People v. Esquivel CA4/1

DISCUSSION

A. Striking the Conviction for Possessing Marijuana

In arguing that the trial court should have stricken his misdemeanor conviction for possession of marijuana, Esquivel relies on subdivision (d)(2) of Penal Code section 1172.75, which provides that upon resentencing a defendant and in addition to striking any now-invalid prison prior enhancements, “[t]he court shall apply . . . any other changes in law that reduce sentences.” Section 11362.1 generally makes it legal for persons 21 years of age and older to possess less than 28.5 grams of marijuana. Citing People v. Rossi (1976) 18 Cal.3d 295 (Rossi) and similar cases, he contends that a conviction cannot stand and must be reversed if the conduct underlying that conviction is no longer illegal before the entry of final judgment. The holding in Rossi is not quite so broad as Esquivel suggests. Rossi was a decision that applied the general principles of In re Estrada (1965) 63 Cal.2d 740 (Estrada) to a situation where, as here, the Legislature completely eliminated any sanction for a particular type of conduct. Estrada had established a presumption to assist in interpreting statutes that reduce punishment for…