ELLIOTT HAS NOT EXPUNGED 5K CASES PROMISED

City Attorney’s Office said only 500 qualified for relief

At a wind-swept news conference on the steps of the downtown Hall of Justice on Sept. 25, 2019, City Attorney Mara Elliott announced that lawyers in her office had just filed court motions to dismiss marijuana convictions and wipe clean the records of 30 people.

It was just the start, Elliott said that day. “That is the first of at least 5,000 we will be filing,” she told reporters.

But that’s not exactly how it worked out. In all the office ended up filing motions on about 10 percent of that total — roughly 500 cases total, Elliott’s director of communications Hilary Nemchik said this week.

The reason: the office initially overestimated the number of cases eligible for relief, apparently by a factor of 10. In February 2020, just a few months after Elliott made her announcement, city prosecutors quietly completed their work and filed all their petitions.

Nemchik said when prosecutors began reviewing cases by consulting three different databases, they found that not many meet the criteria for dismissal.

“Of the cases that involved a cannabis charge, not all resulted in conviction, and the majority were previously dismissed as part of a plea bargain in which the defendant pled guilty to another charge, or were just simply dismissed,” she wrote. “The 500 cases we petitioned to dismiss involved an actual cannabis conviction.”

That total number is also less than what the state Department of Justice, which forwarded lists of potentially eligible cases to all state prosecuting agencies, said they sent to Elliott’s office. A spokesman on Friday said the DOJ sent 1,532 “re

cords with potentially qualifying convictions” to the city.

The San Diego County District Attorney’s Office in February 2020 filed a mass motion reducing nearly 26,000 felonies, and dismissing entirely another 1,000 misdemeanors. That motion was finally granted on Feb. 5 by a Superior Court judge.

How many of the estimated 500 cases from the city, where misdemeanors are handled by city prosecutors and not the district attorney, have been granted by the courts is not known. In contrast to their county colleagues, city prosecutors filed individual motions for each case. San Diego Superior Court spokeswoman Emily Cox said the court has not tracked the exact number of how many have been processed.

The effort to dismiss and reduce marijuana convictions is an outgrowth of Proposition 64 and a related law passed by the Legislature in 2018. The proposition, which made some marijuana use legal, also allowed people with misdemeanor convictions to ask courts to have those charges dismissed, and people with felony convictions have them reduced to misdemeanors.

But by 2018, faced with the time-consuming and expensive process, few people had taken advantage of the law. That led to the legislation requiring the state Department of Justice to review and identify potential cases, and forward that list to local prosecutors, who were then tasked with reviewing the list and forwarding cases to local courts by July 2020 — a process meant to take the burden of doing so off of individuals.

While the 2018 legislation set a deadline for prosecutors to identify cases and file with the court, it set no deadline for courts to act. It took San Diego a year to act on the district attorney’s motion, a delay partly due to the pandemic. Many other courts in the state have also been slow to act: Fresno County has cleared 6 percent of the records, Madera County, none, for example.

That worries advocates, because companies that conduct background checks for employers typically consult court records. If those records don’t reflect that cases have been dismissed or charges reduced, they could haunt applicants — a concern with even more urgency as workers who lost jobs because of the pandemic re-enter the job market.