Possession, Sales & Transportation of Methamphetamines
California Health & Safety Code 11377 11378 & 11379 HS

Methamphetamines are some of the most abused drugs in California.  And as California's "war on drugs" continues, overzealous officers and prosecutors arrest and prosecute as many people as they can in an effort to "win" this war.  The problem is that many times, they arrest and prosecute innocent people on bogus charges.

That's where we come in.

Our California drug crimes defense lawyers are experts when it comes to defending against your crystal meth possession and sales charges.  We know the most effective ways to have your charges reduced (or even dismissed) so that you are not labeled and stigmatized as a "drug offender."

In this article, our California criminal defense attorneys1 will explain the laws that regulate the possession, sales and transportation of methamphetamines by addressing the following:

1. A Primer on Methamphetamines
2. Health & Safety Code 11377 HS -- Possession of Methamphetamines

2.1. Legal defenses

3. Health & Safety Code 11378 HS -- Possession of Methamphetamines for Sale

3.1. Legal defenses

4. Health & Safety Code 11379 HS -- Transporting or Selling Methamphetamines

4.1. Legal defenses

5. Penalties, Punishment and Sentencing

5.1. Aggravating factors

5.2. Drug diversion

6. Related Offenses

6.1. Health and Safety Code 11350 HS -- possession of a controlled substance

6.2. Health and Safety Code 11351 HS -- possession of a controlled substance for sale

6.3. Health and Safety Code 11352 HS -- transporting or selling a controlled substance

6.4. Driving under the influence of meth

6.5. Health and Safety Code 11550 HS -- being under the influence of a controlled substance

6.6 Health & Safety Code 11379.6 - Manufacturing a controlled substance

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 California's Law Against Possession of a Controlled Substance; Health and Safety Code 11351 HS California's Law Against Possession of a Controlled Substance for Sale; Health and Safety Code 11352 HS California's Law Against Transporting or Selling a Controlled Substance; Health and Safety Code 11550 HS California's "Under the Influence of a Controlled Substance" Law; Driving Under the Influence of Drugs; Cocaine; Heroin; Gamma-Hydroxybutyric Acid "GHB"; Phencyclidine "PCP"; Ketamine; Codeine; Hydrocodone "Vicodin"; California Legal Defenses; California's Search and Seizure Laws; The Legal Defense of Entrapment; Wobblers; Misdemeanors; Felonies; Proposition 36; Penal Code 1000 PC Drug Diversion; and California Drug Courts.

1. A Primer on Methamphetamines

Methamphetamines...which are also commonly referred to as meth, crystal, crystal meth, speed, blow, rock, tina, chalk, ice, glass, and crank...are classified as a controlled substance.   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".

Possessing a controlled substance, such as meth, is typically illegal without a valid prescription.  Similarly, selling and/or transporting these types of drugs are also prohibited absent very specific exceptions (like being a medical professional who possesses or sells these drugs in accordance with California's drug laws).

Crystal meth, a part of the phetamine family, is a stimulant.  It speeds up your body and brain.  It is available in pills, powder and in a chunky crystal "rock" form. It can be smoked, injected, swallowed, snorted, or "huffed" (that is, inhaled in a toxic gas form).

Methamphetamines were primarily used in the 1950s to help keep truckers, college students and athletes stay awake and alert.  Today it is recognized as a dangerous narcotic, and is typically only prescribed for treating

Despite its legal use, methamphetamines are frequently abused and made / sold in an illegal manner.  "Meth labs"...also known as clandestine labs and "mom and pop" labs...are very common in California, particularly in the Central Valley.  People run these (often) makeshift "labs" out of their homes, garages, mobile homes, and warehouses.

Children experimenting with drugs, drug addicts and mainstream housewives/"soccer moms" alike have been seduced by methamphetamine's easy accessibility and relatively low cost.  As a result, this is one of the most troublesome drugs in California (and, reportedly, the second most commonly abused illegal drug in the world)2.

Because of the prevalence of methamphetamine use, offenses involving its possession, sale and transportation are aggressively investigated and prosecuted.

2. Health & Safety Code 11377 HS -- Possession of Methamphetamines

California Health & Safety Code 11377 HS prohibits possession of methamphetamines without a valid prescription.3

In order to convict you of this offense, the prosecutor must prove the following four facts...otherwise known as "elements" of the offense:

  1. that you possessed methamphetamines...that is, that you (a) actually had them on your person, or (b) that you had the right to control them (which is known as "constructive" possession),
  2. that you knew you possessed methamphetamines,
  3. that you knew methamphetamines are a controlled substance...that is, that you knew the drug's nature as a controlled substance...not necessarily that you knew its precise chemical makeup or that it even was meth, per se, and
  4. that there was a sufficient quantity of the methamphetamines to be used as a drug (not merely useless traces or residue).4

It is also important to note that this law is not exclusive to methamphetamines...they are just one of the most commonly prosecuted.  Some of the other controlled substances that are addressed under this code section include (but are not limited to):

2.1. Legal defenses

Although the specific legal defenses that apply to your case will vary, several defenses are common to many possession charges.  Some of these include (but are not limited to):

  • you held a valid prescription for the methamphetamines...and only possessed the amount of meth that was consistent with the prescription's purpose,
  • the crystal meth actually belonged to someone else; OR
  • the speed was discovered in a manner that violated California's search and seizure laws (perhaps either because the officer didn't have a valid California search warrant, or because he/she stopped you and searched you without your consent and without probable cause).
3. Health and Safety Code 11378 HS -- Possession of Methamphetamines for Sale

Health and Safety Code 11378 HS California's law against possession of methamphetamines for sale prohibits just that...possessing meth with the intent to sell it.  But just like HS 11377 above, Health and Safety Code 11378 applies to additional controlled substances as well.

You violate this law when you

  1. possess crystal meth,
  2. know that you possess crystal meth,
  3. know it is a controlled substance,
  4. possess enough methamphetamines to sell them for consumption as a controlled substance, and
  5. possess the drug with the specific intent to sell it.6

Possession with the intent to sell meth is more serious than simple possession of the drug.  And as Riverside criminal defense attorney Michael Scafiddi7 explains, "This is why having a skilled California drug crimes defense lawyer is so important.  If your attorney can convince the prosecutor/judge/jury that you possessed the drug only for personal use...and not to sell it...you will not only face less severe penalties, but will also be entitled to participate in a drug diversion program" (discussed below in Section 5.1. Drug Diversion).

3.1. Legal defenses

When it comes to defending a "possession for sale" case, there are three main factors that typically distinguish personal possession from possession to sell.  These include

  • quantity (how much of the drug did you possess?),
  • packaging (were the drugs packaged in a number of smaller packages (bindles, baggies, etc.) that would indicate your intent to sell them?), and
  • paraphernalia (was drug paraphernalia present?  Drug paraphernalia are instruments used to smoke, snort, or otherwise consume a drug - their presence would tend to indicate personal use).

If you can prove that you only possessed the meth for personal use, you should be able to get the charged reduced to simple possession.

Additionally, defenses that raise issues such as the facts that

  • you held a valid prescription for the drugs,
  • you didn't possess the controlled substance or even realize that it was present, and
  • the methamphetamines were discovered based on an illegal search and seizure

(all of which were mentioned under Health and Safety Code 11377 HS, Section 2.1. Legal defenses, above) may also be relevant to a possession for sale case.

4. Health & Safety Code 11379 HS -- Transporting or Selling Methamphetamines

Health and Safety Code 11379 HS also deals with the sale of methamphetamines.  However, unlike HS 11378 which only involves possession with the intent to sell meth, this offense involves actually

  • selling (exchanging the drugs for money, services or anything else of value),
  • transporting (moving the drugs from one location to another, regardless of the distance of the move),
  • giving away / providing, and/or
  • administering

methamphetamines.  And, for that matter, offering or attempting to perform any of these acts is also prohibited under this law.

Again, this offense is not exclusive to transporting / selling meth, but includes the additional drugs previously listed. It also encompasses a variety of other controlled substances specifically listed in the language of this law.8

In order to prove that you are guilty of this offense, the prosecutor must prove that you

  1. engaged in at least one of the specific acts mentioned above (or attempted or offered to do so),
  2. knew of the drug's presence and nature as a controlled substance, and
  3. transported, sold, provided, etc. enough meth (or other prohibited drug) so that it could be used as a drug.9

And...just like the possession offenses described above...you don't have to hold or touch the drugs personally in order to be convicted of this offense.  As long as you have the right to control the methamphetamines, you may be guilty of this crime.  That means that even if you use another person to transport or sell the drugs for you, you could still be convicted if you are the one who is in control of the drugs / operation.

4.1. Legal defenses

Although these defenses will also vary quite a bit...depending on the exact circumstances of your case...those mentioned above may apply to a sales /transporting charge as well.  A couple of others that are common include

  • entrapment (that is, you only sold, transported, provided, etc. the meth because you were coerced into doing so by an undercover police officer),10 and
  • lack of intent (if, for example, you didn't actually intend to offer to engage in any of those acts...and your intentions were misunderstood...you may not be guilty of this offense).
5. Penalties, Punishment and Sentencing

Health and Safety Code 11377 HS California's law against possession of methamphetamines is what is known as a wobbler.  A "wobbler" is a crime that the prosecution may choose to file as either a misdemeanor or a felony, depending on

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

If convicted of this offense as a misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine.  If convicted of this offense as a felony, you face 16 months, or two, or three years in the California state prison and a maximum $10,000 fine.11

Both Health and Safety Code sections 11378 and 11379 HS are straight felonies.  A "possession for sales" conviction subjects you to 16 months, or two, or three years in prison and a maximum $10,000 fine.12

A "sales/transportation" conviction subjects you to two, three, or four years in prison and the same fine.  If, however, you are convicted of transporting meth across more than two counties, your prison sentence increases to three, six, or nine years.13

And if you are a legal immigrant or legal alien, a conviction for any of these drug crimes could additionally lead to deportation.14 For more information about how California drug offenses affect aliens, please review our article on California Crimes that Lead to Deportation.

5.1. Aggravating factors

If the weight of the meth that you are convicted of possessing exceeds one kilogram, you face an additional three to fifteen years in prison.15

Additionally, if you violate California's laws against

  1. possessing or purchasing meth for sale, or
  2. selling or transporting methamphetamines,

and the illegal activity took place upon the grounds of.or within 1,000 feet of.a

  • drug treatment center,
  • "detox" facility or
  • homeless shelter,

you face an additional one year in the state prison regardless of the amount of the meth that you possessed or sold.16

Similarly, if a minor.that is, a person under 18.either helps you commit the crime or is the buyer in your methamphetamine sale, you face an additional three, six or nine-year prison sentence.17 And.if this is the case.you may face additional charges under Penal Code 272 PC California's contributing to the delinquency of a minor law.18

5.2. Drug diversion

If you are convicted of simple (that is, "personal") possession of methamphetamines (or one of the other controlled substances prohibited under Health and Safety 11377 HS), you may qualify for drug diversion.  This is the case whether you are originally charged with personal possession or whether your California criminal defense lawyer negotiates a reduced plea to this charge from one of the more serious charges involving sales / transportation.

"Drug diversion" is an alternative sentencing option that allows a drug abuser to receive drug treatment in lieu of a jail or prison sentence.  California's drug diversion programs include

The best part of drug diversion is that if you successfully complete the program, your drug charges will likely be dismissed.  However, drug diversion is not offered to everyone and, in fact, has a number of limitations.21 Consult with an experienced California drug crime defense attorney to find out if you qualify for this type of alternative sentencing.

6. Related Offenses

There are a number of offenses that are closely related to California's laws regarding the possession, sales and transportation of methamphetamines.  Depending on the controlled substances involved, these may be charged in connection with or in lieu of Health and Safety Code sections 11377, 11378 and 11379 HS.

Examples include (but are not limited to):

6.1. Health and Safety Code 11350 HS -- possession of a controlled substance

Health and Safety Code 11350 HS California's law against possession of a controlled substance is almost identical to HS 11377, but there are two major differences:

The first is that HS 11350 applies to a wider variety of controlled substances.  Some of these include (but are not limited to):

The second difference is that HS 11350 is a straight felony, not a wobbler.  If convicted under Health and Safety Code 11350, you face up to three years in the state prison and a maximum $10,000 fine.22

6.2. Health and Safety Code 11351 HS -- possession of a controlled substance for sale

Health and Safety Code 11351 HS California's law against possessing a controlled substance for sale is HS 11378's counterpart for other controlled substances, such as those listed above under Health and Safety Code 11350 HS.

Considered more serious than Health and Safety 11378 HS, this felony offense subjects you to a maximum four-year state prison sentence (instead of the three-year maximum sentence imposed in connection with 11378 HS.23

6.3. Health and Safety Code 11352 HS -- transporting or selling a controlled substance

In the same fashion, Health and Safety Code 11352 HS California's law against transporting or selling controlled substances mimics HS 11379 except that it applies to a broader number of controlled substances.

And again, this offense is more serious than its meth counterpart, subjecting you to five years in the state prison and up to nine years if you move the drugs across more than two county lines.24

6.4. Driving under the influence of meth

Finally, if you are caught driving under the influence of meth (or any other drug)...whether you additionally possess the drug or not...prosecutors could charge you with driving under the influence of drugs ("DUID").25

And although driving under the influence of drugs is more difficult to prove than driving under the influence of alcohol, the penalties are the same.  A typical "first offense" subjects you to

  • up to one-year in a county jail,
  • a maximum $390 fine before penalty assessments,
  • a court-imposed driver's license restriction for a minimum of six months, and
  • a minimum three-month drug education class.26

6.5. Health and Safety Code 11550 HS -- being under the influence of a controlled substance

Important to note is the fact that if you are found to be under the influence of certain controlled substances drugs (whether you are driving or not), prosecutors could additionally charge you with Health and Safety Code 11550 HS California's "under the influence of a controlled substance law".

The drugs addressed in this law include controlled substances that are also covered by Health and Safety Code 11377 such as

  • meth,
  • GHB, and
  • PCP.

A conviction for this misdemeanor drug offense subjects you to a minimum 90 days jail.  However, eligible defendants may be able to participate in a drug diversion program instead.27

6.6 Health & Safety Code 11379.6 - Manufacturing a controlled substance

Health & Safety Code 11379.6 (Manufacturing a controlled substance) makes it a felony to manufacture, compound, produce, derive or process an illegal controlled substance. Methamphetamine is one of the few major street drugs derived from local ingredients and "cooked" in underground meth labs. Consequently, a good share of the prosecutions under this section tend to be for manufacturing meth.

A conviction for HS 11379.6 subjects one to up to seven years in state prison. The sentence can be much longer is large quantities are being produced, children are involved or nearby, someone is injured or killed, or the defendant already has a record of drug conviction.

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

If you or loved one is charged with Health & Safety Code 11377 11378 & 11379 HS methamphetamines 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 possession of methamphetamine laws.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.28

Legal References:

1Our California criminal 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.

2University of Arizona -- MethOIDE

3Health 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 [methamphetamines fall under 11055(d)(2)], 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.")

4California Jury Instructions, Criminal.  CALJIC 12.00 - Possession of methamphetamines.  ("[Defendant is accused in [Count[s] ] of having committed the crime of illegal possession of a controlled substance, a violation of section of the Health and Safety Code.] Every person who possesses __________, a controlled substance, is guilty of a violation of Health and Safety Code section , a crime. There are two kinds of possession: actual possession and constructive possession. "Actual possession" requires that a person knowingly exercise direct physical control over a thing. "Constructive possession" does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. [One person may have possession alone, or two or more persons together may share actual or constructive possession.] In order to prove this crime, each of the following elements must be proved: 1 A person exercised control over or the right to control an amount of __________, a controlled substance; 2 That person knew of its presence; 3 That person knew of its nature as a controlled substance; and 4 The substance was in an amount sufficient to be used as a controlled substance.")

See also 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.")  Although this case deals with PCP, the legal holding applies equally to a case involving possession of methamphetamines.

See also 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.")

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.")

5See Health and Safety Code 11377 HS, unauthorized possession, endnote 3, above.  The drugs listed in this article are all contained in the subsections referred to under this law.

6California 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.")

See also CALJIC 12.31 -- 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.")

7Riverside criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients throughout the Inland Empire including San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.

8California 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 [such as methamphetamines] 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.")

9CALJIC 12.02 - Transporting, selling, furnishing methamphetamines.  ("(Health and Safety Code � 11352 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.")

See also CALJIC 12.03 Offering to transport, sell, furnish methamphetamines.  ("(Health and Safety Code � 11352 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.")

10People 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.")

11See Health and Safety Code 11377 HS California's law against possession of methamphetamines, endnote 3, above.

See also California 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.")

See also California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment.  ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")

12California Health and Safety Code 11378 HS - Possession of methamphetamines for sale; punishment, endnote 6, above.

13California Health and Safety Code 11379 HS -- Transportation, sale, furnishing, etc. of methamphetamines; punishment, endnote 8, above.

148 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 possession of methamphetamines is a crime involving a controlled substance, it is a California crime that could lead to deportation.

15California Health and Safety Code 11370.4 HS -- Convictions under specified sections with respect to Methamphetamines.  ("(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.")

16California 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, 11353, 11354, 11378, 11379, 11379.6, and 11380. It does not include simple possession or drug use.")

17California 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.")

18California 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 fine and imprisonment in a county jail, or may be released on probation for a period not exceeding five years.

19California Penal Code 1210.1 PC (also known as Proposition 36) -- Possession of Controlled Substances; Probation; Exceptions.  ("(a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense [such as possession of methamphetamines] shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court shall impose appropriate drug testing as a condition of probation. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation. Aside from the limitations imposed in this subdivision, the trial court is not otherwise limited in the type of probation conditions it may impose. Probation shall be imposed by suspending the imposition of sentence. No person shall be denied the opportunity to benefit from the provisions of the Substance Abuse and Crime Prevention Act of 2000 based solely upon evidence of a co-occurring psychiatric or developmental disorder. To the greatest extent possible, any person who is convicted of, and placed on probation pursuant to this section for a nonviolent drug possession offense shall be monitored by the court through the use of a dedicated court calendar and the incorporation of a collaborative court model of oversight that includes close collaboration with treatment providers and probation, drug testing commensurate with treatment needs, and supervision of progress through review hearings. In addition to any fine assessed under other provisions of law, the trial judge may require any person convicted of a nonviolent drug possession offense who is reasonably able to do so to contribute to the cost of his or her own placement in a drug treatment program. (b) Subdivision (a) shall not apply to any of the following: (1) Any defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person. (2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony. (3) Any defendant who, while armed with a deadly weapon, with the intent to use the same as a deadly weapon, unlawfully possesses or is under the influence of any controlled substance identified in Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code. (4) Any defendant who refuses drug treatment as a condition of probation. (5) Any defendant who has two separate convictions for nonviolent drug possession offenses, has participated in two separate courses of drug treatment pursuant to subdivision (a), and is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment, as defined in subdivision (b) of Section 1210. Notwithstanding any other provision of law, the trial court shall sentence that defendant to 30 days in jail. (c)(1) Any defendant who has previously been convicted of at least three non-drug-related felonies for which the defendant has served three separate prison terms within the meaning of subdivision (b) of Section 667.5 shall be presumed eligible for treatment under subdivision (a). The court may exclude such a defendant from treatment under subdivision (a) where the court, pursuant to the motion of the prosecutor or its own motion, finds that the defendant poses a present danger to the safety of others and would not benefit from a drug treatment program. The court shall, on the record, state its findings, the reasons for those findings. (2) Any defendant who has previously been convicted of a misdemeanor or felony at least five times within the prior 30 months shall be presumed to be eligible for treatment under subdivision (a). The court may exclude such a defendant from treatment under subdivision (a) if the court, pursuant to the motion of the prosecutor, or on its own motion, finds that the defendant poses a present danger to the safety of others or would not benefit from a drug treatment program. The court shall, on the record, state its findings and the reasons for those findings. (d) Within seven days of an order imposing probation under subdivision (a), the probation department shall notify the drug treatment provider designated to provide drug treatment under subdivision (a). Within 30 days of receiving that notice, the treatment provider shall prepare a treatment plan and forward it to the probation department for distribution to the court and counsel. The treatment provider shall provide to the probation department standardized treatment progress reports, with minimum data elements as determined by the department, including all drug testing results. At a minimum, the reports shall be provided to the court every 90 days, or more frequently, as the court directs. (1) If at any point during the course of drug treatment the treatment provider notifies the probation department and the court that the defendant is unamenable to the drug treatment being provided, but may be amenable to other drug treatments or related programs, the probation department may move the court to modify the terms of probation, or on its own motion, the court may modify the terms of probation after a hearing to ensure that the defendant receives the alternative drug treatment or program. (2) If at any point during the course of drug treatment the treatment provider notifies the probation department and the court that the defendant is unamenable to the drug treatment provided and all other forms of drug treatment programs pursuant to subdivision (b) of Section 1210, the probation department may move to revoke probation. At the revocation hearing, if it is proved that the defendant is unamenable to all drug treatment programs pursuant to subdivision (b) of Section 1210, the court may revoke probation. (3) Drug treatment services provided by subdivision (a) as a required condition of probation may not exceed 12 months, unless the court makes a finding supported by the record, that the continuation of treatment services beyond 12 months is necessary for drug treatment to be successful. If such a finding is made, the court may order up to two six-month extensions of treatment services. The provision of treatment services under the Substance Abuse and Crime Prevention Act of 2000 shall not exceed 24 months. (e)(1) At any time after completion of drug treatment and the terms of probation, the court shall conduct a hearing, and if the court finds that the defendant successfully completed drug treatment, and substantially complied with the conditions of probation, including refraining from the use of drugs after the completion of treatment, the conviction on which the probation was based shall be set aside and the court shall dismiss the indictment, complaint, or information against the defendant. In addition, except as provided in paragraphs (2) and (3), both the arrest and the conviction shall be deemed never to have occurred. The defendant may additionally petition the court for a dismissal of charges at any time after completion of the prescribed course of drug treatment. Except as provided in paragraph (2) or (3), the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted. (2) Dismissal of an indictment, complaint, or information pursuant to paragraph (1) does not permit a person to own, possess, or have in his or her custody or control any firearm capable of being concealed upon the person or prevent his or her conviction under Section 29800. (3) Except as provided below, after an indictment, complaint, or information is dismissed pursuant to paragraph (1), the defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or convicted for the offense. Except as provided below, a record pertaining to an arrest or conviction resulting in successful completion of a drug treatment program under this section may not, without the defendant's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. Regardless of his or her successful completion of drug treatment, the arrest and conviction on which the probation was based  [in this case, on a possession of methamphetamine charge] may be recorded by the Department of Justice and disclosed in response to any peace officer application request or any law enforcement inquiry. Dismissal of an information, complaint, or indictment under this section does not relieve a defendant of the obligation to disclose the arrest and conviction in response to any direct question contained in any questionnaire or application for public office, for a position as a peace officer as defined in Section 830, for licensure by any state or local agency, for contracting with the California State Lottery, or for purposes of serving on a jury. (f)(1) If probation is revoked pursuant to the provisions of this subdivision, the defendant may be incarcerated pursuant to otherwise applicable law without regard to the provisions of this section. The court may modify or revoke probation if the alleged violation is proved. (2) If a defendant receives probation under subdivision (a), and violates that probation either by committing an offense that is not a nonviolent drug possession offense, or by violating a non-drug-related condition of probation, and the state moves to revoke probation, the court may remand the defendant for a period not exceeding 30 days during which time the court may receive input from treatment, probation, the state, and the defendant, and the court may conduct further hearings as it deems appropriate to determine whether or not probation should be reinstated under this section. If the court reinstates the defendant on probation, the court may modify the treatment plan and any other terms of probation, and continue the defendant in a treatment program under the Substance Abuse and Crime Prevention Act of 2000. If the court reinstates the defendant on probation, the court may, after receiving input from the treatment provider and probation, if available, intensify or alter the treatment plan under subdivision (a), and impose sanctions, including jail sanctions not exceeding 30 days, a tool to enhance treatment compliance. (3)(A) If a defendant receives probation under subdivision (a), and violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. If the court does not revoke probation, it may intensify or alter the drug treatment plan and in addition, if the violation does not involve the recent use of drugs as a circumstance of the violation, including, but not limited to, violations relating to failure to appear at treatment or court, noncompliance with treatment, and failure to report for drug testing, the court may impose sanctions including jail sanctions that may not exceed 48 hours of continuous custody as a tool to enhance treatment compliance and impose other changes in the terms and conditions of probation. The court shall consider, among other factors, the seriousness of the violation, previous treatment compliance, employment, education, vocational training, medical conditions, medical treatment, including narcotics replacement treatment, and including the opinion of the defendant's licensed and treating physician if immediately available and presented at the hearing, child support obligations, and family responsibilities. The court shall consider additional conditions of probation, which may include, but are not limited to, community service and supervised work programs. If one of the circumstances of the violation involves recent drug use, as well as other circumstances of violation, and the circumstance of recent drug use is demonstrated to the court by satisfactory evidence and a finding made on the record, the court may, after receiving input from treatment and probation, if available, direct the defendant to enter a licensed detoxification or residential treatment facility, and if there is no bed immediately available in such a facility, the court may order that the defendant be confined in a county jail for detoxification purposes only, if the jail offers detoxification services, for a period not to exceed 10 days. The detoxification services must provide narcotic replacement therapy for those defendants presently actually receiving narcotic replacement therapy. (B) If a defendant receives probation under subdivision (a), and for the second time violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to drug treatment. In determining whether a defendant is unamenable to drug treatment, the court may consider, to the extent relevant, whether the defendant (i) has committed a serious violation of rules at the drug treatment program, (ii) has repeatedly committed violations of program rules that inhibit the defendant's ability to function in the program, or (iii) has continually refused to participate in the program or asked to be removed from the program. If the court does not revoke probation, it may intensify or alter the drug treatment plan, and may, in addition, if the violation does not involve the recent use of drugs as a circumstance of the violation, including, but not limited to, violations relating to failure to appear at treatment or court, noncompliance with treatment, and failure to report for drug testing, impose sanctions including jail sanctions that may not exceed 120 hours of continuous custody as a tool to enhance treatment compliance and impose other changes in the terms and conditions of probation. The court shall consider, among other factors, the seriousness of the violation, previous treatment compliance, employment, education, vocational training, medical conditions, medical treatment, including narcotics replacement treatment, and including the opinion of the defendant's licensed and treating physician if immediately available and presented at the hearing, child support obligations, and family responsibilities. The court shall consider additional conditions of probation, which may include, but are not limited to, community service and supervised work programs. If one of the circumstances of the violation involves recent drug use, as well as other circumstances of violation, and the circumstance of recent drug use is demonstrated to the court by satisfactory evidence and a finding made on the record, the court may, after receiving input from treatment and probation, if available, direct the defendant to enter a licensed detoxification or residential treatment facility, and if there is no bed immediately available in the facility, the court may order that the defendant be confined in a county jail for detoxification purposes only, if the jail offers detoxification services, for a period not to exceed 10 days. Detoxification services must provide narcotic replacement therapy for those defendants presently actually receiving narcotic replacement therapy. (C) If a defendant receives probation under subdivision (a), and for the third or subsequent time violates that probation either by committing a nonviolent drug possession offense, or by violating a drug-related condition of probation, and the state moves for a third or subsequent time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, the defendant is not eligible for continued probation under subdivision (a) unless the court determines that the defendant is not a danger to the community and would benefit from further treatment under subdivision (a). The court may then either intensify or alter the treatment plan under subdivision (a) or transfer the defendant to a highly structured drug court. If the court continues the defendant in treatment under subdivision (a), or drug court, the court may impose appropriate sanctions including jail sanctions as the court deems appropriate. (D) If a defendant on probation at the effective date of this act for a nonviolent drug possession offense violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. If the court does not revoke probation, it may modify or alter the treatment plan, and in addition, if the violation does not involve the recent use of drugs as a circumstance of the violation, including, but not limited to, violations relating to failure to appear at treatment or court, noncompliance with treatment, and failure to report for drug testing, the court may impose sanctions including jail sanctions that may not exceed 48 hours of continuous custody as a tool to enhance treatment compliance and impose other changes in the terms and conditions of probation. The court shall consider, among other factors, the seriousness of the violation, previous treatment compliance, employment, education, vocational training, medical conditions, medical treatment, including narcotics replacement treatment, and including the opinion of the defendant's licensed and treating physician if immediately available and presented at the hearing, child support obligations, and family responsibilities. The court shall consider additional conditions of probation, which may include, but are not limited to, community service and supervised work programs. If one of the circumstances of the violation involves recent drug use, as well as other circumstances of violation, and the circumstance of recent drug use is demonstrated to the court by satisfactory evidence and a finding made on the record, the court may, after receiving input from treatment and probation, if available, direct the defendant to enter a licensed detoxification or residential treatment facility, and if there is no bed immediately available in such a facility, the court may order that the defendant be confined in a county jail for detoxification purposes only, if the jail offers detoxification services, for a period not to exceed 10 days. The detoxification services must provide narcotic replacement therapy for those defendants presently actually receiving narcotic replacement therapy. (E) If a defendant on probation at the effective date of this act for a nonviolent drug possession offense violates that probation a second time either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves for a second time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or that the defendant is unamenable to drug treatment. If the court does not revoke probation, it may modify or alter the treatment plan, and in addition, if the violation does not involve the recent use of drugs as a circumstance of the violation, including, but not limited to, violations relating to failure to appear at treatment or court, noncompliance with treatment, and failure to report for drug testing, the court may impose sanctions including jail sanctions that may not exceed 120 hours of continuous custody as a tool to enhance treatment compliance and impose other changes in the terms and conditions of probation. The court shall consider, among other factors, the seriousness of the violation, previous treatment compliance, employment, education, vocational training, medical conditions, medical treatment including narcotics replacement treatment, and including the opinion of the defendant's licensed and treating physician if immediately available and presented at the hearing, child support obligations, and family responsibilities. The court shall consider additional conditions of probation, which may include, but are not limited to, community service and supervised work programs. If one of the circumstances of the violation involves recent drug use, as well as other circumstances of violation, and the circumstance of recent drug use is demonstrated to the court by satisfactory evidence and a finding made on the record, the court may, after receiving input from treatment and probation, if available, direct the defendant to enter a licensed detoxification or residential treatment facility, and if there is no bed immediately available in such a facility, the court may order that the defendant be confined in a county jail for detoxification purposes only, if the jail offers detoxification services, for a period not to exceed 10 days. The detoxification services must provide narcotic replacement therapy for those defendants presently actually receiving narcotic replacement therapy. (F) If a defendant on probation at the effective date of this act for a nonviolent drug offense violates that probation a third or subsequent time either by committing a nonviolent drug possession offense, or by violating a drug-related condition of probation, and the state moves for a third or subsequent time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, the defendant is not eligible for continued probation under subdivision (a), unless the court determines that the defendant is not a danger to the community and would benefit from further treatment under subdivision (a). The court may then either intensify or alter the treatment plan under subdivision (a) or transfer the defendant to a highly structured drug court. If the court continues the defendant in treatment under subdivision (a), or drug court, the court may impose appropriate sanctions including jail sanctions. (g) The term "drug-related condition of probation" shall include a probationer's specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling.")

20California 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 [California's possession of methamphetamines law], 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, 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.")

21See endnotes 19 and 20, above.

22California Health and Safety Code 11350 HS -- Possession of designated controlled substances; punishment and fine.  ("(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison. (b) Except as otherwise provided in this division, every person who possesses any controlled substance specified in subdivision (e) of Section 11054 shall be punished by imprisonment in the county jail for not more than one year or in the state prison. (c) Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a) or (b), the judge may, in addition to any punishment provided for pursuant to subdivision (a) or (b), assess against that person a fine not to exceed seventy dollars ($70) with 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. (d) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered: (1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service. (2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service. (3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine.")

23California 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.")

24California Health and Safety Code 11352 HS -- 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.")

25California Vehicle Code 23152(a) VC -- driving under the influence.  ("(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.") California Vehicle Code 23152(a) VC prohibits driving under the influence of drugs. "Drugs" means any substance or combination of substances, other than alcohol, which could affect your central nervous system, brain, or muscles.  You are driving under the influence of drugs (DUID) if "your physical or mental abilities are impaired to such a degree that you no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances".  And it is irrelevant whether the drugs were legal or illegal, prescription or over-the-counter. The only issue in a California DUID case is whether the drugs affected your ability to safely drive your car.

26California Vehicle Code 23536 -- DUI penalties. Conviction of first violation of � 23152; punishment. ("(a) If a person is convicted of a first violation of Vehicle Code 23152 [whether it is of driving under the influence of alcohol or drugs], that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, nor more than six months, and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1,000)...(c) The person's privilege to operate a motor vehicle shall be suspended by the department under paragraph (1) of subdivision (a) of Section 13352 or Section 13352.1. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550.")

See also California Vehicle Code 23538 -- DUI sentencing. Conditions of probation for first time offense. ("(a)(1) If the court grants probation to person punished under Section 23536, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court...may [italics added] also impose, as a condition of probation, that the person be confined in a county jail for at least 48 hours, but not more than six months. (b) In any county where the board of supervisors has approved, and the State Department of Alcohol and Drug Programs has licensed, a program or programs described in Section 11837.3 of the Health and Safety Code, the court shall also impose as a condition of probation that the driver shall enroll and participate in, and successfully complete a driving-under-the-influence program, licensed pursuant to Section 11836 of the Health and Safety Code, in the driver's county of residence or employment, as designated by the court.")

See also California Vehicle Code 23600 -- DUI penalties. Conviction and pronouncement of sentence for violations of Vehicle Code 23152 or 23153; probation; minimum confinement or fine; violation of probation. ("(b) If any person is convicted of a violation of VC 23152 or VC 23153 and is granted probation, the terms and conditions of probation shall include, but not be limited to, the following: (1) Notwithstanding Section 1203a of the Penal Code, a period of probation not less than three nor more than five years.")

See also Vehicle Code 23536, endnote 6 above, subdivision "d". ("(d) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (1) of subdivision (a) of Section 13352 or Section 13352.1, the court may disallow the issuance of a restricted driver's license required under Section 13352.4.")

27California Health and Safety Code 11550 HS -- Under the influence of a controlled substance.  ("(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.")

28Please 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.

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.

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.