Health & Safety Code Section 11350 States:

 

“(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison.”

 

Drug possession requires that the offender knowingly and intentionally possess a drug/controlled substance without a valid prescription in a quantity usable for consumption or sale.

 

The prosecution must prove that the offender knew the drug was a controlled substance and that he or she had either “actual” possession or dominion (control) over it, either alone or with another person. Possession may also consist of “constructive” possession, which involves property which is not immediately held, but which the accused has the right to hold or to access. Commonly, this occurs when the defendant has the keys to a car or locker where the controlled substance is concealed. Possession is defined under the common law as knowing of something's presence and having physical control of it - “actual possession”, or “constructive possession” - having the power and intention to control contraband.

 

 

POSSESSION OF A CONTROLLED SUBSTANCE. What the DA MUST Prove Beyond a Reasonable Doubt?

 

Jury Instruction 2304. Simple Possession

 

The defendant is charged [in Count ] with possessing <insert type of controlled substance>, a controlled substance [in violation of <insert appropriate code section[s]>].

 

To prove that the defendant is guilty of this crime, the People must prove that:

 

1. The defendant [unlawfully] possessed a controlled substance;

2. The defendant knew of its presence;

3. The defendant knew of the substance’s nature or character as a controlled substance;

4. The controlled substance was <insert type of controlled substance>; AND

5. The controlled substance was in a usable amount.

 

A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.

 

[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed.]

 

[Two or more people may possess something at the same time.]

 

[A person does not have to actually hold or touch something, to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]

 

[Agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.]

 

<Defense: Prescription>

 

[The defendant is not guilty of possessing <insert type of controlled substance> if (he/she) had a valid, written prescription for that substance from a physician, dentist, podiatrist, [naturopathic doctor], or veterinarian licensed to practice in California. The People have the burden of proving beyond a reasonable doubt that the defendant did not have a valid prescription. If the People have not met this burden, you must find the defendant not guilty of possessing a controlled substance.]

 

First time drug ‘possession’ convictions will result in rehab.

 

 

Drug possession sentencing law in California has changed. There is now an emphasis on rehabilitation rather than punishment. Therefore, a conviction will most likely result in mandatory attendance in a drug program. However, if you do not successfully complete the drug program, you could be sentenced to harsher penalties, including incarceration. If you or a love one is charged with drug possession, protect your legal rights.

 

PC 1000 vs. Prop 36.

 

In state court in California, punishment for drug possession offenses falls primarily into two categories:

 

1. A defendant may be sentenced pursuant to the provisions of Penal Code Section 1000 (PC 1000). If the case is resolved pursuant to this section, the defendant must first plead guilty, but is NOT sentenced. He or she must attend an outpatient rehab program, and upon its successful completion, the case is dismissed, resulting in no criminal conviction (for this offense) appearing on the defendant’s record.

 

2. A defendant may also be sentenced pursuant to the provisions of Proposition 36 (Prop 36). Unlike PC 1000, Prop 36 always results in a conviction being added to the defendant’s criminal history. Prop 36 is merely a vehicle by which a convicted drug offender may avoid incarceration in jail or state prison.

 

Sales, Transportation, Trafficking

 

Drug trafficking is basically the illegal sale of street drugs, prescription drugs, or other “controlled” substances. Punishment is traditionally severe for ‘sales’ convictions. For example, Cocaine Base.

 

Health & Safety Code Section 11351.5 States:

 

“Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale cocaine base which is specified in paragraph (1) of subdivision (f) of Section 11054, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of three, four, or five years.”

 

Also called drug transportation or distribution, drug trafficking involves moving the drugs from place to place. If drugs are transported across state lines, drug trafficking becomes a federal crime.

 

POSSESSION FOR A SALE OF A CONTROLLED SUBSTANCE. What the DA MUST Prove Beyond a Reasonable Doubt?

 

Jury Instruction 2302. Possession for Sale of a Controlled Substance

 

The defendant is charged [in Count ] with possession for sale of <insert type of controlled substance>,a controlled substance [in violation of <insert appropriate code section[s]>].

 

To prove that the defendant is guilty of this crime, the People must prove that:

 

1. The defendant [unlawfully] possessed a controlled substance;

2. The defendant knew of its presence;

3. The defendant knew of the substance’s nature or character as a controlled substance;

4. When the defendant possessed the controlled substance, (he/she) intended to sell it;

5. The controlled substance was <insert type of controlled substance>; AND

6. The controlled substance was in a usable amount.

 

Selling for the purpose of this instruction means exchanging <insert type of controlled substance> for money, services, or anything of value.

 

A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.

 

[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed.]

 

[Two or more people may possess something at the same time.]

 

[A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]

 

[Agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.]

 

Be mindful, ‘Transportation’ carries punishment greater than mere possession or even possession for sale.

 

Health & Safety Code Section 11379 States:

 

“(a) Except as otherwise provided in subdivision (b) and in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, except subdivision (g) of Section 11056, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d) or (e), except paragraph (3) of subdivision (e), or specified in subparagraph (A) of paragraph (1) of subdivision (f), of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in the state prison for a period of two, three, or four years.”

 

All three of these offenses are charged as felonies, subjecting the accused to the possibility of being sentenced to incarceration in state prison. However, currently under state law, defendants accused of transportation of controlled substances, if transported in ‘personal use’ quantities, are presumptively eligible for probationary sentences and programs.

 

POSSESSION FOR A SALE, TRANSPORTATION OF A CONTROLLED SUBSTANCE. What the DA MUST Prove Beyond a Reasonable Doubt?

 

Jury Instruction 2300. Sale, Transportation of a Controlled Substance

 

The defendant is charged [in Count ] with (selling/furnishing/administering/giving away/transporting/importing) <insert type of controlled substance>, a controlled substance [in violation of <insert appropriate code section[s]>].

 

To prove that the defendant is guilty of this crime, the People must prove that:

 

1. The defendant (sold/furnished/administered/gave away/transported/ imported into California) a controlled substance;

2. The defendant knew of its presence;

3. The defendant knew of the substance’s nature or character as a controlled substance; [AND]

4. The controlled substance was <insert type of controlled substance>

<Give element 5 when instructing on usable amount; see Bench Notes.> [AND

5. The controlled substance was in a usable amount.]

 

[Selling for the purpose of this instruction means exchanging a controlled substance for money, services, or anything of value.]

 

[A person transports something if he or she carries or moves it from one location to another, even if the distance is short.]

 

[A person administers a substance if he or she applies it directly to the body of another person by injection, or by any other means, or causes the other person to inhale, ingest, or otherwise consume the substance.]

 

[A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.]

 

[The People do not need to prove that the defendant knew which specific controlled substance (he/she) (sold/furnished/administered/ gave away/transported/imported).]

 

[A person does not have to actually hold or touch something to (sell/furnish/administer/transport/import/give it away) [it]. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]

 

The majority of border bust and large drug trafficking arrests end up as federal cases. Federal drug crimes are very serious because mandatory minimum prison sentences apply and are always imposed. Depending on the quantity of drugs involved, you could be subject to a sentence of five to 10 years in prison. If you have a prior conviction, the mandatory minimum sentences are doubled.

MARIJUANA – Compassionate Use (Medical Marijuana), Sales, Transportation:

 

The Law

“It is illegal to knowingly have marijuana in your possession unless legally authorized for medical purposes.”

 

 

 

Possession of less than an ounce of marijuana - Penalty: Fine up to $100.00 no jail or probation required. Generally, a citation is issued to appear in court.

 

Possession of over one ounce of marijuana for personal use - Penalty: Maximum sentence is up to 6 months in County Jail and/or fine up to $ 500.00

 

Possession of concentrated cannabis can be either a felony or misdemeanor. Penalty: Up to three years in prison and a fine of up to $ 500.00.

 

Cultivation of Marijuana.

 

Anyone who plants, cultivates, harvests, dries or processes marijuana, unless legally authorized for medicinal purposes, is guilty of a felony, regardless of the amount - Penalty: Maximum sentence up to three years in state prison.

 

Possession With Intent To Sell Marijuana.

 

It illegal to sell, furnish, give away; or attempt to give away any marijuana unless legally authorized for medicinal purposes. ‘Possession with the intent to sell’ is a non-reducible (Straight) felony. ‘Sale’ is the exchange of marijuana for cash, services, favors or other benefits - Penalty: Maximum sentence is up to three years in state prison.

 

Transportation Of Marijuana

 

It is illegal to transport into the state, sell, furnish, give away; or attempt to give away any marijuana. Transportation of over one ounce is a felony - Penalty: maximum sentence is four years in state prison. Transportation of less than one ounce is a misdemeanor - Penalty: fine up to $100.00.

 

 

 

 

 

 

 

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