California Health and Safety Code 11352 HS --Transporting or Selling a Controlled Substance

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Sales or Transportation of a Controlled Substance -- California Health & Safety Code 11352 HS

California Health and Safety Code 11352 HS criminalizes a variety of acts involving the distribution of "controlled substances". Some of the most common illicit and prescription controlled substances include cocaine, heroin, PCP, GHB (aka the "date rape" drug), hydrocodone (aka Vicodin), morphine, and codeine.

• Transporting,



• Importing into California,



• Selling,



• Furnishing,



• Administering, or



• Giving away a banned controlled substance, and/or



• Offering to do any of the above acts will subject you to prosecution under this law.

This California drug crime is a felony and carries a California State Prison sentence of two to nine years and substantial fines, depending on (1) the specific offense, and (2) what drugs were involved.

In this article, our Rancho Cucamonga drug crimes lawyers will provide a comprehensive guide to understanding this offense by addressing the following topics:

How Does the Prosecutor Prove that I am Guilty of Transporting, Selling, or Furnishing Drugs?

Definition of Terms and Concepts under California Health and Safety Code 11352 HS

Examples of Intelligence and Surveillance that Officers use to make Arrests

What are the Defenses to a Charge Under California Health and Safety Code 11352 HS?

What are the Penalties and Punishments that I Face if Convicted of Transporting, Selling, or Furnishing Drugs?

If after reading this article, you have additional questions or would like more information, please don't hesitate to contact us.

How Does the Prosecutor Prove that I am Guilty of Transporting, Selling, or Furnishing Drugs?

There are two different ways that you can be convicted under California Health and Safety Code 11352 HS -- (1) by actually engaging in the act, or (2) by offering to perform the act.

With respect to the first offense, the prosecutor must prove:

1. That you engaged in at least one of the acts specified above, and



2. That you knew of the drug's presence and nature as a controlled substance. If you are being charged specifically with "transporting" a controlled substance, the prosecutor must additionally prove



3. That there was enough of the drug to be "used".
   There is no requirement that you actually hold or touch the drugs in order to be convicted of this crime. If you (1) exercise control over, or (2) have the right to control the substance, that will be sufficient. You can have personal control over the drugs, or your control can be exercised through another person (such as when a dealer uses a front person to sell drugs for him).

With respect to the second offense, the prosecutor must prove:

1. That you offered to do one of the above acts, and



2. That you had the specific intent to execute your offer.
   Because this offense only concerns an "offer" to do the act, you do not actually need to possess or deliver the drug to be prosecuted under this section.¹

Let me expand on a few terms and concepts that are inherent within these requirements.

Definition of Terms and Concepts under California Health and Safety Code 11352 HS

You can be convicted of transporting a controlled substance even if you don't have personal possession over the drug. If you don't personally possess the drug, all that is required is that (1) you knew about the drug's presence and character, and (2) that you had control over the vehicle used to transport the drug.

Other than the fact that "transporting" requires that you have a useable amount of the alleged drug (described below), there are no additional requirements. To be convicted of transporting, you need not intend to sell or distribute the drugs.simply moving them is enough.

*"Useable amounts" only apply to charges involving transportation.⁶ There is no similar requirement for a "selling" charge,⁷ and no case law as to whether importing, furnishing, administering, or giving away drugs requires a "useable amount".

Examples of Intelligence and Surveillance that Officers use to make Arrests

In order to bust people for narcotics sales under Health & Safety Code 11352 HS, officers routinely conduct sting operations. Some of the most common ways that they do this include (1) using informers, (2) setting up observation posts, (3) engaging in "undercover" transactions, and (4) monitoring the internet to catch those involved in narcotics communications.

If you suspect that an informer framed you or otherwise reported you to escape his/her own criminal culpability, your California drug crimes defense attorney might be able to convince a judge to reveal the informant's identity for questioning.

Their goal is to witness you actually selling, buying, transporting, or otherwise engaging in forbidden activity so that they can immediately arrest you.

A "controlled buy" might be set up in the hopes of arresting you personally. This could be the case, for example, if an officer received a "tip" that you were engaged in illegal drug sales.

You might also be arrested as the result of "dumb luck". The undercover officer may have been working in a high-traffic drug area posing as a user trying to "score", and you happened to be the one who he/she approached.

Examples: A person may set up an online "pharmacy" to sell prescription drugs without a license. One may start a website to sell drugs for "research purposes". One may advertise on Craigslist or eBay offering "research chemicals". One may be engaged in a more blunt, drug-related conversation in a chat-room. No matter what, user beware -- the cops are watching!

Officers troll the net, looking for keywords and phrases that are common to drug transactions. There are typically two scenarios:

1. Officers pose as buyers and sellers. Their goal is to contact you online to arrange an in-person undercover deal that will ultimately lead to your arrest. Or,



2. Officers purchase drugs from what they believe is your rogue pharmacy. They will place a drug order. If they then receive the drugs (despite the fact that they didn't produce a valid prescription or take any kind of in-person medical exam), they call upon Yahoo!, AOL, Google, or another relevant search engine to track you down and arrest you.

The government is taking an aggressive approach when it comes to these types of activities. The FDA, DEA, and local law enforcement offices are training officers to recognize and communicate with on-line drug traffickers so that they can initiate these types of proactive internet drug investigations.

As officers become more technically sophisticated, internet drug sting operations will undoubtedly become more prevalent.

What are the Defenses to a Charge Under California Health and Safety Code 11352 HS?

The defenses that are applicable to this charge are the same as most other drug charges. Depending on the facts of your individual case, they may include, but are not limited to (1) illegal search and/or seizure, (2) "lack of knowledge", or (3) lack of intent.

Example: Bill is a known recovering heroin addict, holding down a steady job. He sold heroin to Officer Smith (who was undercover) only because (1) Officer Smith repeatedly called Bill at work, (2) Bill was afraid he might lose his job if Smith didn't stop calling, and (3) Officer Smith completely broke and wore down Bill after meeting for over an hour.⁸ But.

If, for example, you were the advertiser caught in an undercover internet drug bust, raising this defense would not be appropriate. Similarly, if an undercover cop asked you to sell him some drugs.and you did.you would not be entitled to this defense. The fact that you already had the drugs and simply responded to an offer to buy would evidence the fact that you harbored your own criminal intent.

The second would typically be argued on behalf of someone with no drug history. If you have any history of drug use, abuse, or association in any way, your claim of ignorance (and underlying credibility) would be less persuasive.

• out of fear,



• in jest,



• with the intent of notifying law enforcement about the drug's illegal presence, or



• based on any other motive

and you never actually intended to follow through with your offer, you are not guilty of this charge.

What are the Penalties and Punishments that I Face if Convicted of Transporting, Selling, or Furnishing Drugs?

As previously mentioned, California Health and Safety Code 11352 HS is a felony. If convicted, you face a California state prison sentence of two to nine years, depending on (1) the specific offense, and (2) what drugs were involved.

In addition to the above sentence, you may be convicted of a misdemeanor for knowingly and unlawfully furnishing or dispensing prescription-only drugs without a license to do so under California Health and Safety Code 11352.1 HS.

Operating, managing, or owning a business that engages in these activities will also subject to you additional charges, provided that you don't have a license to do so.

Although the offense is only a misdemeanor, each violation carries a maximum one-year county jail sentence and up to $10,000 in fines.

Additionally, you will be punished under California Health and Safety Code 11366.7 HS, if you are a wholesaler or retailer who:

1. sells a drug, chemical, or other laboratory device,



2. knowing or intending that it will be processed into (or used to) prepare a controlled substance,



3. that will be illegally sold or otherwise distributed,

you face either a misdemeanor or a felony. If convicted, you face up to $25,000 in fines and a county jail or state prison sentence.

*California Health and Safety Code 11352 HS is not an offense that qualifies for drug diversion instead of prison. However, if your California drug crimes defense lawyer can negotiate a reduced charge of either

• transportation for personal use, or



• possession for personal use,

the judge has the ability to sentence you to drug rehabilitation rather than prison.

If you would like more information or would like to confidentially discuss your case, please don't hesitate to contact us. We have local criminal law offices located in Newport Beach, Orange County, Van Nuys, and in all nearby cities.

Legal References:

¹People v. Jackson (1963) 59 Cal.2d 468 (A defendant may be convicted of offering to sell even if he/she never possessed or delivered any drugs).

²People v. Ormiston (2003) 105 Cal.App.4th 676 (Transporting drugs includes moving them by walking).

³People v. LaCross (2001) 91 Cal.App.4th 182 (Transporting a controlled substance includes transporting them while riding a bicycle).

⁴People v. Guy (1980) 107 Cal.App.3d 593 (Knowledge for the purpose of conviction is knowledge of the controlled nature of the substance and not its precise chemical composition).

⁵People v. Leal (1966), 64 Cal.2d 504 (Useless traces or debris from a drug are not useable amounts).

⁶People v. Emmal (1998) 68 Cal.App.4th 1313 (Transportation of a controlled substance requires a useable amount).

⁷People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522 (A sales offense doesn't require possession of a useable quantity).

⁸People v. Barraza (1979) 23 Cal.3d 675 (The test for entrapment is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding person to commit the offense, regardless of the character of the suspect, his predisposition to commit the offense, or his subjective intent).

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