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She Was Prosecuted for Pot; Then Prop 64 Gave Her a Second Chance

In November 2016, California voters legalized marijuana and gave the courts authority to change the sentences on certain marijuana crimes. It's provided hundreds of people in San Diego County with relief. But for many, the damage is already done.

Andrea Witkowski, 27, is one of nearly 700 people whose marijuana conviction was either reduced or dropped in San Diego County because of Proposition 64. / Photo by Vito Di Stefano

Andrea Witkowski spent the night of the 2016 presidential election at home not by choice but by force.

Her ankle monitor had rules. She could take the dogs to the park for one hour a week. She could go to the laundromat and the grocery during pre-determined times. Otherwise she’d get a phone call saying she was out of bounds — and at risk of violating probation.

As she hit refresh on an election results page, she thought of the plea deal she’d taken over the summer that kept her out of jail. Police had busted into her San Diego home looking for someone else. They found marijuana she was helping distribute as part of what she thought was a legal effort.

Now she and her boyfriend watched as the news flashed across her screen: Proposition 64 had passed with 57 percent of the public’s support, legalizing marijuana for recreation in California.

“We literally jumped on the couches cheering,” Witkowski remembered. “A weight was lifted off our shoulders. It felt like the nightmare was finally over.”

The ballot measure allowed people like her — who’d been convicted of felony possession — to seek a reduced sentenced. Some cases were dropped altogether, providing a kind of mass legal relief that is rare.

Overnight, those who’d been convicted of marijuana crimes that were either no longer an offense, or a lesser offense, under state law had the ability to alter their records. So far, nearly 700 people, involved in more than 500 cases going back nearly 20 years, have qualified in San Diego County.

But for many, the damage is already done. They lost work, housing and federal aid because of their convictions.

Dozens of people who filed petitions with the court did not return messages for this story, and dozens more declined to comment through their lawyers. Jail time and drug charges still carry a social stigma, and people are ready to move on with their lives.

These Californians were threatened one day with incarceration and cleared of serious wrongdoing the next. Today they watch in the shadows as the prohibition era passes through the criminal justice system.

But those charged in San Diego County were lucky, in a sense. The same prosecutors who’d once tried to put them in jail recognized the rapidly changing opinion of marijuana among the public.

Assuming Proposition 64 was going to pass, the San Diego County District Attorney’s Office began preparing for the high number of resentencing petitions. In October 2016, prosecutors sat down with the public defender’s office and the criminal supervising judge so that no one was caught off guard when these cases came back across their desks.

“We learned from our experiences with Prop 47, and decided that we would be proactive so we could ensure the most efficient process possible,” Steve Walker, a spokesman for the DA’s office, wrote in an email.

A similar situation played out in San Francisco, where District Attorney George Gascon said he wanted to “undo the damage that this country’s disastrous, failed drug war has had on our nation and on communities of color in particular.”

Elsewhere in California, prosecutors have been slower to act. Some have made clear they don’t intend to do anything at all, and they don’t have to, because Proposition 64 empowered the courts to retroactively change pot convictions — placing the burden not on law enforcement but on inmates or the defendants themselves.

San Bernardino County District Attorney Mike Ramos told the Daily Press in Victorville last month that clearing the felony convictions for tens of thousands of people would be a “huge disservice to the public.” He spoke of cases in which more serious charges like auto theft were dropped in exchange for a defendant going to drug court. Removing a felony marijuana charge, he complained, could mean a person’s record is suddenly cleared.

Other law enforcement agencies are hesitant to even begin the process of looking for cases to overturn because of the time and resources required. They note that the new law did not set aside funding for either prosecutors or public defenders.

Those justifications are hard to swallow if one believes, as Witkowski does, that they did nothing wrong.

“She broke a law that never should have been a law in the first place,” said her attorney, Michael Cindrich, a former prosecutor.

Serious Charges, and a Plea

The sound of the door being knocked open by battering ram startled Witkowski awake. It was an October morning, in 2014, and men with weapons were rushing through her Ocean Beach cottage shouting loud commands.

The previous week, she and her boyfriend had been back east for a wedding. They’d left control of the home and the dogs with another friend, who police suspected was a drug dealer. Neither Witkowski nor her boyfriend appeared in the search warrant.

“They didn’t even know our names,” she said.

The noise and the sight of firearms had left her anxious and confused. The detective, she recalled, had “icy-blue eyes” and a “skeleton-thin face.” He asked about the marijuana inside the home, and she told him she had a physician’s recommendation — which was true. But she claimed the pot cookies and other supplies were for personal consumption.

She had been helping to transport edibles and other marijuana products to other people with physician recommendations as part of a collective, known as RNR Remedy, trying to operate within the bounds of the state’s vague marijuana laws. But the officers saw large amounts of pot, cash and other clues as evidence that it was really a criminal operation.

All told, the cops confiscated 7.5 pounds of plant material, 484 marijuana-infused cookies — some of which were packed for delivery — and another 102 cookie dough balls, plus $2,100 cash.

The detective also pushed her to unlock her phone and then took a number out of it. That number belonged to the friend who’d recently watched the home. Police tricked him into returning to his San Diego apartment on the other side of the city, where he was arrested with five pounds of marijuana trim and some concentrated cannabis.

All three were charged with possession of marijuana with intent to sell, a crime punishable by up to three years in jail. Witkowski was 25 and working then as a waitress. She kept the news to herself. Not even her family knew.

For months, her attorney, Nathan Shaman, pulled at the cloak surrounding the initial investigation. He won the right to view part of the search warrant, which had been sealed because it relied on a confidential informant.

In court documents, Shaman complained about the lack of evidence connecting Witkowski to the friend who’d watched her home. She didn’t appear in the early police reports, he said, and she was missing from potentially incriminating messages between the other defendants in the case.

Andrea Witkowski, 27, at her San Diego home. / Photo by Vito Di Stefano

“I had never been in trouble in my life,” Witkowski said. “I didn’t think anything was wrong because I was providing to patients.”

The stress wore her down. There were days, she said, when she couldn’t get out of bed. At one point, she confided in a cousin, but the news spread among her immediate relatives. “It ripped my family apart,” she said.

Because of the nature of the criminal case, she was forced to waive her Fourth Amendment rights, which protect citizens from unreasonable searches and seizures. Law enforcement officers could come in and out of her life without probable cause.

On Sept. 30, 2015, police appeared again. This time, Witkowski was alone.

She’d put distance between herself and the medical marijuana collective, holding down other jobs, but she continued to live in that world. As far as police were concerned, the fresh supply of marijuana in the home belonged to her and her alone. To wit: 306 grams of concentrated cannabis, 98 marijuana-infused lollipops, 48 chocolate bars, roughly 60 cookie dough balls, a large Tupperware of butter and about $10,000 cash.

Police also found email messages of potential marijuana advertisements — evidence, the prosecution said, that Witkowski was dealing, not serving patients. As the trial approached, the DA’s office prepared its argument that the amount of product in her possession was beyond the scope of what the collective needed. The cash, prosecutors said, was proof of a for-profit business.

At a hearing a week later, a judge increased her bail and she was taken, again, into the custody of sheriff’s deputies.

Now facing 4 to 6 years in jail, Witkowski hired Cindrich, the former prosecutor who specializes in marijuana defense. He was prepared to argue that the collective was operating within the bounds of state laws and that compensating workers for their labor was reasonable.

The founder of the medical marijuana collective was willing to testify on Witkowski’s behalf, even at the risk of incriminating himself. It would not have mattered if the collective was following state rules. In California, law enforcement can arrest first and sort out the compliance issues later, and the mere threat of prosecution can be used as a deterrent on the stand.

But it never came to that. On May 12, 2016, prosecutors offered to dismiss the second case if she pleaded guilty to the first. The state would seek “alternatives to custody” if she could prove at sentencing that she had a full-time job.

She cried. She took the deal. The judge committed her to an ankle monitor and some therapy programs, plus fees that included the cost of her own probation.

In retrospect, Cindrich thinks the defense he’d prepared was a decent one but acknowledged one potential weakness. Prosecutors had some evidence to suggest the shipments were scheduled to go to people out of state.

“When you look at the amount of potential custody time and the fact she walked away without any custody, I thought it was a good deal,” he said. “There was no guarantee as to whether the jury would buy her defense.”

A Second Chance

Some nights, the ankle monitor would wake her with a low-battery notification. She’d grab an extension cord and sleep with one of her limbs plugged into the wall.

It was among the least of her worries.

Witkowski estimates that the arrests and subsequent court cases left her with around $10,000 in credit card debt, between the lawyers and the bail and the new electronics needed to hold down a job. She’s aware of at least one employer who looked at her criminal history — after multiple interviews — and passed. Her current boss, she said, knows the details of her cases because she disclosed them during the hiring process, and he was able to look beyond.

Her petition to reduce the felony conviction to a misdemeanor was filed one day after Proposition 64 passed, and a judge approved it one day later.

She feels like the law has given her a second chance. But if she’s guilty of anything, she said, it was not understanding the risks of the medical marijuana trade.

Her boyfriend also took a plea deal and, sometime after Proposition 64 passed, moved back east. His felony conviction, too, has been reduced.

Witkowski talks today about getting back into the marijuana industry, but not here. She assumes the regulations, and barriers to entry, are less severe in other states.

An ashtray in her living room seems to capture her thinking. It reads, “Make like a hippie and blow this joint.”

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