California Sale or Transportation of a Controlled Substance
Health and Safety Code 11352 HS

Health & Safety Code 11352 HS, California's sale or transportation of controlled substances law, sets out criminal penalties for doing any of the following with certain illegal drugs:

  • Transporting them for sale;
  • Selling them;
  • Furnishing them;
  • Administering them;
  • Giving them away; or
  • Offering to do any of the above.1

Prior to 2014, you could be convicted of transportation of a controlled substance for transporting controlled substances for personal use. But then the California legislature amended California Health & Safety Code 11352 to provide that “transport” means only “transport for sale.”2

While HS 11352 prohibits the sale and transport of many of the most common drugs, like heroin and cocaine, the sale and transport of certain other drugs is prohibited by other California drug laws—including Health & Safety Code 11379 (sale and transportation of methamphetamines) and Health & Safety Code 11360 (sale and transportation of marijuana).

Examples

Below are some examples of people who might face charges for sale or transport of a controlled substance in California:

  • A college student sells cocaine to his classmates to make pocket money;
  • An unemployed single mother agrees to drive several pounds of heroin from one place to another for a well-known local drug dealer in exchange for several thousand dollars; and
  • A man gives away peyote that he has cultivated himself to friends at a party.

Penalties

Selling or transporting drugs under HS 11352 is a California felony.3

cocaine-powder
Cocaine is one of the drugs covered by Health & Safety Code 11352 HS.

The basic penalties include a jail sentence of anywhere from three (3) to nine (9) years, and/or a fine of up to twenty thousand dollars ($20,000).4

However, aggravating factors and sentence enhancements for things like selling drugs to minors or transporting certain quantities of drugs can greatly increase both your jail sentence and the maximum fine.

Legal defenses

Fortunately, there are many legal defenses to a charge under Health & Safety Code 11352 HS that a skilled California criminal defense attorney could present on your behalf.

As with other California drug crimes, these defenses may include:

  • Illegal search and seizure;
  • Police misconduct; and
  • Entrapment.

In order to help you better understand the California crime of sale or transportation of a controlled substance, our California criminal defense attorneys will address the following:

1. Legal Definition of HS 11352 Sale or Transport of a Controlled Substance

2. Penalties for HS 11352 Sale or Transportation of Drugs

2.1. Aggravating factors/enhanced sentences

2.2. Immigration consequences

2.3. Sale or transport of drugs involving minors

3. Legal Defenses to Charges of Selling or Transporting Narcotics

4. Related Offenses to HS 11352

4.1. HS 11351 possession for sale

4.2. HS 11379 sale or transportation of methamphetamines

4.3. HS 11360 sale or transportation of marijuana

4.4. HS 11357.5 and 11375.5 sale of synthetic (designer) drugs

4.5. HS 10975 and 11355 sale of imitation drugs

4.6. HS 11370.9 money laundering the proceeds of drug sales

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. Legal Definition of HS 11352 Sale or Transport of a Controlled Substance

The legal definition of selling or transporting controlled substances, under California Health & Safety Code 11352 HS, is as follows:

  1. You did one of the following with a controlled substance covered by this law:
    1. Sold it;
    2. Furnished it (by any means, sale or otherwise);
    3. Administered it (that is, caused another person to use the drug by injection or another means);5
    4. Gave it away;
    5. Transported it for sale;
    6. Imported it into California; or
    7. Offered to do any of the above;
  2. You knew of the drug's presence;
  3. You knew of its nature or character as a controlled substance; and
  4. The controlled substance was in a “usable amount,” if you are accused of transporting it for sale.6

Let's take a better look at these elements of the crime of drug sales or transportation, in order to better understand their meaning.

A controlled substance covered by HS 11352

The drugs that it is a crime to sell or transport under Health & Safety Code 11352 include (but are not limited to) the following common controlled substances:

  • Opiates and opiate derivatives;
  • Cocaine (including cocaine base);
  • Heroin;
  • Peyote;
  • Gamma-hydroxybutyric acid (“GHB”), and
  • Certain prescription drugs such as codeine and hydrocodone (“Vicodin”).7

Example: Jeremy is a small-time drug dealer. He has in the past sold both marijuana and “Ecstasy.” Recently he has begun selling expired Vicodin that he collects from senior citizens.

Jeremy can be prosecuted under several different drug laws, including HS 11379 (for selling Ecstasy) and HS 11360 (for selling marijuana). He will face charges under HS 11352 only for his sales of Vicodin.

Peyote-plants-in-basket
Peyote is one of the drugs covered under HS 11352 sale or transportation of controlled substances.

Transporting controlled substances

“Transporting” drugs means to carry or move them from one location to the other, even if the distance is short. You can transport drugs by walking or riding a bicycle as well as by means of transportation like car or plane.8

However, you are only guilty of transportation of a controlled substance if your intent was that the drugs were going to be sold eventually. (If you transport drugs other than for sale, you can still be charged with simple possession under Health & Safety Code 11350 HS.)9

Example: Michael is participating in a drug transaction that will take place inside a motel. He meets a driver in the motel's parking lot, and the driver hands him some heroin from the car window.

Michael then walks across the parking lot to the motel itself, where he intends to sell the heroin to someone staying in one of the rooms. But Michael is apprehended by a police officer participating in a sting operation before he can complete the sale.

Michael is guilty of transporting controlled substances for walking across the parking lot with the heroin that was intended for sale.10

Also, you are only guilty of transporting drugs if you are found to have transported a “usable amount.” Trace amounts—like drug residue found on another object—don't count.11

But the “usable amount” requirement replies only to transporting controlled substances—not to selling them.12

Offering to sell, furnish or transport controlled substances

You can also be charged under HS 11352 for offering to sell, transport or furnish/administer/give away controlled substances. However, you are only guilty of offering to sell or transport drugs if, when you made the offer, you actually intended to follow through on it.13

Example: Denise is a high school student trying to make friends with the “popular” kids at her school. She tells one of them that, if they will invite her to an upcoming party, she will bring cocaine and let everyone have some.

In reality, Denise has no idea how to get cocaine and would never dream of bringing it to the party. If she is invited, her plan is to make up a story about her source for the cocaine not coming through.

Denise has offered to furnish controlled substances. But because she did not intend to actually do so, she is not guilty under HS 11352.

Knowledge

As noted above, you are not guilty of sale or transport of a controlled substance unless you knew both:

  1. That the drug was present; and
  2. Of its nature as a controlled substance.14

Example: Laura runs a multistate drug trafficking operation out of her home in Oregon.

Laura pays Alex several hundred dollars to drive a car into California for her. She does not tell Alex that a suitcase in the car's trunk contains large quantities of cocaine that a contact of hers will sell in California.

Then Laura hires Jad to drive a shipment of dried peyote buttons into California for her. Jad is curious and looks inside the suitcase in the trunk. But he has no idea what peyote looks like. Laura tells them that the buttons are an exotic vegetable that is popular in California restaurants.

Neither Alex nor Jad is guilty of importing controlled substances into California under Health & Safety Code 11352. This is because Alex did not know the drugs were in the car, and Jad did not know that the items he was transporting were drugs.

Constructive possession

It is important to note that you can be guilty of trafficking in controlled substances even if you never personally touched or handled the drugs. All that is needed is that you have control over the drugs, either personally or through another person.15

Rocks-of-crack-cocaine
You can be guilty of transporting a drug like crack cocaine even if you never handle the drug yourself.

This is what is known as “constructive”—as opposed to actual—possession.

Example: Let's return to Laura from our example above.

Let's say Laura pays people to obtain the cocaine and peyote described above, to pack them in suitcases and to put the suitcases in cars for her. She gets paid when they get delivered—by someone else, like Alex or Jad—to a contact in California.

Laura is still guilty of transporting, importing and selling controlled substances under HS 11352 because she controlled the drugs.

How prosecutors and police build a drug trafficking case

Investigations for sale or transportation of a controlled substance routinely involve sting operations—that is, attempts to catch individuals committing crimes, often through deceptive means.

Some HS 11352 arrests come about because the police gained information from a confidential informant.

Many times informants—who may be working for money or in exchange for leniency in their own drug case—give the police false or misleading information.

So if an informant played a role in your case, you and your California drug crimes defense lawyer may want to make a motion in court to reveal the identity of the informant. You can then challenge the prosecutor's assertion that their source is reliable.

Another common way of gathering evidence for a sale or transportation of controlled substances case is through observation or surveillance posts. These are places where officers "set up camp" to observe suspected drug activities—often near a suspect's home or business, or in an area where drug sales typically take place.

Handcuffs-and-cash
Police sometimes make arrests for sales of a controlled substance using undercover "controlled buys."

Undercover "controlled buys" are another common way to make an arrest for drug sales. These can occur in both the old-fashioned way (in person) AND over the Internet.

In either case, an officer poses as a buyer or seller of controlled substances, hoping to lure a target into behavior that can support an arrest for sale or transportation of a controlled substance.

2. Penalties for HS 11352 Sale or Transportation of Drugs

Selling or transporting controlled substances under Health & Safety Code 11352 HS is a felony in California law.16

The basic potential penalties for a first offense are:

  • Felony (formal) probation;
  • Three (3), four (4) or five (5) years served in county jail under California's realignment program—or three (3), six (6) or nine (9) years in jail if you are found to have transported controlled substances for sale across two (2) or more county lines within California; and/or
  • A fine of up to twenty thousand dollars ($20,000).17

And you will NOT be eligible for a sentence to felony probation or a suspended sentence if any of the following is true:

  • You are convicted of violating HS 11352 for selling or offering to sell 14.25 grams or more of a substance containing heroin;
  • You are convicted of HS 11352 for selling or offering to sell any amount of heroin, and you have one or more prior convictions for either HS 11352 or HS 11351 possession of controlled substances for sale; or
  • You are convicted of HS 11352 for selling or offering to sell cocaine, cocaine base or methamphetamine, and you have one or more prior convictions for selling, offering to sell or possessing for sale any drug.18

2.1. Aggravating factors/enhanced sentences

There are a variety of scenarios in which you can face far more severe penalties for selling or transporting controlled substances than the basic penalties described above.

These include:

Drug trafficking near drug treatment facilities or homeless shelters

You may face an additional one (1) year in jail for a Health & Safety Code 11352 HS conviction if both of the following are true:

  1. The controlled substance involved was heroin, cocaine or cocaine base; and
  2. The trafficking took place upon the grounds of or within one thousand (1,000) feet of a drug treatment center, a “detox” facility or a homeless shelter.19

Sales or transportation of large quantities of heroin or cocaine

drug-sales-black-tar-heroin
Selling or transporting large quantities of a drug like heroin can lead to a longer jail sentence.

If you are convicted of violating Health and Safety Code 11352 HS, and the controlled substance is or contains heroin, cocaine or cocaine base, you face an additional jail sentence of:

  • Three (3) years if the substance weighs more than one (1) kilogram;
  • Five (5) years if it weighs more than four (4) kilograms;
  • Ten (1) years if it weighs more than ten (10) kilograms;
  • Fifteen (15) years if the drug weighs more than twenty (20) kilograms;
  • Twenty (20) years if it weighs more than forty (40) kilograms; and
  • Twenty-five (25) years if the substance exceeds eighty (80) kilograms.20

If you receive an additional sentence for sale or transportation of a controlled substances under one of these weight enhancements, you will also face an additional fine ranging from up to one million ($1,000,000) to up to eight million ($8,000,000).21

Prior convictions

If you are convicted of drug sales or transport under HS 11352, and you have at least one prior felony conviction for a drug crime (other than for personal use), then you face an additional and consecutive three (3) years in jail for each such prior conviction.22

Selling or furnishing drugs to certain people

The judge in your case is likely to impose the harshest of the possible jail or prison terms for sale or transport of a controlled substance if you knew or reasonably should have known that you were selling, furnishing, administering or giving away drugs to an individual who:

  1. Was pregnant;
  2. Had previously been convicted of a violent felony; or
  3. Was being treated for a mental health disorder or a drug problem.23

2.2. Immigration consequences

Non-US-citizens need to be particularly concerned about a Health & Safety Code 11352 HS conviction.

That is because sale or transportation of a controlled substance, like many drug crimes, is a “deportable crime” under federal immigration law.24

department-of-homeland-security-seal
The sale or transportation of a controlled substance is a deportable offense.

This means that you may be deported at any time if you plead guilty to or are convicted of HS 11352—even if your immigration status was otherwise perfectly legal.

2.3. Sale or transport of drugs involving minors

Sale or transportation of controlled substances involving minors is a distinct offense in California, covered under Health & Safety Code 11353 HS.

You are guilty of this crime if you are an adult (that is, a person 18 or older), and you either:

  1. Hire, employ or use a minor (that is, a person under 18) to sell, transport, give away, prepare for sale or peddle the controlled substance; or
  2. Sell, furnish, administer or give away, or offer to sell, furnish, administer or give away, any controlled substance to a minor.25

This behavior will lead to a state prison sentence of three (3), six (6) or nine (9) years.26

In addition, you face an additional one (1) or two (2) years in prison if:

  1. The drugs involved were heroin, cocaine or cocaine base, and
  2. The illegal activity took place at or within one thousand (1,000) feet of a school, place of worship, or essentially any other facility where minors are regularly present.

And if you are at least four (4) years older than the minor involved, you face a separate and additional one (1), two (2) or three (3) year state prison sentence.27

3. Legal Defenses to Charges of Selling or Transporting Narcotics

Fortunately, there are many legal defenses to a charge under Health and Safety Code 11352 HS that a skilled California criminal defense attorney could present on your behalf.

These include:

Illegal search and seizure

Many California arrests for sale or transportation of a controlled substance stem from an illegal search and seizure—such as:

  • Searching you or your property without a valid California search warrant,
  • Exceeding the scope of a search warrant (for example, searching your car when the warrant only authorized a search of your office); or
  • Unlawfully detaining and searching you without probable cause.

According to Hemet drug crimes defense attorney Michael Scafiddi28:

“If you were the victim of an unlawful search and seizure and were charged with sale or transportation of a controlled substance as a result, your California drug crimes defense lawyer will most likely file a motion to suppress evidence. If this motion is successful, the prosecutor may have no choice but to dismiss the charges.”

Police-hat
Proof of police misconduct can help defeat an HS 11352 charge.

Police misconduct

Police misconduct in a sale or transportation of controlled substances case could include:

  • "Planting" evidence (that is, placing drugs on a person, or in his/her apartment or car, in order to make an arrest);
  • Lying about where they found the controlled substance (for example, saying they found it in your purse when in reality they found it on the ground near where you were standing);
  • Falsifying the probable cause that led to the arrest; or
  • Using excessive force to obtain a confession or other evidence.

Entrapment

Entrapment serves as a legal defense when you can show that you only violated Health and Safety Code 11352 HS because you were coerced or lured into doing so by the police.

This situation arises when an officer entices, coerces or harasses an otherwise innocent individual into committing a crime. The officer's conduct must be more than a suggestion or offer. It must rise to a level that would be difficult for a reasonable person to refuse.29

Lack of knowledge

You should be acquitted of sale or transportation of controlled substances if either of the following is true:

  1. You didn't know about the drug's presence; or
  2. You didn't know that the item you sold or transported was a controlled substance.30

Lack of intent

If you are accused of offering to sell, transport, furnish, etc., a controlled substance, then your lack of intent could serve as a defense to Health and Safety Code 11352 HS.

This is because you are not guilty of this offense without the specific intent to execute your offer.31

4. Related Offenses to HS 11352

4.1. HS 11351 possession for sale

Health & Safety Code 11351, California's “possession of a controlled substance with intent to sell” law, involves the same illegal drugs as HS 11352 sale or transportation.

But this is a slightly less serious offense because it doesn't involve actual sale or transport—just possession of the drugs with intent to sell them.

Possession for sale under HS 11351 is a felony with a potential jail sentence of two (2), three (3) or four (4) years.32

4.2. HS 11379 sale or transportation of methamphetamines

Health & Safety Code 11379 HS is California's law against sales and transportation of methamphetamines.

This law is very similar to HS 11352 but it covers different drugs, including “PCP,” MDMA (known as ecstasy), and ketamine (“special K”).

The penalties for sale and transport of methamphetamines, a felony, are slightly less severe than those for the drugs covered by Health & Safety Code 11352. The basic jail sentence for violating this law is two (2), three (3) or four (4) years.33

4.3. HS 11360 sale or transportation of marijuana

Health & Safety Code 11360 HS prohibits the sale, transportation for sale, furnishing and giving away of marijuana.

Like HS 11352 sale or transport of controlled substances, sale or transportation of marijuana is a felony. The potential jail sentence is two (2), three (3) or four (4) years.

marijuana-with-joint
Sale or transport of marijuana carries lighter penalties than HS 11352 sale or transportation of controlled substances

However, if you transport for sale or give away 28.5 grams or less of marijuana (other than concentrated cannabis), the offense is only a California misdemeanor and carries only a fine of one hundred dollars ($100).34

4.4. HS 11357.5 and 11375.5 sale of synthetic (designer) drugs

In California, the sale of synthetic (“designer”) drugs is a crime.

Included in the definition of synthetic drugs are:

  • Synthetic marijuana (sometimes marketed as “potpourri,” “herbal incense” or “Spice”);35 and
  • Synthetic stimulants (including “bath salts”).36

Under California law, sale of synthetic cannabis or stimulants is a misdemeanor—and so a less severe crime than HS 11352 drug trafficking. It can subject you to:

  • Up to six (6) months in county jail; and/or
  • A fine of up to $1,000.37

4.5. HS 10975 and 11355 sale of imitation drugs

California Health and Safety Code 109575 and 11355, sale of an imitation controlled substance, cover the sale of “bunk” drugs. A “bunk” drug is one that is made intentionally to resemble a genuine controlled substance.

The sale of an imitation controlled substance is a misdemeanor under Health and Safety Code 109575. The penalty is:

  • Up to six months in county jail; and/or
  • A fine of up to $1,000.38

A more serious crime involving the sale of an imitation controlled substance is set forth in California Health and Safety Code 11355 HS. Under that section, it is a “wobbler” offense to: ·

  • Offer to sell, give away or transport a controlled substance; but then
  • Deliver, or arrange to deliver, a bunk drug instead.39

If charged as a misdemeanor, a violation of Health and Safety Code 11355 HS can subject you to one (1) year in county jail. If it is charged as a felony, you face sixteen (16) months or two (2) or three (3) years in county jail.40

4.6. HS 11370.9 money laundering the proceeds of drug sales

Health & Safety Code 11370.9 money laundering involving drug proceeds is a special form of the California crime of money laundering.

HS 11370.9 makes it a crime to engage in a financial transaction involving money that you know was derived from a drug crime like sale or transportation of a controlled substance, with the goal of hiding the source of those funds. This law only covers transactions totaling more than twenty-five thousand dollars ($25,000) in a 30-day period.41

Laundering of drug proceeds is a wobbler. The felony penalties include two (2) to four (4) years in state prison and/or a fine of up to two hundred fifty thousand dollars ($250,000) or twice the amount laundered (whichever is greater).42

Call us for help…

Rx-call-help4-optimized

For questions about the crime of sale or transportation of controlled substances under Health & Safety Code 11352 HS, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on Nevada “drug sale” laws, please see our page on Nevada “drug sale” laws.

You may also find helpful information in our related articles on California Drug Laws; Health & Safety Code 11379 (Sale and Transportation of Methamphetamines); Health & Safety Code 11360 (Sale and Transportation of Marijuana); Cultivation of Peyote Health & Safety Code 11363 HS; Legal Definition of a California Felony; Common Legal Defenses to California Crimes; California Drug Laws Involving the Prescription Drug Hydrocodone (“Vicodin”); Simple Possession Under Health & Safety Code 11350 HS; California Drug Laws Involving Heroin; Police Use of Confidential Informants in California; Motions in Court to Reveal the Identity of Informants; Felony (Formal) Probation in California; AB 109 California's Realignment Program; California Deportable Crimes; California Search & Seizure Laws; California Motions to Suppress Evidence; Police Misconduct and Civil Rights Violations; Entrapment as a Legal Defense in California; Health & Safety Code 11351 HS California's Possession of a Controlled Substance with Intent to Sell Law; The Sale of Synthetic (Designer) Drugs in California; Legal Definition of a California Misdemeanor; California Health and Safety Code 109575 and 11355 Sale of an Imitation Controlled Substance; Legal Definition of a Wobbler Offense; Health & Safety Code 11370.9 Money Laundering Involving Drug Proceeds; and The California Crime of Money Laundering.

Additional Resources:

California Attorney General Report: Drug Arrests in California, 1990-99

Substance Abuse National Hotline

Legal References:


1 Health & Safety Code 11352 HS – Transportation, sale, giving away, etc., of designated controlled substances; punishment; definition; prosecution for aiding and abetting. (“(a) Except as otherwise provided in this division, 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 (1) any controlled substance specified in subdivision (b), (c), or (e), 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 pursuant to subdivision (h) of Section 1170 of the Penal Code for three, four, or five years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, six, or nine years. (c) For purposes of this section, “transports” means to transport for sale. (d) This section does not preclude or limit the prosecution of an individual for aiding and abetting the commission of, or conspiring to commit, or acting as an accessory to, any act prohibited by this section.”)

2 Stats. 2013, c. 504 (AB 721). See also Stats. 2015, c. 77 (AB 730).

3 Health & Safety Code 11352 HS – Transportation, sale, giving away, etc., of designated controlled substances; punishment; definition; prosecution for aiding and abetting, endnote 1 above.

4 Same.

See also Health & Safety Code 11372 HS – Fines [for sale or transportation of a controlled substance]. (“(a) In addition to the term of imprisonment provided by law for persons convicted of violating Section 11350, 11351, 11351.5, 11352,11353, 11355, 11359, 11360, or 11361, the trial court may impose a fine not exceeding twenty thousand dollars ($20,000) for each offense. In no event shall a fine be levied in lieu of or in substitution for the term of imprisonment provided by law for any of these offenses. (b) Any person receiving an additional term pursuant to paragraph (1) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not exceeding one million dollars ($1,000,000) for each offense. (c) Any person receiving an additional term pursuant to paragraph (2) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not to exceed four million dollars ($4,000,000) for each offense. (d) Any person receiving an additional term pursuant to paragraph (3) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not to exceed eight million dollars ($8,000,000) for each offense.”)

See also Penal Code 1170(h) PC – Determinate sentencing. (“(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)

5 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2300 – Sale, Transportation for Sale, etc., of Controlled Substance (Health & Saf. Code, §§ 11352, 11379). (“[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.]”)

6 CALCRIM 2300 – Sale, Transportation for Sale, etc., of Controlled Substance (Health & Saf. Code, §§ 11352, 11379). (“The defendant is charged [in Count ] with (selling/furnishing/administering/giving away/transporting for sale/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 for sale/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] <If the controlled substance is not listed in the schedules set forth in sections 11054 through 11058 of the Health and Safety Code, give paragraph 4B and the definition of analog substance below instead of paragraph 4A.> 4A. The controlled substance was <insert type of controlled substance>(;/.) 4B. The controlled substance was an analog of <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.]”)

7 Health & Safety Code 11352 HS – Transportation, sale, giving away, etc., of designated controlled substances; punishment; definition; prosecution for aiding and abetting, endnote 1 above.

See also California Health & Safety Code 11054, 11055 and 11056 HS.

8 CALCRIM 2300 – Sale, Transportation for Sale, etc., of Controlled Substance (Health & Saf. Code, §§ 11352, 11379). (“[A person transports something if he or she carries or moves it from one location to another, even if the distance is short.]” . . . Related Issues: Transportation . . . Transportation of a controlled substance includes transporting by riding a bicycle (People v. LaCross (2001) 91 Cal.App.4th 182, 187 [109 Cal.Rptr.2d 802]) or walking (People v. Ormiston (2003) 105 Cal.App.4th 676, 685 [129 Cal.Rptr.2d 567]). The controlled substance must be moved “from one location to another,” but the movement may be minimal. (Id. at p. 684.))”)

9 Health & Safety Code 11352 HS – Transportation, sale, giving away, etc., of designated controlled substances; punishment; definition; prosecution for aiding and abetting, endnote 1 above.

10 Based on the facts of People v. Ormiston (2003) 105 Cal.App.4th 676.

11 People v. Leal (1966) 64 Cal.2d 504, 505. (“We conclude that the statutory differentiation of the various crimes as well as the history of the cases culminating in Sullivan show that in penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such. It did not refer to useless traces or residue of such substance. Hence the possession of a minute crystalline residue of narcotic useless for either sale or consumption, as Sullivan points out, does not constitute sufficient evidence in itself to sustain a conviction. Since in the present case the prosecution proved no more than defendant's possession of traces of narcotics and did not show that such residue was usable for sale or consumption, we remit it to the trial court for the purpose of ascertaining whether or not such factual elements were present.”)

12 CALCRIM 2300 – Sale, Transportation for Sale, etc., of Controlled Substance (Health & Saf. Code, §§ 11352, 11379), Bench Notes: Instructional Duty. (“When the prosecution alleges transportation, give bracketed element 5 and the definition of usable amount. When the prosecution alleges sales, do not use these portions. There is no case law on whether furnishing, administering, giving away, or importing require usable quantities.”)

13 CALCRIM 2301 – Offering to Sell, Transport for Sale, etc., a Controlled Substance (Health & Saf. Code, §§ 11352, 11379). (“The defendant is charged [in Count ] with offering to (sell/furnish/administer/give away/transport for sale/import) <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] offered to (sell/furnish/administer/give away/transport for sale/import into California) a controlled substance; AND 2. When the defendant made the offer, (he/she) intended to (sell/furnish/administer/give away/transport for sale/import) the controlled substance.”)

14 CALCRIM 2300 – Sale, Transportation for Sale, etc., of Controlled Substance (Health & Saf. Code, §§ 11352, 11379), endnote 6 above.

15 CALCRIM 2300 – Sale, Transportation for Sale, etc., of Controlled Substance (Health & Saf. Code, §§ 11352, 11379). (“[A person does not have to actually hold or touch something to (sell/furnish/administer/transport it for sale/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.]”)

16 See endnote 4, above.

17 Same.

18 Penal Code 1203.07 PC – Controlled substances violations; use of minors as agents; prohibition of probation or suspension of sentence. (“(a) Notwithstanding Section 1203, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following persons: . . . (2) Any person who is convicted of violating Section 11352 of the Health and Safety Code by selling or offering to sell 14.25 grams or more of a substance containing heroin. (3) Any person convicted of violating Section 11351 of the Health and Safety Code by possessing heroin for sale or convicted of violating Section 11352 of the Health and Safety Code by selling or offering to sell heroin, and who has one or more prior convictions for violating Section 11351 or Section 11352 of the Health and Safety Code. . . . (11) Any person convicted of violating Section 11351, 11351.5, or 11378 of the Health and Safety Code by possessing for sale cocaine base, cocaine, or methamphetamine, or convicted of violating Section 11352 or 11379 of the Health and Safety Code, by selling or offering to sell cocaine base, cocaine, or methamphetamine and who has one or more convictions for violating Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, or 11379.5 of the Health and Safety Code. For purposes of prior convictions under Sections 11352, 11379, and 11379.5 of the Health and Safety Code, this subdivision shall not apply to the transportation, offering to transport, or attempting to transport a controlled substance.”)

19 Health & Safety Code 11380.7 HS – Additional penalty for trafficking violation on the grounds of, or within 1,000 feet of, drug treatment center, detoxification facility, or homeless shelter; mitigating factors; definitions. (“(a) Notwithstanding any other provision of law, any person who is convicted of trafficking in heroin, cocaine, cocaine base, methamphetamine, or phencyclidine (PCP), or of a conspiracy to commit trafficking in heroin, cocaine, cocaine base, methamphetamine, or phencyclidine (PCP), in addition to the punishment imposed for the conviction, shall be imprisoned pursuant to subdivision (h) of Section 1170 of the Penal Code for an additional one year if the violation occurred upon the grounds of, or within 1,000 feet of, a drug treatment center, detoxification facility, or homeless shelter.”)

20 Health & Safety Code 11370.4 HS – Convictions under specified sections [including California's sale or transportation of a controlled substance law] with respect to substances containing heroin, cocaine base, cocaine, methamphetamine, amphetamine or phencyclidine; additional terms. (“(a) Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 with respect to a substance containing heroin, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, or cocaine as specified in paragraph (6) of subdivision (b) of Section 11055 shall receive an additional term as follows: (1) Where the substance exceeds one kilogram by weight, the person shall receive an additional term of three years. (2) Where the substance exceeds four kilograms by weight, the person shall receive an additional term of five years. (3) Where the substance exceeds 10 kilograms by weight, the person shall receive an additional term of 10 years. (4) Where the substance exceeds 20 kilograms by weight, the person shall receive an additional term of 15 years. (5) Where the substance exceeds 40 kilograms by weight, the person shall receive an additional term of 20 years. (6) Where the substance exceeds 80 kilograms by weight, the person shall receive an additional term of 25 years.”)

21 Health & Safety Code 11372 – Fines [for sale or transportation of a controlled substance], endnote 4 above.

22 Health & Safety Code 11370.2 HS – Sentence enhancements for persons with certain prior convictions. (“(a) Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 [selling or transporting drugs] shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352,11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.”)

23 Health & Safety Code 1170.82 – Controlled substances; sale or transfer; aggravation of crime. (“Upon a conviction of a violation of Section 11352, 11360, 11379, or 11379.5 of the Health and Safety Code, the fact that the person who committed the offense knew, or reasonably should have known, that any of the following circumstances existed with regard to the person to whom he or she unlawfully sold, furnished, administered, or gave away a controlled substance, shall be a circumstance in aggravation of the crime in imposing a term pursuant to subdivision (b) of Section 1170: (a) The person was pregnant at the time of the selling, furnishing, administering, or giving away of the controlled substance. (b) The person had been previously convicted of a violent felony, as defined in subdivision (c) of Section 667.5. (c) The person was in psychological treatment for a mental disorder or for substance abuse at the time of the selling, furnishing, administering, or giving away of the controlled substance.”)

24 Immigration and Nationality Act (“INA”) 237, 8 U.S.C. 1227 – Deportable aliens. (“(a) Classes of deportable aliens Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . . (2) Criminal offenses . . . (B) Controlled substances (i) Conviction Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance [such as HS 11352] (as defined in section 802 of title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.”)

25 Health & Safety Code 11353 HS – Adult inducing minor to violate provisions; use or employment of minors; punishment. (“Every person 18 years of age or over, . . . (b) who hires, employs, or uses a minor to unlawfully transport, carry, sell, give away, prepare for sale, or peddle any such controlled substance, or (c) who unlawfully sells, furnishes, administers, gives, or offers to sell, furnish, administer, or give, any such controlled substance to a minor, shall be punished by imprisonment in the state prison for a period of three, six, or nine years.”)

26 Health & Safety Code 11353.1 HS – Enhancement of sentence imposed under § 11353. (“(a) Notwithstanding any other provision of law, any person 18 years of age or over who is convicted of a violation of Section 11353, in addition to the punishment imposed for that conviction, shall receive an additional punishment as follows: (1) If the offense involved heroin, cocaine, cocaine base, or any analog of these substances and occurred upon the grounds of, or within, a church or synagogue, a playground, a public or private youth center, a child day care facility, or a public swimming pool, during hours in which the facility is open for business, classes, or school-related programs, or at any time when minors are using the facility, the defendant shall, as a full and separately served enhancement to any other enhancement provided in paragraph (3), be punished by imprisonment in the state prison for one year. (2) If the offense involved heroin, cocaine, cocaine base, or any analog of these substances and occurred upon, or within 1,000 feet of, the grounds of any public or private elementary, vocational, junior high, or high school, during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs, the defendant shall, as a full and separately served enhancement to any other enhancement provided in paragraph (3), be punished by imprisonment in the state prison for two years. (3) If the offense involved a minor who is at least four years younger than the defendant, the defendant shall, as a full and separately served enhancement to any other enhancement provided in this subdivision, be punished by imprisonment in the state prison for one, two, or three years, at the discretion of the court.”)

27 Same.

28 Hemet drug crimes defense attorney Michael Scafiddi, a former police officer and sergeant, represents clients in drug crimes cases, including drug trafficking/sales cases, throughout the Inland Empire. He is well-known at the criminal courts in Palm SpringsHemet, Riverside, Barstow and Victorville.

29 People v. Barraza (1979) 23 Cal.3d 675, 689. ("For all the foregoing reasons we hold that the proper test of entrapment in California [potential defense to HS 11352 charges] is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?")

See also People v. West (1956) 139 Cal.App.2d Supp. 923, 924. ("Entrapment is the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.")

30 CALCRIM 2300 – Sale, Transportation for Sale, etc., of Controlled Substance (Health & Saf. Code, §§ 11352, 11379), endnote 6 above.

31 CALCRIM 2301 – Offering to Sell, Transport for Sale, etc., a Controlled Substance (Health & Saf. Code, §§ 11352, 11379), endnote 13 above.

32 Health & Safety Code 11351 HS – Possession of controlled substances with intent to sell [related offense to sale or transportation of a controlled substance].

33 Health & Safety Code 11379 HS – Sale and transportation of methamphetamines [related offense to HS 11352 sale or transportation of a controlled substance].

34 Health & Safety Code 11360 HS – Sale and transportation of marijuana [related offense to HS 11352 sale or transportation of a controlled substance].

35 Health & Safety Code 11357.5 HS – Synthetic cannabinoid compound or derivative; prohibited sale, dispensing, distribution, etc., or possession for sale; punishment [variation on sale or transportation of a controlled substance].

36 Health & Safety Code 11375.5 HS – Synthetic stimulant compound or derivative; prohibited sale, dispensing, distribution, etc., or possession for sale; punishment [variation on sale or transportation of a controlled substance].

37 Same.

38 Health & Safety Code 109575 HS – Manufacture, distribution, or possession with intent to distribute imitation controlled substance [related offense to sale and transport of a controlled substance].

39 Health & Safety Code 11355 HS – Sale or furnishing substance falsely represented to be a controlled substance; punishment [related offense to sale and transport of a controlled substance].

40 Same.

41 Health & Safety Code 113570.9 HS – Money laundering drug proceeds [including proceeds from sale/transport of illegal drugs].

42 Same.

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