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

The "war on drugs" sends thousands of Californians to prison every year. Unfortunately, many of them are innocent. And many others are addicts who just need treatment rather than to get caged.

That's where we come in.

We're a statewide criminal defense law firm of former police investigators and former deputy district attorneys. Drawing on our law enforcement background, we know the best ways to fight bogus drug charges and keep our clients out of jail.

In this article, our California drug crimes defense attorneys1 explain how cases alleging violations of Health and Safety Code 11352 HS California's law against selling or transporting controlled substances are investigated, prosecuted and...most importantly...defended, by addressing the following:

1. The Legal Definition of "Selling or Transporting" Controlled Substances

1.1. Prohibited acts

1.2. Transportation

1.3. The prosecution's case

1.3.a. You sold, transported, furnished or administered

1.3.b. You knew of the drug's presence and nature as a controlled substance

1.3.c. There was a useable amount
of the narcotic

2. The Investigation

2.1. Informants

2.2. Observation / surveillance posts

2.3. Undercover transactions

2.4. Internet sting operations

3. Legal Defenses

3.1. Illegal search and/or seizure

3.2. Police misconduct

3.3. Entrapment

3.4. Mistaken identity / innocence

3.5. Lack of knowledge

3.6. Lack of intent

4. Penalties, Punishments and Sentencing

4.1. Aggravating factors

4.2. Drug diversion

5. Related Offenses

5.1. Health and Safety Code sections 11353 & 11353.1 HS -- offenses involving minors

5.2. Health and Safety Code 11351 HS -- possession or purchase of a controlled substance for sale

5.3. Health and Safety Code sections 11377, 11378 and 11379 HS -- possession, sales and transportation of methamphetamines

5.4. Driving under the influence of drugs

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

You may also find helpful information in our related articles on California Drug Crimes; Health and Safety Code 11350 HS Personal Possession of a Controlled Substance; Health and Safety Code 11351 HS California's Possession or Purchase of a Controlled Substance for Sale Law; Health and Safety Code Sections 11377, 11378 and 11379 HS California's Law Against Possessing, Selling or Transporting Methamphetamines; Health and Safety Code 11550 HS California's Being Under the Influence of a Controlled Substance Law; Driving Under the Influence of Drugs; Cocaine; Heroin; Gamma-Hydroxybutyric Acid ("GHB"); Ketamine; Phencyclidine ("PCP"); Ecstasy; Codeine; Hydrocodone "Vicodin"; California Legal Defenses; California's Search and Seizure Laws; California Search Warrants; Entrapment as a Legal Defense; California's Laws Regarding Informants / Informers; Police Misconduct; Pitchess Motions; Section 1983 Civil Rights Lawsuits; Penal Code 1538.5 PC Motion to Suppress Evidence; Wobblers; Misdemeanors; Felonies; Proposition 36; Penal Code 1000 PC Drug Diversion; and California Drug Courts.

1. The Legal Definition of "Selling or Transporting" Controlled Substances

California Health and Safety Code 11352 HS criminalizes a variety of acts involving controlled substances and illegal narcotic drugs.  A "controlled substance" is a drug or chemical whose manufacture, possession and use are regulated by the government under the United States "Controlled Substances Act".

Examples of common controlled substances and narcotics that are regulated under this law include (but are not limited to):

1.1. Prohibited Acts

California Health and Safety Code 11352 HS prohibits a variety of conduct relating to the sales / transportation of controlled substances.  This conduct includes

  • transporting (that is, moving the controlled substance(s) from one place to another, regardless of how insignificant the distance of the move),
  • importing into California (that is, bringing illegal drugs into this state),
  • selling (exchanging the narcotics for money, favors, services, goods, or any other non-cash benefits),
  • furnishing (supplying by any means -- sale or otherwise),
  • administering (the drugs directly to another person by injection or any other means that causes that person to ingest, inhale, or otherwise consume the drug), or
  • giving away

any of the designated controlled substances listed in this code.3 What's more is that prosecutors can charge you with this offense even if you only offer to engage in any of these acts...as long as you specifically intended to follow through with your offer.4

While most of the terms above are fairly self-explanatory, the term "transporting" requires some further elaboration.

1.2. Transportation of a controlled substance

You "transport" drugs when you move them from one place to another, even if the distance is a short one.  Transportation can be via foot, bicycle, or any other means of transportation.5

In order to be convicted of transporting narcotics, you don't need to intend to sell or distribute them...moving them is all that is required.  As the California Court of Appeal explains,

"The Legislature has determined transportation of controlled substances...should be prohibited because it poses greater risks to the public than simple possession does. As our Supreme Court has observed, the increased penalty provided for transportation is intended to discourage sales and purchases; to reduce the incidents of traffic accidents caused by those who might use and be impaired by a controlled substance during its transportation; and to inhibit the use of controlled substances in general by making it difficult to distribute and obtain them...The proscription and the penalty that goes with it do not require an actual sale, an impaired driver, or even use of the drug before they come into play. It is enough that those evils, along with their attendant risks, have been reasonably associated with the prohibited deed."6

1.3. The prosecution's case

In order to convict you of selling or transporting a controlled substance, the prosecutor must establish that

  1. you engaged in (or offered to perform) at least one of the acts specified above,
  2. you knew of the drug's presence and nature as a controlled substance, and
  3. there was enough of the drug to be used as a controlled substance.7

Let's take a closer look at these requirements in order to better understand their application.

1.3.a. You sold, transported, furnished or administered

Although this may sound strange, it's not actually necessary that you physically possess the illegal drugs in order to be convicted of selling, transporting, furnishing, etc. a controlled substance.  This is because this offense can be based on what is known as constructive possession.

With respect to narcotic sales, "constructive possession" means that even if you don't physically possess the alleged controlled substance, you can still be prosecuted for the offense if you either personally or through another person (1) exercise control over the drugs, or (2) have the right to control the drugs.8

Example: Adam gives Bob the money to buy a pound of cocaine. He instructs Bob to sell the drug on the street to various buyers. The two men plan to split the profits. Even though Adam never physically "possesses" the cocaine, he would be considered a partner in the drug dealing arrangement. Thus both he and Bob would be liable for sale of a controlled substance under Health & Safety Code 11352 HS.

As you can see, possession isn't even an essential element of a sales/transportation charge.  To take another example, suppose you were simply driving someone around and that person had some crack in his pocket. But he kept exclusive control of it the whole time. You could still be convicted of "transporting" narcotics as long as you know of the drug's presence and nature as a controlled substance (discussed below).9

1.3.b. You knew of the drug's presence and nature as a controlled substance

The requirement that you "knew of the drug's presence and nature as a controlled substance" simply means that you knew (1) that you were selling, transporting, furnishing, etc. the drug, and (2) that it was a controlled substance.

It isn't necessary that you knew the exact chemical makeup of the drug (or even the name of the drug).  As long as you knew the substance was an illegal narcotic, that level of knowledge will suffice.10

If you do, in fact, physically possess the drugs...and behave in a suspicious/guilty manner in an effort to try to conceal them from an investigating officer...the judge/jury may infer that you knew both of these facts based on your behavior11.

1.3.c. There was enough of the drug to be used as a controlled substance

This element of the crime only applies if you're accused of transportation of a controlled substance.

The requirement that you transport "enough of the drug to be used as a controlled substance" means transporting useless traces or residue of a drug are not enough to sustain a conviction.  On the other hand, the prosecution doesn't have to show that you transported enough of the drug for a typical user to get intoxicated.12

Once again, it is important to understand that this requirement is only applicable to charges alleging transportation. 13 Selling drugs has no such "useable quantity" requirement.14 And as of now, there is no established legal authority as to whether importing, furnishing, administering or giving ways drugs turns on whether there is a sufficient quantity of the drug.15

2. The Investigation

Investigations for California drug crimes routinely involve sting operations.  "Sting operations" are operations that are designed to catch individuals committing crimes...usually through deceptive means.

There are typically four ways that law enforcement conduct these types of operations:

  1. through the use of informants,
  2. by setting up observation or surveillance posts,
  3. by engaging in undercover transactions, and
  4. by monitoring the Internet.

2.1. Informants

Most drug busts come about through the police gaining information from a confidential informant. Sometimes these are "narcs" or "rats" who work for the police in exchange for money. Other times these are people who get busted and then strike a deal with the cops to "work off" their case by laying out other people.

Example: Tim gets arrested with three balloons of heroin. He has two prior strike convictions and could now be looking at life. The narcotics detective takes Tim into an interview room and offers him a deal. "You give up three drug dealers...and help us bust each one of them. If this works out, we won't take your case to the D.A." Tim doesn't want to go away for life...and he's dying to get back on the street and shoot up again. So he agrees to the deal.

Many times informants-who are usually drug addicts themselves, with their own agendas and ulterior motives-give the police false or misleading information. This in turn leads to bogus search warrants and the arrest of innocent people.

If an informant played a role in your case, there are steps your California drug crimes lawyer can take to try to get the charges dismissed. We can make a motion in court to reveal the identity of the informant...and then challenge the cops' assertion that their source is reliable. We can also challenge the search warrant or wire taps that the cops obtained by way of the informant's "information." Either of these efforts could get the evidence-and often the whole case-thrown out of court.

For a more detailed discussion, visit our page on the police use of informants in California.

2.2. Observation / surveillance posts

Observation or surveillance posts serve as places where officers "set up camp" to observe suspected drug activities.  Law enforcement officers conduct these "stakeouts" anywhere they suspect they will witness illegal activity -- near a suspect's home, business, or in an area where "drug deals" typically take place.

The officers' goal is to witness an actual drug sale, purchase or other illegal transaction so that they can immediately arrest a suspect.

If your drug sales or transportation arrest was based on observations made from a surveillance post, your attorney should question the officer about his/her view of the alleged transaction.  If his/her view was obstructed, it was too dark, too distant, etc., those issues could damage the officer's credibility...and help support a defense that he/she was mistaken about what truly took place.

2.3. Undercover transactions

Undercover "buy-and-busts" are extremely common within police narcotics divisions.  With respect to a drug transporting, selling, furnishing, etc. charge, an undercover cop...often wired with a mini-camera, microphone, or other transmitting device...will set up a "controlled buy" to arrest someone for selling drugs.

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

However, you might also be arrested for being in the wrong place at the wrong time.  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.

If your criminal defense lawyer is on the ball, he/she will almost always explore an "entrapment" defense (described below in Section 3.3 Entrapment) in connection with any undercover drug operation.

2.4. Internet sting operations

Internet drug investigations occur frequently these days.  The Internet provides almost unlimited opportunities to buy, sell, market and transport controlled substances in an anonymous manner to an unlimited audience.  Although this type of solicitation is clearly illegal, many who use this medium know how to do so in a subtle manner.

Examples: Some common examples of Internet marketing include (but are not limited to):
  • setting up an online "pharmacy" to sell prescription drugs without a license,
  • advertising the sale of drugs for "research purposes",
  • advertising on popular websites such as Craigslist or eBay offering "research chemicals", and
  • carrying on a blunt conversation in a chat-room about looking to "score" drugs.

Regardless of how you use the Internet in an effort to engage in drug sales, know this: Big Brother is watching!  Officers troll the net, looking for keywords and phrases that are common to drug transactions.  When they find them, they typically engage in one of two behaviors:

  1. the officer poses as a buyer or seller, hoping to lure you into an in-person undercover deal that will ultimately lead to your arrest, or
  2. the officer will purchase drugs from what they believe is your rogue pharmacy by placing an order. If the officer receives 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.
3. Legal Defenses

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.  And like many other California drug crimes, these often include allegations of illegal search and seizures, police misconduct and entrapment.

The following are some brief examples of these as well as some other common defenses to drug sales/transportation charges.

3.1. Illegal search and seizure

Many California arrests for sale or transportation of a controlled substance stem from an illegal search and seizure.  If we can show that the police only obtained the controlled substance because they violated California's search and seizure laws...perhaps by

  • 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...

It may be possible to get your case dismissed.

In order to prevail, your California drug crimes defense lawyer will most likely file a motion to suppress evidence.  If successful, the judge will suppress the evidence in question. When this happens, it usually spells the end for the prosecution's case.

3.2. Police misconduct

Along these same lines, California narcotics agents are notorious for using improper and even illegal tactics to make drug busts. Police misconduct could involve:

  • "planting" evidence (that is, placing drugs on a person, in his/her apartment, car, etc. in order to make an arrest...usually done when the cops are pretty sure that the suspect is a criminal but can't otherwise prove it),
  • lying about where they found the drugs (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 ("probable cause" is a reasonable suspicion that you are engaged in...or are about to engage in...criminal activity - without it, an officer is not supposed to stop and investigate a person/situation), or
  • using excessive force to obtain evidence (such as coercing a confession through threats and intimidation).

If your attorney suspects that police misconduct may have taken place, he/she will probably file a Pitchess motion.  A "Pitchess motion" is a request to obtain an officer's personnel records in order to identify a pattern of misconduct by the officer.

If the motion is granted...and a history of misconduct is discovered...your charges may be reduced or dismissed.  And...depending on the circumstances of the arrest...you may even have a valid claim to pursue a Section 1983 civil rights lawsuit against the officer(s) who engaged in police misconduct.

3.3. Entrapment

Entrapment serves as a legal defense when you can show that you only violated Health and Safety Code 11352 HS California's "transporting or selling a controlled substance" law 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.16

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 wore Bill down after meeting with him for over an hour.17

However,...

If, for example, you were the advertiser caught in an undercover internet drug bust, you probably would not have a good entrapment defense.  Similarly, if an undercover cop merely asked you to sell him some drugs...and you did...that probably would not rise to the level of entrapment.  Rather, entrapment takes place when the police cajole you into committing a crime that you were not otherwise predisposed to commit.

3.4. Mistaken identity / innocence

Sometimes the police don't intentionally commit misconduct. But they nevertheless get the facts wrong.  This may be the case where, for example, the narcotics aren't discovered on a person, but are discovered in a location to which several people have access.

When this happens, sometimes it may be difficult to determine who is actually responsible for the controlled substance(s)...that is, who really has possession or control over the drugs.  The cops often just try to pin it on whoever happens to be present when they find the drugs.

The result?  Police put a case on the wrong person.

As San Jose criminal defense attorney Cameron Bowman18 explains, "Because we're a law firm comprised of attorneys who have been on the other side, we know how cops and prosecutors think, gather evidence and prosecute cases.  We know the kinds of assumptions they make and, most importantly, how to challenge those assumptions."

3.5. Lack of knowledge

If you

  1. didn't know about the drug's presence, and/or
  2. didn't know that the seized narcotic was a controlled substance,

you should be acquitted of this offense.

Example: Richie and Bill are roommates sharing an apartment. Unbeknownst to Richie, Bill is selling drugs out of the location. Bill sells to an undercover and the cops raid the unit. Because Richie wasn't dealing himself, and didn't even know what was going on, he should not be held liable.

3.6. 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 can't be convicted of this offense without the specific intent to execute your offer.19

As a result, if your offer was made...

  • out of fear,
  • in jest,
  • because of coercion or entrapment,
  • with the intent of notifying law enforcement about the drug's illegal presence, or
  • based on any other benign motive,
  • and you never actually intended to follow through with your offer...you are not guilty of this charge.

    4. Penalties, Punishments and Sentencing

    Health and Safety Code 11352 HS is a felony, punishable either by (a) probation and up to one year county jail, or (b) three, four or five years in the California state prison and a maximum $20,000 fine20.   However, if you are convicted of transporting a controlled substance for sale...and you moved the drugs across more than two county lines...you face a three, six or nine-year prison term and the same potential fine21.

    In addition, a conviction under this section could lead to deportation if you are a legal immigrant or legal alien22.   For more information about how California drug offenses affect aliens, please review our article on California Crimes that Lead to Deportation.

    4.1. Aggravating factors

    In addition to the penalties above, there are a variety of additional factors that...if relevant to your offense...could either result in the highest possible sentence of those listed above or could add time to your overall prison sentence.  These factors are known as "aggravating factors" as they tend to aggravate (or worsen) your offense.

    Some of these aggravating factors include

    Health and Safety Code 11380.7 HS -- drug trafficking in certain locations

    If you are convicted of any act under Health and Safety Code 11352 HS and

    1. the controlled substance involved was heroin, cocaine or cocaine base, and
    2. the illegal activity took place upon the grounds of...or within 1,000 feet of...a drug treatment center, "detox" facility or a homeless shelter,

    you face an additional one year in the state prison.23

    Health and Safety Code 11370.4 HS -- mass sales involving specific drugs

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

    • three years in prison if the substance exceeds one kilogram by weight,
    • five years if it exceeds four kilograms,
    • ten years if the substance exceeds ten kilograms,
    • fifteen years if the drug weighs more than 20 kilograms,
    • twenty years if it weighs more than 40 kilograms, and
    • twenty-five years if the substance exceeds 80 kilograms.24

    If you receive an additional sentence under one of these weight enhancements, you also face fines of up to $8,000,000.25

    Health and Safety Code 11370.2 HS -- prior convictions

    If you are convicted of Health and Safety Code 11352 HS California's transporting or selling a controlled substance law...and have at least one prior felony conviction for another California drug crime that doesn't involve personally using drugs...you face an additional and consecutive three-year term for each prior felony conviction.26

    Health and Safety Code 11366.7 HS -- unlawful acts

    If you are a wholesaler or retailer

    1. who 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, and
    3. that the drugs/devices will be illegally sold or otherwise distributed,

    prosecutors could charge you with either a misdemeanor or a felony (a crime known as a wobbler), depending on

    1. the specific facts of your case, and
    2. your criminal history.

    A conviction subjects you to a maximum $25,000 fine and up to a year in a county jail or up to three years in the state prison27.

    California Penal Code 1170.82 PC -- controlled substances; aggravation of crime

    If you are convicted of any activity under Health and Safety Code 11352 HS...and you knew or reasonably should have known that the person to whom you were selling, furnishing, etc. illegal narcotics

    1. was pregnant,
    2. had previously been convicted of a violent felony, or
    3. was being treated for a mental health disorder or for a drug problem,

    the judge can use that fact to impose the harshest of the three possible prison terms when determining your sentence28.

    4.2. Drug diversion

    "Drug diversion" serves as an alternative to jail.  Drug diversion programs, such as

    allow people who have committed certain non-violent drug possession offenses to serve their sentences in drug treatment programs in lieu of jail or prison.  Offenses involving sales and transportation do not qualify for this relief.

    However, a savvy California criminal defense attorney may be able to negotiate a plea bargain down to a Health and Safety Code 11350 HS simple possession of a controlled substance which would allow you to participate in one of these diversion programs.

    Drug diversion not only keeps you from being incarcerated but it also entitles you to a dismissal of your charge(s) once you successfully complete the program.

    5. Related Offenses

    There are a variety of offenses that are closely related to Health and Safety Code 11352 HS California's "transporting or selling a controlled substance" law in that they may be charged in connection with or in lieu of HS 11352.

    Some of the most common related offenses include (but are not limited to):

    5.1. Health and Safety Code sections 11353 & 11353.1 HS -- offenses involving minors

    If you are guilty of any of the offenses under Health and Safety Code 11352 HS...and you

    1. used a minor (that is, a person under 18) to sell, furnish, transport, etc. the drugs, or
    2. sold, gave, or offered to sell, give, furnish, etc. drugs to a minor,

    you face a three, six, or nine-year prison sentence.  In addition, if you are convicted of this offense, and

    1. the drugs involved were heroin, cocaine or cocaine base, and
    2. the illegal activity took place on or within 1,000 feet of a school, place of worship, or essentially any other facility where minors are present,

    you face an additional one or two years in the state prison.

    And if you are at least four years older than the minor involved, you face a separate and additional one, two or three-year state prison sentence31.

    Either of these violations could additionally subject to you a conviction for Penal Code 272 PC California's contributing to the delinquency of a minor law.32

    5.2. Health and Safety Code 11351 HS -- possession or purchase of a controlled substance for sale

    Health and Safety Code 11351 HS California's "possession of a controlled substance with intent to sell" law involves the same illegal narcotics as HS 11352.  However, this offense is slightly less serious, because it doesn't involve actual sales or transportation...only possession of the drugs with the intent to sell them.

    If convicted of this felony, you face two, three or four years in the state prison.33

    5.3. Health and Safety Code sections 11377, 11378 and 11379 HS -- possession, sales and transportation of methamphetamines

    Health and Safety Code sections 11377, 11378 and 11379 HS California's laws against the possession, sales and transportation of methamphetamines are very similar to Health and Safety Codes 11350, 11351 and 11352 (all discussed above).

    The major difference between these laws is the controlled substances that are involved.  The drugs covered by these laws also include (but are not limited to):

    These drugs are considered a somewhat less serious and...as a result...the penalties for possessing, intending to sell and actually selling/transporting these controlled substances are also less severe.

    Health and Safety Code 11377 HS regarding "personal possession" is a wobbler, subjecting you to a year in county jail or to three years in the state prison34.   However, Health and Safety 11378 "possession for sale" and HS 11379 "sales/transportation of controlled substances" are both felonies, subjecting you to 16 months to nine years in the state prison35.

    *Certain drugs...such as "GHB"...are addressed under more than one law.  When this is the case, the prosecutor has the discretion to choose which charges to file.

    5.4. Health and Safety Code 11550 HS -- being under the influence of drugs

    In a similar fashion, many drug deals take place when the dealer is already "high" or when he/she "samples" the drugs with the prospective buyer.  If you are under the influence of drugs "in any detectable manner", the prosecution could additionally charge you with Health and Safety Code 11350 HS California's under the influence" law.36

    A conviction for this misdemeanor drug offense subjects you to possible jail time.  However, eligible defendants may be able to participate in drug diversion instead.

    Call us for help...
    Img-call-for-help

    If you or loved one is charged with Health and Safety Code 11352 HS selling or transporting a controlled substance and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

    Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's laws re selling a controlled substance.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.37

    Legal References:

    1 Our California drug crimes defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

    2 California Health and Safety Code 11352 HS -- California's law against selling or transporting controlled substances.  ("Transportation, sale, giving away, etc., of designated controlled substances; punishment.  ("(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 in the state prison for three, four, or five years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years.")

    3 See California's "transporting or selling a controlled substance" law, endnote 2, above.

    4 California Jury Instructions, Criminal -- CALJIC 12.03 -- Offering to sell or transport controlled substances.  ("(Health and Safety Code � 11352 [California's "transporting or selling a controlled substance" law] or � 11379) [Defendant is accused [in Count[s] ] of having violated section of the Health and Safety Code, a crime.] Every person who offers to sell, furnish, administer, or give away __________, a controlled substance, is guilty of a violation of Health and Safety Code section , a crime. In order to prove this crime, each of the following elements must be proved: 1 A person offered to ____________________, a controlled substance; and 2 The person making the offer had the specific intent to __________ the controlled substance.")

    5 People v. Ormiston (2003) 105 Cal.App.4th 676, 682-683.  ("Appellant asserts that the more severe penalties imposed for transportation of methamphetamine pursuant to section 11379 [which is analogous to Health and Safety Code 11352 HS California's "transporting or selling controlled substances" law] were not intended by the Legislature to "include walking while in possession." The uncomplicated issue, which nevertheless appears not to have been previously resolved, is whether walking may be a form of transportation for purposes of section 11379, which provides that "every person who transports ... any controlled substance ... shall be punished by imprisonment in the state prison for a period of two, three, or four years." (Italics added.) FN3 " 'Transport,' as used in this statute, has no technical definition," but rather "as used in the statute is 'commonly understood and of a plain, nontechnical meaning.' ( People v. Eastman (1993) 13 Cal.App.4th 668, 673-677 [16 Cal.Rptr.2d 608].)" ( People v. LaCross (2001) 91 Cal.App.4th 182, 185 [109 Cal.Rptr.2d 802].) "Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character." ( People v. Meza (1995) 38 Cal.App.4th 1741, 1746 [45 Cal.Rptr.2d 844]; see also People v. Emmal (1998) 68 Cal.App.4th 1313, 1315-1316 [80 Cal.Rptr.2d 907].) "The crux of the crime of transporting is movement of the contraband from one place to another." (People v. Kilborn (1970) 7 Cal.App.3d 998, 1003 [87 Cal.Rptr. 189]; see also People v. LaCross, supra, at p. 185; People v. Arndt (1999) 76 Cal.App.4th 387, 398 [90 Cal.Rptr.2d 415].)  FN3 A number of cases have considered the meaning of the term "transport" in the context of the movement of drugs other than by walking. The evidence indisputably establishes the movement of methamphetamine by appellant from one place to another. After a methamphetamine processing enterprise was discovered in a hotel room jointly occupied by appellant, later the same day he was detained while "walking southbound away from the hotel" with three baggies of "recently manufactured" methamphetamine powder in his jacket pocket. Appellant's use of foot travel, rather than some other means of conveyance, to take the methamphetamine to whatever destination he intended to reach, does not negate the element of transportation. Section 11379 neither mentions nor excludes from its scope any particular means of transportation. A violation of the statute requires movement of the controlled substance to another location, but not the use of a mechanized or motorized means of delivery. It is the trafficking in controlled substances, not the method used to achieve it, that is the misconduct the statute seeks to prevent.")

    See also People v. LaCross (2001) 91 Cal.App.4th 182, 185.  ("Defendant argues he did not "transport" methamphetamine under section 11379 by carrying it on his bicycle. We reject this claim. The term "transport" includes moving illegal drugs from one place to another, even by bicycle.").

    6 People v. Emmal (1998) 68 Cal.App.4th 1313, 1316-11317.

    7 CALJIC 12.02 -- Selling or transporting controlled substances.  ("(Health and Safety Code � 11352 [California's "transporting or selling a controlled substance" law] or � 11379) [Defendant is accused [in Count[s] ] of having violated section of the Health and Safety Code, a crime.] Every person who [transports,] sells, furnishes, administers, or gives away __________, a controlled substance, is guilty of a violation of Health and Safety Code section , a crime. ["Sale" means any exchange of __________ for cash, favors, services, goods or other non-cash benefits.] In order to prove this crime, each of the following elements must be proved: 1 A person ____________________, a controlled substance; and 2 That person knew of its presence and nature as a controlled substance. *USE NOTE. This instruction must be revised to cover administering, transporting or importing by substituting an appropriate verb and by adding as an element three, "that the substance (transported, etc.) was in an amount sufficient to be used as a controlled substance."")

    See also CALJIC 12.03 Offering to sell or transport a controlled substance, endnote 4, above.

    8 People v. Rogers (1971) 5 Cal.3d 129, 134.  ("Possession may be either actual or constructive; the latter is established by showing that defendant maintained some control or right to control over contraband in the physical possession of another.")

    9 See same at 131-132.  ("Although possession is commonly a circumstance tending to prove transportation, it is not an essential element of that offense and one may 'transport' marijuana or other drugs even though they are in the exclusive possession of another. ( People v. Valerio, 13 Cal.App.3d 912, 921, 92 Cal.Rptr. 82; People v. Vasquez, 135 Cal.App.2d 446, 448, 287 P.2d 385; People v. Watkins, 96 Cal.App.2d 74, 76, 214 P.2d 414; see 2 Witkin, Cal.Crimes (1963) p. 644; but see People v. Solo, Supra, 8 Cal.App.3d 201, 206, 86 Cal.Rptr. 829; People v. Sanders, 250 Cal.App.2d 123, 134, 58 Cal.Rptr. 259.) For example, were defendant shown to have aided and abetted his passengers in carrying, conveying or concealing drugs in their possession, his conduct would have sustained a conviction of transportation...To the extent that People v. Solo, Supra, 8 Cal.App.3d 201, and People v. Sanders, Supra, 250 Cal.App.2d 123, 58 Cal.Rptr. 259 suggest that possession is a necessary element to the offense of transportation, those cases are disapproved.")

    10 People v. Guy (1980) 107 Cal.App.3d 593, 600-601.  ("Defendant next contends that the court should have instructed the jury that the prosecution had to prove defendant knew the controlled substance he possessed was PCP.FN5 Defendant reasons that because he did not know the drug was PCP, "he did not have the requisite knowledge" to be convicted of possession of PCP for sale under Health and Safety Code section 11378.FN6 This position has been rejected in People v. Garringer (1975) 48 Cal.App.3d 827 [121 Cal.Rptr. 922].FN7 In that case the court wisely determined that knowledge for the purpose of conviction under Health and Safety Code section 11377, is knowledge of the controlled nature of the substance and not its precise chemical composition. Although the Garringer court dealt with mere possession rather than possession for sale, the knowledge element is the same.")

    11 People v. Eckstrom (1986) 187 Cal.App.3d 323, 331.  ("As to knowledge of its presence and character, the mere possession of narcotics constitutes substantial evidence that the possessor of the narcotic knew of its nature. ( People v. Gordon, supra, 10 Cal.App.3d at p. 460, 89 Cal.Rptr. 214, citing People v. White (1969) 71 Cal.2d 80, 83, 75 Cal.Rptr. 208, 450 P.2d 600.) Further, "[k]nowledge of the presence of contraband and of its narcotic content may be inferred from the accused's conduct or statements at or near the time of his arrest. [Citations.]" ( People v. Solo (1970) 8 Cal.App.3d 201, 206, 86 Cal.Rptr. 829.)")

    12 People v. Leal (1966) 64 Cal.2d 504, 512.  ("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 [under Health and Safety Code 11352 HS California's law against selling or transporting a controlled substance]."

    See also People v. Rubacalba (1993) 6 Cal.4th 62, 66.  ("These cases make clear, and we agree, that the Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven.")

    See also People v. Emmal (1998) 68 Cal.App.4th 1313, 1316.  ("As we have observed before, "Transportation of a controlled substance [prohibited under Health and Safety Code 11352 HS California's transporting or selling a controlled substance law] is established by [simply] carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character.")

    13 See same.  ("As we have observed before, "Transportation of a controlled substance is established by [simply] carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character.")

    14 People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524.  ("But, as the Mitchell opinion itself illustrates, simple possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell-although it could be a lesser related offense (see People v. Geiger (1984) 35 Cal.3d 510 [199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055])-because the former crime contains elements a sales offense does not: knowing possession of a usable quantity. ( People v. Rubacalba (1993) 6 Cal.4th 62, 65-66 [23 Cal.Rptr.2d 628, 859 P.2d 708].) A conviction for selling controlled substances  [under Health and Safety Code 11352 HS California's transporting or selling a controlled substance law] does not require proof of possession at all, much less possession of a usable quantity.")

    15 Judicial Council Of California Criminal Jury Instruction (CALCRIM 2300) -- California's transporting or selling a controlled substance" law.  Bench Notes.  ("There is no case law on whether furnishing, administering, giving away, or importing require usable quantities.")

    16 People v. Barraza, (1979) 23 Cal.3d 675, 689. ("For all the foregoing reasons we hold that the proper test of entrapment in California 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.")

    17 Facts taken from People v. Barraza, endnote16, above.

    18 San Jose criminal defense attorney Cameron Bowman defends clients throughout Northern California which includes (but is not limited to) the Santa Clara, Contra Costra, San Francisco and Alameda County courthouses.

    19 See California Jury Instructions, Criminal -- CALJIC 12.03 -- Offering to sell or transport controlled substances, endnote 4, above.

    20 See Heath and Safety Code 11352 HS California's law against selling or transporting a controlled substance, endnote 2, above.

    See also California Health and Safety Code 11372 HS -- Fines.  ("(a) In addition to the term of imprisonment provided by law for persons convicted of violating Section 11350, 11351, 11351.5, 11352 [California's "transporting or selling a controlled substance" law], 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. (e) The court shall make a finding, prior to the imposition of the fines authorized by subdivisions (b) to (e), inclusive, that there is a reasonable expectation that the fine, or a substantial portion thereof, could be collected within a reasonable period of time, taking into consideration the defendant's income, earning capacity, and financial resources.")

    21 See Heath and Safety Code 11352 HS California's law against selling or transporting a controlled substance, endnote 2, above.

    228 U.S. Code Section 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 (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.  And because Health and Safety Code 11352 HS California's transporting or selling a controlled substance law is a crime involving drugs, it is a California crime that   could lead to deportation.

    23 California Health and 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 in the state prison 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. (b)(1) The additional punishment provided in this section shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. (2) The additional punishment provided in this section shall not be imposed if any other additional punishment is imposed pursuant to Section 11353.1, 11353.5, 11353.6, 11353.7, or 11380.1. (c) Notwithstanding any other provision of law, the court may strike the additional punishment provided for in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment. In determining whether or not to strike the additional punishment, the court shall consider the following factors and any relevant factors in aggravation or mitigation in Rules 4.421 and 4.423 of the California Rules of Court. (1) The following factors indicate that the court should exercise its discretion to strike the additional punishment unless these factors are outweighed by factors in aggravation: (A) The defendant is homeless, or is in a homeless shelter or transitional housing. (B) The defendant lacks resources for the necessities of life. (C) The defendant is addicted to or dependent on controlled substances. (D) The defendant's motive was merely to maintain a steady supply of drugs for personal use. (E) The defendant was recruited or exploited by a more culpable person to commit the crime. (2) The following factors indicate that the court should not exercise discretion to strike the additional punishment unless these factors are outweighed by factors in mitigation: (A) The defendant, in committing the crime, preyed on homeless persons, drug addicts or substance abusers who were seeking treatment, shelter or transitional services. (B) The defendant's primary motive was monetary compensation. (C) The defendant induced others, particularly homeless persons, drug addicts and substance abusers, to become involved in trafficking. (d) For the purposes of this section, the following terms have the following meanings: (1) "Detoxification facility" means any premises, place, or building in which 24-hour residential nonmedical services are provided to adults who are recovering from problems related to alcohol, drug, or alcohol and drug misuse or abuse, and who need alcohol, drug, or alcohol and drug recovery treatment or detoxification services. (2) "Drug treatment program" or "drug treatment" has the same meaning set forth in subdivision (b) of Section 1210 of the Penal Code. (3) "Homeless shelter" includes, but is not limited to, emergency shelter housing, as well as transitional housing, but does not include domestic violence shelters. "Emergency shelter housing" is housing with minimal support services for homeless persons in which residency is limited to six months or less and is not related to the person's ability to pay. "Transitional housing" means housing with supportive services, including self-sufficiency development services, which is exclusively designed and targeted to help recently homeless persons find permanent housing as soon as reasonably possible, limits residency to 24 months, and in which rent and service fees are based on ability to pay. (4) "Trafficking" means any of the unlawful activities specified in Sections 11351, 11351.5, 11352 [California's "transporting or selling a controlled substance" law], 11353, 11354, 11378, 11379, 11379.6, and 11380. It does not include simple possession or drug use.")

    24 California Health and Safety Code 11370.4 HS -- Convictions under specified sections 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 [California's transporting or selling controlled substances law] 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. The conspiracy enhancements provided for in this subdivision shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense. (b) Any person convicted of a violation of, or of conspiracy to violate, Section 11378, 11378.5, 11379, or 11379.5 with respect to a substance containing methamphetamine, amphetamine, phencyclidine (PCP) and its analogs shall receive an additional term as follows: (1) Where the substance exceeds one kilogram by weight, or 30 liters by liquid volume, the person shall receive an additional term of three years. (2) Where the substance exceeds four kilograms by weight, or 100 liters by liquid volume, the person shall receive an additional term of five years. (3) Where the substance exceeds 10 kilograms by weight, or 200 liters by liquid volume, the person shall receive an additional term of 10 years. (4) Where the substance exceeds 20 kilograms by weight, or 400 liters by liquid volume, the person shall receive an additional term of 15 years. In computing the quantities involved in this subdivision, plant or vegetable material seized shall not be included. The conspiracy enhancements provided for in this subdivision shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense. (c) The additional terms provided in this section shall not be imposed unless the allegation that the weight of the substance containing heroin, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, cocaine as specified in paragraph (6) of subdivision (b) of Section 11055, methamphetamine, amphetamine, or phencyclidine (PCP) and its analogs exceeds the amounts provided in this section is charged in the accusatory pleading and admitted or found to be true by the trier of fact. (d) The additional terms provided in this section shall be in addition to any other punishment provided by law. (e) Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.")

    25 See California Health and Safety Code 11372 HS - Fines, endnote 20, above.

    26 California Health and 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 [California's "transporting or selling a controlled substance" law] 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. (b) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378.5, 11379.5, 11379.6, 11380.5, or 11383 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. (c) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 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. (d) The enhancements provided for in this section shall be pleaded and proven as provided by law. (e) The conspiracy enhancements provided for in this section shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense. (f) Prior convictions from another jurisdiction qualify for use under this section pursuant to Section 668.")

    27 California Health and Safety Code 11366.7 HS -- Sale of chemical, drug, laboratory apparatus or device with knowledge or intent of use for unlawful manufacture, processing, or preparation of controlled substance.  ("(a) This section shall apply to the following: (1) Any chemical or drug. (2) Any laboratory apparatus or device. (b) Any retailer or wholesaler who sells any item in paragraph (1) or (2) of subdivision (a) with knowledge or the intent that it will be used to unlawfully manufacture, compound, convert, process, or prepare a controlled substance for unlawful sale or distribution, shall be punished by imprisonment in a county jail for not more than one year, or in the state prison, or by a fine not exceeding twenty-five thousand dollars ($25,000), or by both that imprisonment and fine. Any fine collected pursuant to this section shall be distributed as specified in Section 1463.10 of the Penal Code.")

    See also Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail.  ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")

    28 California Penal Code 1170.82 PC -- Controlled substances; sale or transfer; aggravation of crime.  ("Upon a conviction of a violation of Section 11352 [California's "transporting or selling a controlled substance" law], 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.")

    29 California Penal Code 1210.1 PC (also known as Proposition 36) -- Possession of Controlled Substances; Probation; Exceptions.

    30 California Penal Code 1000 PC -- Application of chapter to certain violations.  ("(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading for a violation of Section 11350, 11357, 11364, 11365, 11377, or 11550 of the Health and Safety Code, or subdivision (b) of Section 23222 of the Vehicle Code, or Section 11358 of the Health and Safety Code if the marijuana planted, cultivated, harvested, dried, or processed is for personal use, or Section 11368 of the Health and Safety Code if the narcotic drug was secured by a fictitious prescription and is for the personal use of the defendant and was not sold or furnished to another, or subdivision (d) of Section 653f if the solicitation was for acts directed to personal use only, or Section 381 or subdivision (f) of Section 647 of the Penal Code, if for being under the influence of a controlled substance, or Section 4060 of the Business and Professions Code, and it appears to the prosecuting attorney that, except as provided in subdivision (b) of Section 11357 of the Health and Safety Code, [and not to convictions involving drug sales such as Health and Safety Code 11352 HS California's transporting or selling a controlled substance law] all of the following apply to the defendant: (1) The defendant has no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense. (2) The offense charged did not involve a crime of violence or threatened violence. (3) There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in this subdivision. (4) The defendant's record does not indicate that probation or parole has ever been revoked without thereafter being completed. (5) The defendant's record does not indicate that he or she has successfully completed or been terminated from diversion or deferred entry of judgment pursuant to this chapter within five years prior to the alleged commission of the charged offense. (6) The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense. (b) The prosecuting attorney shall review his or her file to determine whether or not paragraphs (1) to (6), inclusive, of subdivision (a) apply to the defendant. Upon the agreement of the prosecuting attorney, law enforcement, the public defender, and the presiding judge of the criminal division of the superior court, or a judge designated by the presiding judge, this procedure shall be completed as soon as possible after the initial filing of the charges. If the defendant is found eligible, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. This procedure is intended to allow the court to set the hearing for deferred entry of judgment at the arraignment. If the defendant is found ineligible for deferred entry of judgment, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. The sole remedy of a defendant who is found ineligible for deferred entry of judgment is a postconviction appeal. (c) All referrals for deferred entry of judgment granted by the court pursuant to this chapter shall be made only to programs that have been certified by the county drug program administrator pursuant to Chapter 1.5 (commencing with Section 1211) of Title 8, or to programs that provide services at no cost to the participant and have been deemed by the court and the county drug program administrator to be credible and effective. The defendant may request to be referred to a program in any county, as long as that program meets the criteria set forth in this subdivision. (d) Deferred entry of judgment for a violation of Section 11368 of the Health and Safety Code shall not prohibit any administrative agency from taking disciplinary action against a licensee or from denying a license. Nothing in this subdivision shall be construed to expand or restrict the provisions of Section 1000.4. (e) Any defendant who is participating in a program referred to in this section may be required to undergo analysis of his or her urine for the purpose of testing for the presence of any drug as part of the program. However, urine analysis results shall not be admissible as a basis for any new criminal prosecution or proceeding.")

    31 California Health and Safety Code 11353 HS -- Adult inducing minor to violate provisions; use or employment of minors; punishment.  ("Every person 18 years of age or over, (a) who in any voluntary manner solicits, induces, encourages, or intimidates any minor with the intent that the minor shall violate any provision of this chapter or Section 11550 with respect to either (1) a controlled substance which is 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, (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.")

    See also California Health and 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. (b) The additional punishment provided in this section shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. (c) The additional punishment provided in this section shall be in addition to any other punishment provided by law and shall not be limited by any other provision of law. (d) Notwithstanding any other provision of law, the court may strike the additional punishment provided for in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment. (e) As used in this section the following definitions shall apply: (1) "Playground" means any park or recreational area specifically designed to be used by children which has play equipment installed, including public grounds designed for athletic activities such as baseball, football, soccer, or basketball, or any similar facility located on public or private school grounds, or on city, county, or state parks. (2) "Youth center" means any public or private facility that is primarily used to host recreational or social activities for minors, including, but not limited to, private youth membership organizations or clubs, social service teenage club facilities, video arcades, or similar amusement park facilities. (3) "Video arcade" means any premises where 10 or more video game machines or devices are operated, and where minors are legally permitted to conduct business. (4) "Video game machine" means any mechanical amusement device, which is characterized by the use of a cathode ray tube display and which, upon the insertion of a coin, slug, or token in any slot or receptacle attached to, or connected to, the machine, may be operated for use as a game, contest, or amusement. (5) "Within 1,000 feet of the grounds of any public or private elementary, vocational, junior high, or high school" means any public area or business establishment where minors are legally permitted to conduct business which is located within 1,000 feet of any public or private elementary, vocational, junior high, or high school. (6) "Child day care facility" has the meaning specified in Section 1596.750. (f) This section does not require either that notice be posted regarding the proscribed conduct or that the applicable 1,000-foot boundary limit be marked.")

    32 California Penal Code 272 PC -- Contributing to the delinquency of a minor. ("(a)(1) Every person who commits any act or omits the performance of any duty, which act or omission causes or tends to cause or encourage any person under the age of 18 years to come within the provisions of Section 300, 601, or 602 of the Welfare and Institutions Code or which act or omission contributes thereto, or any person who, by any act or omission, or by threats, commands, or persuasion, induces or endeavors to induce any person under the age of 18 years or any ward or dependent child of the juvenile court to fail or refuse to conform to a lawful order of the juvenile court, or to do or to perform any act or to follow any course of conduct or to so live as would cause or manifestly tend to cause that person to become or to remain a person within the provisions of Section 300, 601, or 602 of the Welfare and Institutions Code, is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail for not more than one year, or by both fine and imprisonment in a county jail, or may be released on probation for a period not exceeding five years.

    33 Health and Safety Code 11351 HS -- Possession or purchase for sale of designated controlled substances; punishment.  ("Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) 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, shall be punished by imprisonment in the state prison for two, three, or four years.")

    34 Health and Safety Code 11377 HS - Possession of methamphetamines.  ("(a) Except as authorized by law and as otherwise provided in subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) 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), (e), or (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 a county jail for a period of not more than one year or in the state prison. (b)(1) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in subdivision (f) of Section 11056, and who has not previously been convicted of a violation involving a controlled substance specified in subdivision (f) of Section 11056, is guilty of a misdemeanor. (2) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in subdivision (g) of Section 11056 is guilty of a misdemeanor. (3) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in paragraph (7) or (8) of subdivision (d) of Section 11055 is guilty of a misdemeanor. (4) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in paragraph (8) of subdivision (f) of Section 11057 is guilty of a misdemeanor. (c) In addition to any fine assessed under subdivision (b), the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates subdivision (a), with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.")

    35 California Health and Safety Code 11378 HS - Possession of methamphetamines for sale; punishment.  ("Except as otherwise provided in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale 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), (e), or (f), except paragraph (3) of subdivision (e) and subparagraphs (A) and (B) of paragraph (2) of subdivision (f), of Section 11055, shall be punished by imprisonment in the state prison."  This law mimics Health and Safety Code 11351 HS California's possession or purchase of a controlled substance for sale law, but prohibits different controlled substances and carries lesser penalties.)

    See also California Health and Safety Code 11379 HS -- Transportation, sale, furnishing, etc. of methamphetamines; punishment.  ("(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. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years.")

    36 See People v. Enriquez, endnote 37, above.

    See also California Health and Safety Code 11550 HS -- Under the influence.  (" (a) No person shall use, or be under the influence of any controlled substance which is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), (21), (22), or (23) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (1) or (2) of subdivision (d) or in paragraph (3) of subdivision (e) of Section 11055, or (2) a narcotic drug classified in Schedule III, IV, or V, except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances. It shall be the burden of the defense to show that it comes within the exception. Any person convicted of violating this subdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days or more than one year in a county jail. The court may place a person convicted under this subdivision on probation for a period not to exceed five years and, except as provided in subdivision (c), shall in all cases in which probation is granted require, as a condition thereof, that the person be confined in a county jail for at least 90 days. Other than as provided by subdivision (c), in no event shall the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail. (b) Any person who (1) is convicted of violating subdivision (a) when the offense occurred within seven years of that person being convicted of two or more separate violations of that subdivision, and (2) refuses to complete a licensed drug rehabilitation program offered by the court pursuant to subdivision (c), shall be punished by imprisonment in a county jail for not less than 180 days nor more than one year. In no event does the court have the power to absolve a person convicted of a violation of subdivision (a) that is punishable under this subdivision from the obligation of spending at least 180 days in confinement in a county jail unless there are no licensed drug rehabilitation programs reasonably available. For the purpose of this section, a drug rehabilitation program shall not be considered reasonably available unless the person is required to pay no more than the court determines that he or she is reasonably able to pay, in order to participate in the program. (c) The court may, when it would be in the interest of justice, permit any person convicted of a violation of subdivision (a) punishable under subdivision (a) or (b) to complete a licensed drug rehabilitation program in lieu of part or all of the imprisonment in the county jail. As a condition of sentencing, the court may require the offender to pay all or a portion of the drug rehabilitation program. In order to alleviate jail overcrowding and to provide recidivist offenders with a reasonable opportunity to seek rehabilitation pursuant to this subdivision, counties are encouraged to include provisions to augment licensed drug rehabilitation programs in their substance abuse proposals and applications submitted to the state for federal and state drug abuse funds. (d) In addition to any fine assessed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (e) Notwithstanding subdivisions (a) and (b) or any other provision of law, any person who is unlawfully under the influence of cocaine, cocaine base, heroin, methamphetamine, or phencyclidine while in the immediate personal possession of a loaded, operable firearm is guilty of a public offense punishable by imprisonment in a county jail for not exceeding one year or in state prison.   As used in this subdivision "immediate personal possession" includes, but is not limited to, the interior passenger compartment of a motor vehicle. (f) Every person who violates subdivision (e) is punishable upon the second and each subsequent conviction by imprisonment in the state prison for two, three, or four years. (g) Nothing in this section prevents deferred entry of judgment or a defendant's participation in a preguilty plea drug court program under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code unless the person is charged with violating subdivision (b) or (c) of Section 243 of the Penal Code. A person charged with violating this section by being under the influence of any controlled substance which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or in paragraph (3) of subdivision (e) of Section 11055 and with violating either subdivision (b) or (c) of Section 243 of the Penal Code or with a violation of subdivision (e) shall be ineligible for deferred entry of judgment or a preguilty plea drug court program.")

    37 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's drug crimes. Our Nevada law offices are located in Reno and Las Vegas.

    Free attorney consultations...

    Our attorneys want to hear your side of the story. Contact us 24/7 to schedule a FREE consultation with a criminal defense lawyer. We may be able to get your charges reduced or even dismissed altogether. And if necessary, we will champion your case all the way to trial.

    Regain peace of mind...

    Our defense attorneys understand that being accused of a crime is one of the most difficult times of your life. Rely on us to zealously and discreetly protect your rights and to fight for the most favorable resolution possible.

    Office Locations

    Shouse Law Group has multiple locations all across California and Nevada. Click Office Locations to find out which office is right for you.