, the Fourth Amendment requires that the search is reasonable. That means that the police acted reasonably under the circumstances. In our scenario, if the police found something and charges were filed, there surely would be a motion to suppress filed. The DA would argue just the police were acting reasonably and acted on he apparent authority. The specific facts would then come into play – what was said, what did the police know at the time of the search, what actual authority did the guest have over the house, etc. 
Search issues are always extremely fact-dependent. Change the facts slightly and it may change the analysis. If this is more than a hypothetical, time for a lawyer that is well-versed in search and seizure law. If this is your concern in the future, don’t entrust your house to someone you don’t trust 1,000,000%.

To discuss your particular situation in more detail, reach out. 

Call or text: 714.532.3600


Attempted murder and aggravated assault – can they charge both?

Why does the District Attorney charge both attempted murder and assault with a deadly weapon?

Can you be charged with both crimes even though it was one event?  Yes, you can be charged with both. The prosecutor will often charge a situation they believe to be attempted murder with the related offense of aggravated assault. Why? Because the crime of attempted murder requires a specific intent to kill and the aggravated assault is a “general intent” crime.


Attempted murder (Penal Code section 664/187)

In order to prove the crime of attempted murder, the prosecution must prove beyond a reasonable doubt that first, there was an intent to kill.  If the specific intent to kill was not present, then it cannot be attempted murder.  How do they try to prove this?  If the defendant said something during the incident or afterwards to the police about their intent, obviously that would be the DA’s evidence of intent.  They can try to prove it based on circumstantial evidence as well.  They may believe that certain actions can only mean one thing – an intent to kill.  Obviously, actions can be interpreted many ways, so it’s not necessarily that there was an intent to kill based on the facts.  So why charge the other crime of aggravated assault? If this went all the way to trial and the jury did not find that there was an intent to kill, they could still convict on the aggravated assault charge.

Aggravated assault (or assault with a deadly weapon) – Penal Code 245

Assault with a deadly weapon is a “general intent” crime.  That means that the person accused doesn’t have to specifically intend any injury, death or other outcome.  A general intent crime is committed if the person willfully (meaning not accidentally) does an act that is against the law.  In this case, assault with a deadly weapon requires that the person do something (an assault) and with a deadly weapon.  Those are the two elements – no specific intent for any particular outcome is required.

Other times, it’s charged that way so there is a lower crime that they can use in plea negotiations… dismiss the attempted murder in exchange for a plea to the aggravated assault.

Is your case overcharged? I can’t say based just on how it’s charged.  After a discussion of the facts and a thorough review of all the reports, witness statements and evidence in the case, we’ll be in a better position to assess the strengths and weaknesses of the prosecution’s case… along with any defenses like self defense.  If this is your situation or you’re researching for somebody you know that’s facing these serious charges in Orange County, contact me so we can discuss how to defend this case for the best possible outcome.

Joe Dane, Orange County Criminal Defense Attorney

Call or text:  714.532.3600


What can’t I bail them out of jail? Orange County criminal “no bail” holds

Questions about posting bail?

Recently, I was asked why a person couldn’t be bailed out of jail.  The follow-up question was, “I thought you were innocent until proven guilty?”


You’re right – there is the presumption of innocence in almost every aspect of criminal law, but when it comes to setting bail, the judge considers the charges to be true.

Even with no prior criminal history, a person may not be able to post bail.  With a criminal history, other reasons may exist.

How is bail set?

The number one priority listed in the Penal Code is the safety of the public. (See Penal Code 1275) Most people think it’s to make sure somebody shows up to court. True, that’s a component, but public safety is the primary purpose of bail.  Of course, if a person has a long criminal history, especially a history of failing to appear (FTA) in court, that can increase the bail the judge sets.

Only a few situations exist where somebody can be denied bail. Capital murder, for example is a “no bail” situation. If the person is alleged to have violated their felony probation, they can be held “no bail” as well. Other times, bail is set, but there can be a hold where the person cannot post the bail and get out. Under Penal Code 1275.1, there can be a requirement that before posting bail a person must prove that the source of the money to be used to post bail comes from legitimate sources. For example, under the law a person shouldn’t be able to rob a bank and then use the stolen money to post bail. Same thing with certain other cash-based offenses (drug cases, pimping and pandering, embezzlement, etc.).

Then there are “holds”. If a person was on parole at the time of an offense, they can be held on a parole hold and cannot be bailed out. Similarly, if there is an immigration hold or a hold from another county for another case, that can lead to an inability to post bail.

So yes, a person is entitled to bail. The specific charges, allegations and entire situation must be assessed.  But a defendant is entitled to reasonable bail and is entitled to a bail review by a judge to determine what the true amount of the bail should be… or if they should even be required to post bail at all.

To discuss your Orange County criminal matter – or to discuss how to bail somebody out of jail if possible, contact me –

Call or text:  714.532.3600


Joe Dane, Orange County Criminal Defense Attorney