Possession for Sales
Possession for Sales
Possession for sales of illegal drugs may be classified as a misdemeanor, felony, or "wobbler." A misdemeanor is a crime punishable by a maximum of one year imprisonment in county jail. A felony is punishable by imprisonment in the state prison. Either of these classifications may include fines. A felony term in state prison may have a range of years for sentencing purposes. For example, there may be the option of a 2, 3, or 4 year term. This is referred to as the low, mid, or high term. The mid term is generally given, unless there are factors which cause the judge to give the lower or higher sentences. Aggravating factors are also referred to as "enhancements." It is important to note that there are 3 crimes that serve as "enhancement crimes." The sentence for these "enhancement crimes" is double or triple what it might otherwise be for distributing that particular amount and type of drug under other circumstances. The 3 enhancement crimes are:
1. Distributing controlled substances to people who are under 21 years of age.
2. Distributing controlled substances near a school.
3. Causing people under the age of 18 to violate drug laws.
A "wobbler" is a crime punishable as either a misdemeanor or felony. It is up to the prosecutor to charge the offense one way or the other, and if convicted, up to the judge to sentence the case either way. For example, a conviction on a felony wobbler may be sentenced as a misdemeanor, which is allowable under the penal code.
Marijuana
The California Health & Safety Code 11018 defines what marijuana is:
"Marijuana means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination."
Possession of marijuana is a misdemeanor under California Health and Safety Code Section 11357. Possession of one ounce (28.5 grams) or less is punishable by a maximum $100 fine; jail time is possible for larger amounts or for hashish, which is an optional felony wobbler. Giving away less than 28.5 grams is a misdemeanor and is punishable by a fine of up to $100. Selling marijuana in any amount is punishable by 2, 3 or 4 years in the state prison. Sale of marijuana to a minor is punishable by 3, 4, or 5 years in prison.
Possession offenders can avoid conviction by making a guilty plea under Penal Code 1000, in which case their charges are dismissed upon successful completion of a diversion program. Possession offenses are expunged from the record after two years under Health and Safety Code Sections 11361.5 and 11361.7.
Cocaine
Cocaine is a drug extracted from the leaves of the coca plant. It is a potent brain stimulant and one of the most powerfully addictive drugs. It is classified as a Schedule II drug.
It is a felony to possess cocaine for sale. Anyone who is convicted of possessing cocaine for sale may be punished by imprisonment in the state prison for 2, 3, or 4 years.
It is a felony to transport, import into California, sell, furnish, administer, or give away, or offer to transport, import into this state, sell, furnish, administer, or give away, or attempts to import or transport cocaine into California. This offense is punishable by imprisonment in the state prison for 3, 4, or 5 years. Notwithstanding these penalty provisions, any person who transports cocaine for sale within California from one county to another noncontiguous county shall be punished by imprisonment in the state prison for 3, 6, or 9 years.
Cocaine Base or Crack Cocaine
Crack is cocaine that has been processed from cocaine hydrochloride to a free base for smoking. Crack cocaine is processed with ammonia or sodium bicarbonate (baking soda) and water. It is then heated to remove the hydrochloride producing a form of cocaine that can be smoked. The term "crack" refers to the crackling sound heard when it is heated.
It is a felony to possess cocaine base for sale or purchase for the purposes of sale. A conviction for this offense is punishable by imprisonment in the state prison for a period of 3, 4, or 5 years.
Methamphetamine
Methamphetamine is an addictive stimulant drug that strongly activates certain systems in the brain. Methamphetamine is chemically related to amphetamine, but the central nervous system effects of methamphetamine are greater. Methamphetamine is made in illegal laboratories and has a high potential for abuse and addiction. Street methamphetamine is referred to by many names, such as "speed," "meth," and "chalk." Methamphetamine hydrochloride, clear chunky crystals resembling ice, which can be inhaled by smoking, is referred to as "ice," "crystal," "glass," and "tina." .
Possession of methamphetamine for sale is punishable by imprisonment in the state prison for 3, 4, or 5 years.
Heroin
Heroin is processed from morphine, a naturally occurring substance extracted from the seedpod of the Asian poppy plant. Heroin usually appears as a white or brown powder. Street names for heroin include "smack," "H," "skag," and "junk." Other names may refer to types of heroin produced in a specific geographical area, such as "Mexican black tar."
Any person who transports, imports into California, sells, furnishes, administers, gives away, or offers to transport heroin, or import into this state is punished by imprisonment in the state prison for 3, 4, or 5 years.
Any person who transports heroin for sale within California, from one county to another noncontiguous county shall be punished by imprisonment in the state prison for 3, 6, or 9 years.
California Health and Safety Code Section 11352.5 reads:
"The court shall impose a fine not exceeding fifty thousand dollars ($50,000), in the absence of a finding that the defendant would be incapable of paying such a fine, in addition to any term of imprisonment provided by law for any of the following persons:
(1) Any person who is convicted of violating Section 11351 of the Health and Safety Code by possessing for sale 14.25 grams or more of a substance containing heroin.
(2) Any person who is convicted of violating Section 11352 of the Health and Safety Code by selling or offering to sell 14.25 grams or more of a substance containing heroin.
(3) Any person convicted of violating Section 11351 of the Health and Safety Code by possessing heroin for sale or convicted of violating Section 11352 of the Health and Safety Code by selling or offering to sell heroin, and who has one or more prior convictions for violating Section 11351 or Section 11352 of the Health and Safety Code."
Ecstasy
Ecstasy is an illegal substance and so manufacturers are not subject to regulation and quality control. The only way to find out exactly what is in a particular pill, and in what quantity, is to have it laboratory tested. In the 1980's the drug MDMA (3,4-Methylenedioxy-N-Methylamphetamine) began to be known as 'Ecstasy' (e) and it remains the drug that ecstasy-users hope and expect to get when they purchase a pill or powder sold as e. Pills sold as ecstasy might contain other psychoactive substances, commonly amphetamine (speed). LSD (acid) has been found on occasions in a small number of pills
Any person who possesses Ecstasy for sale shall be punished by imprisonment in the state prison. 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 shall be punished by imprisonment in the state prison for a period of 2, 3, or 4 years.
Any person who transports Ecstasy for sale within California, from one county to another
noncontiguous county shall be punished by imprisonment in the state prison for 3, 6, or 9 years.
PCP
Phencyclidine, commonly known as PCP, is classified as a hallucinogen and has many of the same effects as LSD, but can be much more dangerous.
In its original state, PCP is a white crystalline powder. PCP is available in tablet, liquid, and powder forms and is either ingested orally or smoked by applying the liquid form to tobacco or marijuana cigarettes or by lacing these and other cigarettes, sometimes containing herbs such as mint or parsley, with PCP powder
Every person who possesses PCP for sale or any precursor of PCP shall be punished by imprisonment in the state prison for a period of 3, 4, or 5 years.
Any person who transports, imports into California, sells, furnishes, administers, gives away, or offers to transport PCP or import into this state is punished by imprisonment in the state prison for 3, 4, or 5 years.
Any person who transports PCP for sale within California, from one county to another noncontiguous county shall be punished by imprisonment in the state prison for 3, 6, or 9 years.
Possession for Personal Use
Possession for Personal Use
Possession of drugs for personal use requires the following knowledge:
Knowledge of the presence of the controlled substance
Knowledge that the substance is in fact a controlled substance. It is not necessary that the defendant know the chemical name or the precise chemical makeup of the substance.
Possession itself may be either actual or constructive. Actual possession means that person knowingly exercises direct physical control over the controlled substance. On the other hand, constructive possession does not require actual possession but does require that a person either knowingly or have the right to exercise control over the controlled substance, either directly or through another person. Constructive possession can be found even when the right of dominion and control over the place is shared with another.
The California criminal jury instructions, known as CALJIC define the elements that must be proved by the prosecutor in order to convict the defendant for possession of an unlawful drug. CALJIC 12.00 says in relevant part:
"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."
The punishment for possession of a controlled substance is punishment in the county jail up to one year or in the state prison. A first offense may have an additional fine of at least $1000 or community service. A second or subsequent offense is punished by a fine of at least $2000 or community service.
The punishment for possession of marijuana is imprisonment in the county jail up to one year .and/or by a fine up to $500 or else imprisonment in the state prison. If the amount of marijuana is less than 28.5 grams, then it is a misdemeanor, punishable by imprisonment in the county jail up to six months, and/or a fine up to $100.
Proposition 36 is a ballot initiative that sends drug offenders to treatment programs instead of prison. Proposition 36 generally applies to those people with new convictions for drug offenses who qualify for treatment provided that they are not convicted of sale or manufacture or any non-drug crimes at the same time. Offenders are excluded if they have a prior conviction for a serious or violent felony (a "strike"), unless they have served their prison time and have been out of prison for five years with no felony convictions or misdemeanor convictions involving the threat of violence. Finally, individual offenders may "opt-out" of treatment by formally refusing it, in which case they face sentencing under pre-existing law.
Diversion is a program for first-time offenders which allow the offender to avoid having a drug conviction on their record if they complete the diversion program. The accused is required to enter a plea of guilty to the drug charge, but the accused is not sentenced. Legally, a case is not final until the defendant is sentenced. The accused must then go through a series of classes undergoing random drug testing. However, if the accused tests "dirty," the defendant is deemed to have violated the terms of the diversion. This allows the court to sentence the defendant on the original guilty plea.
Marijuana Cultivation
Marijuana Cultivation
It is illegal to grow, or cultivate, marijuana. The California criminal jury instructions gives guidance to the factors that the prosecution must prove in order to successfully convict someone of this offense.
"Every person who plants/cultivates/harvests/dries/ or processes any marijuana or any part thereof is guilty of a violation of Heath and Safety Code Section 11358, a crime.
The word "harvesting" is defined as the gathering of crops of any kind.
The verb "to harvest" means:
a) to gather in a crop: reap…'
b) to gather a natural product as if by harvesting
In order to prove this crime, each of the following elements must be proved:
1. A person [planted] a marijuana plant; and
2. That person knew it was a marijuana plant or some part thereof." CALJIC 12.24
The operative law that results in the above jury instruction is California Health and Safety Code Section 11358 which reads:
"Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment in the state prison."
Medical Marijuana
Under federal law, sale, cultivation and possession of marijuana remain strictly illegal. However, the California Compassionate Use Act of 1996, known as Prop. 215 exempts patients and their primary caregivers from criminal prosecution for personal possession and cultivation of marijuana, but NOT for distribution or sale to others.
Medical cannabis may be legally used & cultivated by qualified patients in California under Prop. 215, provided they have a recommendation from a licensed physician.
State law SB 420 establishes Prop. 215 guidelines for possession and cultivation. State limits are set at 6 mature or 12 immature plants and 8 ounces marijuana, except where a physician declares more is needed, or where local governments authorize more.
