IN THE NEWS: DA won’t direct clean sweep of pot convictions in San Bernardino County

By Shea Johnson
Staff Writer

Posted Feb 8, 2018 at 4:36 PM Updated Feb 9, 2018 at 11:28 AM

While some California prosecutors begin to retroactively expunge or reduce pot convictions en masse as afforded by Proposition 64, which legalized recreational marijuana, San Bernardino County’s top law enforcement official says he will “absolutely not” follow suit.

District Attorney Mike Ramos told the Daily Press this week despite actions by his peers in San Francisco and San Diego to proactively review cases and seek criminal record changes, this county’s prosecutors will instead follow the current as-requested formula set forth in the proposition.

“We have a system in place where an individual can petition the court to get their record (cleared),” he said by phone. “I think that system has worked pretty well for those who really want to rehabilitate and change their lifestyles.”

Meanwhile, advocacy groups like the California branch of the National Organization for the Reform of Marijuana Laws (NORML) support pending state legislation that would require the courts to automatically clean up records for individuals convicted of marijuana offenses that are either now no longer or lesser crimes.

NORML argues that “many aren’t aware that they qualify for re-sentencing, or can’t afford to bring a petition.”

Phyllis Morris, the Public Defender for San Bernardino County’s Public Defender’s Office, said that a court-backed system purge would remove the burden off her department, which is often under-resourced.

“The problem with recent laws is that they really put the burden on the client to act,” Morris told the Daily Press, “so we’re in this rehabilitative season — I don’t know how long it’s going to last — but if people have anything on their record, or any questions, they need to act.”

Currently, if someone contacts the Public Defender’s office, attorneys will research their case to determine all avenues for which they might be eligible, meaning potential changes not only due to Prop. 64 but also Prop. 47, the Three Strikes Reform Act, an incorrect rap sheet and other elements.

“We look at the global picture,” she said.

Her office will prepare the petitions and submit them to the DA’s office for review. If prosecutors sign off, it’s a done deal. If not, her office will file a petition with the court and request a hearing.

Either way, a court will ultimately have to OK the individual’s petition, but a judge will know beforehand whether it’s being contested or uncontested by the DA’s office.

Neither Morris or Ramos could immediately provide the most updated number of Prop. 64 petitions that have crossed through their offices since it passed in November 2016.

But according to potentially incomplete data reported by county courts throughout the state to the California Judicial Branch, there were 267 petitions submitted here, including two juvenile petitions, between November 2016 and September.

It’s less than half of what was submitted to courts in Los Angeles (617) and nearby Riverside (627) counties over the same period.

Speaking anecdotally, Morris said her office has seen less activity with Prop. 64 petitions than they have with Prop. 47, the ballot initiative approved in 2014 which reduced certain felonies to misdemeanors.

“And that’s what’s puzzling us,” she said, adding that even a significant number of their Prop. 64 cases had initially been submitted as Prop. 47, then individuals were told they qualified for the former.

But Morris said the recentness of Prop. 64 has likely played some factor in the lower number of petitions in this county.

“In my opinion, it seems like there was more talk, more debate around Prop. 47,” she said.

The Public Defender’s office does attend community outreach record-clearing clinics, however, which are spurred by community organizations first contacting them through a division branch. The clinic locations are hosted by the organizations, typically at churches, but attorneys do the work.

The office has so far conducted them in Victorville, San Bernardino, Fontana and Rancho Cucamonga, either on the weekend or in the evening after attorneys have wrapped up their daily calendar.

Ramos insisted he was “all for” petitioners being granted expungements or reductions in appropriate cases, yet also described how marijuana deals were often a part of the criminal economy perpetuated by gang members.

A clean sweep of what he estimated were 50,000 to 100,000 marijuana-related cases on file in this county would be a “huge disservice to the public,” he added, because of the intricacies involved in certain cases.

For instance, the DA’s office has prosecuted cases where a suspect might be facing auto theft and possession of marijuana charges. A plea bargain could have dismissed the more serious auto theft charge in an effort to push the suspect into drug court.

A blanket approach would enable that type of suspect to have his record cleared, he said, raising the specter that there was too much opportunity for collateral damage in the process.

The DA’s office also did not receive any additional funding to pore over marijuana cases nor do they have the staff to do so. It’s a resource deficiency he said he recently discussed with L.A. County District Attorney Jackie Lacey, who shares his views.

San Francisco District Attorney George Gascon, when he announced last week that his office would retroactively apply Prop. 64 to every marijuana case since 1975, said the city was leading efforts to “undo the damage that this country’s disastrous, failed drug war has had on our nation and on communities of color in particular.”

Ramos said he had not since reached out to Gascon or any other top county prosecutor beyond Lacey.

“I’m pretty solid on my position.”

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