Before Election Day, San Bruno software engineer Stephen Zyszkiewicz was busted on a charge of possessing marijuana with intent to sell — a felony that could have put him behind bars in state prison for three years.
But this month’s passage of Proposition 64 means the 32-year-old is eligible for a much reduced charge — a misdemeanor that carries a maximum penality of six months in county jail and a $500 fine.
“I am hopeful. It’s the will of the voters,” said Zyszkiewicz, who ran The Other Side of the Fence Collective, an unlicensed cannabis operation.
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Proposition 64 does more than legalize the adult use of pot. It grants a reprieve to those already in the criminal justice system — reducing tough penalties and sentences, offering greater leniency to juveniles and wiping the slate clean for some old marijuana offenses, ending a lifetime of stigma.
California now joins Oregon, Washington, Colorado and other states that are re-structuring their cannabis penalties.
The Golden State has long eased its attitude towards possession of small quantities of marijuana. Former Gov. Arnold Schwarzenegger in 2010 signed a law making possession of an ounce or an infraction, with a maximum $100 fine.
But until Nov. 9, the day after Proposition 64 passed with 56.5 percent of the vote, you were a felon if convicted of any of these four crimes: growing more than six marijuana plants, transporting more than an ounce of weed, selling it without a license or possessing marijuana with the intent to sell it.
Now they’re all misdemeanors, unless you’re a repeat offender, sold to minors or have a record of violent or sex crimes. Additionally, some old pot crimes can be expunged so that offenders no longer have to report their conviction to an employer, landlord or anyone else.
“It’s wonderful. You’re not marked or targeted,” said J. Tony Serra, an out-spoken San Francisco-based civil rights lawyer. For former felons, “you don’t have to go get registered like a sex pervert.”
But there is still a wide variation in local laws — and that’s important, because the state requires you to get a local license to grow, transport, test and sell cannabis. Proposition 64 preserves local control over cannabis facilities and land uses — including the authority to ban marijuana businesses completely.
While some cities and counties intend to allow the widespread proliferation of dispensaries and growers, others enacted pre-Election Day laws aimed at limiting the drug’s availability.
Change will come slowly, Serra said. “It will take a little bit of time before law enforcement or prosecutors develop interpretations consistent with the state Attorney General’s Office and promulgate some policies of what they will do,” he said.
“One county is getting rid of pot cases and throwing them out as misdemeanors. Their whole court calendar is shrinking and they’re paying more attention to real crime,” he said. “Another county wants to screw with us.”
Furthermore, state reforms are sharply opposed to federal drug policy, which remains unchanged. So federal convicts — like grower Eddy Lepp of the Mendocino County town of Upper Lake — must serve out their sentences. Lepp, convicted in 2008 of “conspiracy to manufacture marijuana” after federal agents busted him for having more than 1,000 plants, is serving 10 years in a Colorado federal prison.
And it’s still unknown how President-elect Donald Trump’s choice for attorney general — Sen. Jeff Sessions, R-Alabama, who has called marijuana “dangerous” — will respond to the growing number of states legalizing recreational pot. While President Barack Obama did not support changing federal laws, he believed it was best to focus on marijuana kingpins and traffickers.
Meanwhile, San Bruno’s Zyszkiewicz awaits his fate. A soft-spoken and bespectacled graduate of San Jose State, he admits he distributed medical cannabis.
He said he tried to get a commercial license to distribute it in San Mateo County, but was rebuffed. He also was turned down in Campbell and Fremont. “All I’m asking for is a business license for me and all the other delivery services in the county,” Zyszkiewicz said.
So he hid his business in the small closet of his leafy San Bruno condominium and drove his products — flowers, edibles, topical creams and cannabidiol oil sprays — directly to customers.
“I trusted him,” said one customer, “J,” who suffers from arthritis, inflammation and chronic pain in his knee following a bicycle accident five years ago. “I dealt with opiate dependence. I’d rather stay with natural herbal things.
“I can’t go super-long distances and stand in line at big businesses in San Francisco or Harborside,” a major dispensary in Oakland and San Jose, he said. “I could deal with him directly.”
That abruptly ended one morning last June after Zyszkiewicz answered a knock on the door.
Heavily armed officers from the San Mateo County Narcotics Task Force, San Mateo County Sheriff’s Office and San Bruno police raided his home, put Zyszkiewicz and his wife face down on the floor and seized $50,000 in inventory, $7,000 in cash and laptops, he said. In addition to cannabis, they found the psychoactive drug MDMA, commonly called Ecstasy. Zyszkiewicz has insisted, however, that the narcotic did not belong to him.
“They yelled at us to ‘get on the ground, get on the ground,’ guns pointed everywhere. “I’m an innocent person and the medicine was legal and we should get it back,” he said.
Taken to San Mateo County jail, Zyszkiewicz paid $3,000 of his $30,000 bail and was released.
“I’m lucky my credit cards worked,” he said.
San Mateo County District Attorney Steve Wagstaffe said that Zyszkiewicz will be eligible for a reduction of his cannabis charge to a misdemeanor when the case is reviewed on Dec. 1. But he still faces felony charges for transportation, sale and possession of MDMA.
“He does not get to walk out with nothing,” Wagstaffe said.
San Mateo County has an estimated 100 marijuana-related felony charges that are eligible for reduction to misdemeanors, Wagstaffe said. They’ll be dropped one at a time as they come up in court, he said.
The county also is accepting petitions from people who seek to have their old marijuana felony convictions expunged from their records — some as far back as 1970.
His business gone, Zyszkiewicz has moved to Fresno and is selling his condominium to pay bills. He said he plans to fight both the misdemeanor and felony charges, he said.
“I’m an innocent person,” Zyszkiewicz said. “The medicine was legal.”