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California Health and Safety Code § [Section] 11352(a) – Sales and Transportation of Controlled Substance

California Health and Safety Code § [Section] 11352(a) – Sale, Transportation for Sale of Controlled Substance

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Health and Safety Code [HSC] §11352(a) - Sale, Transportation for Sale, etc., of Controlled Substance –HSC §11352(a) is violated when anyone “transports, imports into this state, sells, furnishes, administers, gives away, or offers to” do any of these, with a controlled substance listed in the statute. The statute covers all three drug schedules (Sections 11054, 11055, and 11056). For purposes of the law, “transport” means “to transport for sale.”[1]

If you're convicted of Sale, Transportation for Sale, etc., of Controlled Substance, you face a term of as many as five years in a state prison, a fine of up to $20,000, or both imprisonment and a fine. If   aggravating facts are present in your case, however, your sentence can be lengthened by decades and the fines levied against you can increase by hundreds of times.

What Does Health and Safety Code §11352(a) [Sale, Transportation for Sale, etc., of Controlled Substance] Prohibit?

In sum, to be guilty of Sale, Transportation for Sale, etc., of Controlled Substance under HSC §11352(a), the prosecution must prove that:

  • You sold or transported a controlled substance into the state; AND,
  • You knew it was present; AND,
  • You knew it was a controlled substance; AND,
  • The substance is listed in the schedules of the Health and Safety Code; OR,
  • The substance is an analog of a controlled substance; AND,
  • There was a usable amount.

Defining “Sale, Transportation for Sale, etc., of Controlled Substance” Under Health and Safety Code §11352(a)

To convict you under HSC §11352(a), the prosecution must prove the following beyond a reasonable doubt:

  • Sold, Furnished…/Controlled Substance: You sold,[2] furnished, administered,[3] gave away, transported[4] or imported a controlled substance; AND,
  • Knowledge Of Presence: You knew of the substance's presence; AND,
  • Knew…/Nature Or Character: You knew of the substance's nature or character as a controlled substance; AND,
  • Listed In The Schedules: The substance is listed in the schedules set forth in sections 11054 through 11058 of the Health and Safety Code; OR,
  • An Analog: The controlled substance was an analog of a type of controlled substance; AND,
  • A Usable Amount: The controlled substance was in a usable amount.[5]

Note: The prosecution doesn't need to prove that you “knew which specific controlled substance” you sold or transported. Furthermore, “[a] person does not have to actually hold or touch something to sell or” transport it. “It is enough if” you have “control over it or the right to control it, either personally or through another person.”[6]

Example: Victim Vincent is a successful athlete who finds that he's suffering physically as he ages. Ordinary treatments do not relieve his pain. He goes to Defendant Doctor and asks Doctor for a prescription for a strong painkiller. Doctor gives him Propofol[7] but decides that he cannot prescribe anything stronger because Vincent's injuries don't require more. However, Doctor offers to import an opiate, Fentanyl, a Schedule II drug,[8] for Vincent's private use, along with the Propofol, saying that the combination will intensify the painkilling effects of the Propofol without another prescription. Vincent gets and takes both drugs. The Fentanyl makes him very sick.[9] Doctor is arrested and charged under HSC §11352(a). Doctor says he has the right to treat his own patient and that he shouldn't be prosecuted. Should Doctor be convicted?

Conclusion: Doctor imported a Schedule II drug listed in subpart (c) of HSC §11055. Fentanyl is, as such, prohibited for sale or import without a prescription under HSC §11352(a). But Doctor had already prescribed all the painkilling medication he could when he prescribed Propofol. Having evaluated his patient, he decided he should not write a prescription for another drug. Thus providing anything more – especially prescribing any substance prohibited under a drug schedule – exceeded the privilege Doctor had to possess or import drugs in the interest of treating Vincent. Doctor would also know that the drug is usually prohibited by law, owing to his training as a physician with prescribing authority. He furnished the drug to Vincent and also would've known of its presence at the time. There was, finally, enough Fentanyl for Vincent to become sick when he used it as directed. While Doctor had the right to prescribe the Propofol, Doctor broke the law when he imported the Fentanyl for sale to Vincent. Doctor should, therefore, be convicted of violating HSC §11352(a).      

Penalties For “Sale, Transportation for Sale, etc., of Controlled Substance” Under Health and Safety Code §11352(a)

As noted previously, committing Sale, Transportation for Sale, etc., of Controlled Substance is punishable by a term of up to five (5) years in a state prison,[10] a fine of up to $20,000 (twenty-thousand dollars), or both imprisonment and a fine. Additional fines may be imposed for every offense.[11]

Remember: aggravating facts can substantially increase both sentence length and the amount in fines. If, for example, you violate Section 11352 through possession of heroin, cocaine base or cocaine, and you possess more than eighty kilograms of the substance by weight, you may face an additional twenty-five (25) years in prison[12] and a fine of as much as $8,000,000 (eight million dollars) for each offense.[13]

Recall, furthermore, that HSC §11352(a) is punished under California's “Three Strikes” regime.[14] If you receive three “strikes” on your record for committing serious or violent felonies, you will spend at least twenty-five (25) years in a state prison.[15]

 

Defenses To Sale, Transportation for Sale, etc., of Controlled Substance Under HSC §11352(a)

Five of the more common defenses against a charge of Sale, Transportation for Sale, etc., of Controlled Substance under Section 11352(a) are:

You Didn't Offer To Sell Or Transport A Controlled Substance

Example: Defendant Dee goes on a ‘juice cleanse.' She consumes nothing for a week except a mixture of lemon juice, cayenne pepper, and truffle oil in a thermos. The concoction makes a strange dark sludge. Police Officer, arresting Dee on an unrelated matter one day, examines the thermos while searching for evidence. She concludes Dee is in possession of a controlled substance. Dee insists the substance is legal but Police Officer is unpersuaded and charges Dee under §11352(a) anyway. Should Dee be convicted?      

Conclusion: Police Officer arrested Dee for being in possession of something unlawful. But, without going into the other problems of the charge (Police Officer hasn't specified an illegal substance, in other words, nor has Dee offered to sell or transport anything), Dee can prove that she didn't violate the law by showing the contents of the thermos. Once it's known the thermos contained only legal substances, it will be necessary to acquit Dee because she didn't offer to sell or transport a controlled substance.  

The Drugs Were For Your Use

Example: Police raid the home of Defendant Devlin after Ex-Roommate reports Devlin for importing drugs to sell. They search and find less than an eighth of an ounce of mescaline.[16] They search further but find no scales, no plastic bags or other containers, nor any cash or property. Devlin swears that he's not in drug sales. Police charge him under HSC §11352(a) irrespective. Should Devlin be convicted?

Conclusion: Police found that Devlin was in possession of a Schedule I substance[17] prohibited under HSC §11352(a). But Local Police found no evidence suggesting that Devlin possessed the drug for more than personal reasons. The absence of scales, money, property, or the means of bagging the mescaline, does not reasonably support believing that Devlin was involved in illegal activity. The relatively small amount, furthermore, makes it reasonable to assume that, even if Devlin arranged for transport of the mescaline, Devlin wasn't trying to sell the substance. Devlin should be acquitted because the drugs were for his use.  

You Were Entrapped

Example: Local Police suspect Defendant Don of selling controlled substances. They send Officer One undercover to offer money to Don for heroin.[18] Don refuses. Then Local Police send Officer Two, also undercover, to offer Don sexual favors in exchange for the same drug. Don is tempted but refuses. Officer Three is sent, finally, in uniform. Officer Three tells Don that he'll provide Don with protection against arrest if Don gives him heroin. Don assents this time, giving Officer Three a gram of the drug. Local Police arrest Don and charge him under HSC §11352(a). Should Don be convicted or acquitted?   

Conclusion: Don provided Officer Three with a Schedule I substance[19] prohibited under HSC §11352(a). It's also reasonable to assume that Don knew the drug's nature as a controlled substance and that he knew heroin was in his presence when he gave it to the officer. Since heroin is often sold in single grams it's also reasonable to assume that one gram is a usable amount. Local Police, however, employed tactics that exceeded their authority when they enticed Don. First they offered him money; then they offered him sex acts; then a uniformed police went as far as promising that Don would be protected from arrest if Don gave the officer a controlled substance. These efforts could reasonably be said to constitute Entrapment,[20] a defense that includes police “conduct that would make commission of [a] crime unusually attractive to a normally law-abiding person. Such conduct might include a guarantee that the act is not illegal or that the offense would go undetected[.]”[21] That Don sells drugs isn't to be considered when asking whether he is “a normally law-abiding person,”[22] but the other circumstances, such as Officer Three wearing a uniform when making an offer, are to be.[23] It isn't unreasonable that Don chose to act on Officer Three's offer, considering the extraordinary circumstances. Don should be acquitted because he was entrapped.

You Were The Victim Of Illegal Police Conduct

Example: Defendant Dell is arrested and his car is towed to Police Station. Arresting Officer worries whether the charge against Dell will be thrown out. Police perform an inventory search (an assay of the property inside the car) at the Station. Meanwhile, Arresting Officer places three small bags of cocaine under Dell's back seat, then ‘finds' the cocaine soon after, and presses charges against Dell for violating HSC §11352(a). Dell insists that the drugs aren't his and that he's being ‘framed' (having evidence used against him to make him appear guilty of a crime he didn't commit) by law enforcement. Is Dell correct?

Conclusion:  As the facts make clear, the cocaine was placed inside Dell's car. This is illegal police conduct otherwise known as ‘planting evidence.'  The purpose of this kind of unlawful effort is to construct a charge against a person where otherwise that charge would not exist. Turning to the facts, Arresting Officer, unsure of whether a different charge would stand in court, planted cocaine in Dell's car during an inventory search in order to create new charges. Thus Dell is correct; he is being ‘framed' by law enforcement. Dell should be acquitted because he is the victim of illegal police conduct.    

Your Intention Or Explanation Was Misunderstood

Example:  Defendant Dani goes to Veterinarian's office and picks up a specially formulated vial of feline morphine[24] that she uses to ease the pain of her dying cat. She's stopped by Motorcycle Officer on her way home. Motorcycle Officer sees the vial and examines it. Dani realizes that she left her paperwork at Veterinarian's office but tries to convince Motorcycle Officer that she has a prescription for the drug. Motorcycle Officer can't determine whether the vial was prescribed by a veterinarian or whether the drug is actually meant for felines. He decides to arrest Dani for violating HSC §11352(a). Is Dani guilty?           

Conclusion: Without addressing issues like whether Dani transported or sold the drug, it is clear that she didn't intend on using the drug and had a prescription for its possession. Morphine, a Schedule II drug,[25] is prohibited by HSC §11352(a). But whether the feline form is prohibited is irrelevant; Dani's intention in possessing the drug had nothing to do with taking the drug or selling it to another person. Motorcycle Officer simply failed to understand Dani's intention because Dani couldn't present paperwork necessary to prove her right to possess the drug for treatment of her cat. Dani, therefore, should be acquitted. Her intention in possessing the controlled substance was misunderstood. 

Related Offenses

Note: The crimes below are described as “related” because they're frequently charged with HSC §11352(a) and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

Included in the California Health and Safety Code are several offenses related to Sale, Transportation for Sale, etc., of Controlled Substance: Possession For Sale Of Controlled Substance (HSC §11351), Simple Possession Of A Controlled Substance (HSC §11377(a)), Possession for Sale of Controlled Substance: Persons Eligible For Sentencing Under CPC §1170(h) [HSC §11378], Sale, Transportation for Sale, etc., of Controlled Substance (HSC §11379(a)), Possession Of Imitation Controlled Substance With Intent To Distribute (HSC §109575), Offering To Sell Substitute Substance (HSC §11355), Offering To Sell Synthetic Cannabinoid Or Cannabinoid Derivative  (HSC §11357.5(a)), Possession For Sale Of Synthetic Stimulant Compound (HSC §11375.5(a)), and Peyote Cultivation (HSC §11363).     

Possession For Sale Of Controlled Substance

Possession For Sale Of Controlled Substance (HSC §11351) occurs whenever anyone possesses or purchases for sale any of the drugs listed in the statute. The statute lists “any controlled substance classified in Schedule III, IV, or V which is a narcotic drug”[26] among several prohibited substances.

If you're convicted of Possession For Sale Of Controlled Substance, the penalty for each offense may be:

  • A term of up to four (4) years in a state prison;[27] OR,
  • A fine of up to $20,000 (twenty-thousand dollars); OR,
  • Both a fine and imprisonment.[28]

Note: “Agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.”[29]  This Section is also punishable under the “Three Strikes” system.[30]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that's guaranteed.

California Criminal Jury Instructions – Possession For Sale Of Controlled Substance

To convict you under HSC §11351, the prosecution must prove the following beyond a reasonable doubt:

You unlawfully possessed a controlled substance and knew of its presence. You also knew of the substance's nature or character as a controlled substance and, when you possessed the controlled substance, you intended to sell it or that someone else sell it. The controlled substance is listed in the schedules set forth in sections 11054 through 11058 of the Health and Safety Code or it was an analog of some type of controlled substance. The controlled substance was, finally, in a usable amount.

Example:  A chemist, Defendant Douglas, likes to make Lysergic acid diethylamide (“LSD”)[31] at parties with chemicals makes himself and he brings along. He gives away the finished drug.[32] Douglas begins to earn a reputation for doing this and, eventually, Police Officer goes undercover to arrest him. Douglas, soon after, makes LSD at a party attended by Police Officer. Police Officer arrests Douglas as Douglas is handing out doses of LSD. Police Officer charges him with violating HSC §11351. Is Douglas guilty?   

Conclusion: Douglas produced and distributed a Schedule I drug.[33] He knew, presumably, that he was in unlawful possession of a controlled substance. Douglas also had the LSD in a usable quantity. Finally, as he made the drug by hand, Douglas knew of the presence of the LSD. These are elements of the charge. But Douglas gave the drug to others; he did not possess the LSD to sell or to have anyone else do so, nor did he intend on either occurring. Therefore, while Douglas can be charged with possession under Section 11352 (which criminalizes the simple act of giving away a Schedule I drug), Douglas cannot be convicted of violating HSC §11351 because he didn't possess Lysergic acid diethylamide for sale.

Simple Possession Of A Controlled Substance

Simple Possession Of A Controlled Substance (HSC §11377(a)) occurs whenever a person possesses one of the drugs listed in the statute.[34] The crime differs from Section 11351 in that, as the name suggests, mere possession of a controlled substance is made punishable under HSC §11377(a).

Since the prosecution can charge you with a Misdemeanor or a Felony, depending on the facts of your case, HSC §11377(a) is what is known as a “wobbler” offense.[35] If you're convicted of the Felony form of the crime, without enhancement, the penalty may be:

  • A term of up to three (3) years in a state prison;[36] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[37]

Note: You are “not guilty of possessing a controlled substance if you had a valid, written prescription for that substance from a physician, dentist, podiatrist, naturopathic doctor, or veterinarian licensed to practice in California.”[38] It is also possible for a sentence under this Section to be included as a “strike” under the “Three Strikes” system.

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer – and we guarantee it.

California Criminal Jury Instructions - Simple Possession Of A Controlled Substance

To convict you under HSC §11377(a), the prosecution must prove the following beyond a reasonable doubt:

You unlawfully possessed a controlled substance and knew of its presence. You also knew of the substance's nature or character as a controlled substance. The substance is listed in the schedules set forth in sections 11054 through 11058 of the Health and Safety Code or it was an analog of some type of controlled substance. The controlled substance was, finally, in a usable amount.

Example: Defendant Dana goes to Park and purchases a gram of heroin. She's arrested for an unrelated reason. Arresting Officer finds the packet containing the substance. Dana volunteers that it's heroin. But subsequent chemical testing reveals that the packet contains an over-the-counter sleeping agent mixed with baking soda. Should Dana be convicted or acquitted of violating HSC §11377(a) on these facts?  

Conclusion: Dana purchased what she thought was a gram of a Schedule I drug. She knew, therefore, that the substance she purchased was in her presence and that heroin is a controlled substance. Dana knew, furthermore, that her possession was unlawful. A gram is, finally, a usable amount of the drug. But the substance Dana possessed wasn't illegal; it contained two ingredients Dana could've purchased at a drug store. Dana was deceived, in other words, but Dana didn't violate HSC §11377(a) as a result because she didn't possess an actual controlled substance.  

Possession for Sale of Controlled Substance: Additional Persons Eligible For Sentencing Under CPC §1170(h)

Possession for Sale of Controlled Substance: Additional Persons Eligible For Sentencing Under CPC §1170(h) [HSC §11378] calls for sentencing specified groups under California's “Three Strikes” system for selling or possessing certain drugs for sale. The statute creates five additional categories of offenders who are eligible for enhanced sentencing, including persons possessing for sale anything “classified in Schedule III, IV, or V [that] is not a narcotic drug.”[39]  

If you're convicted of violating HSC §11378, the penalty, without sentence enhancement, may be:

  • A term of up to three (3) years in a state prison;[40] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[41]

Note: Penalties for persons with more than one “strike” on their records are significantly more severe.[42]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and we guarantee it.

California Criminal Jury Instructions - Possession for Sale of Controlled Substance: Additional Persons Eligible For Sentencing Under CPC §1170(h)

To convict you under HSC §11378, the prosecution must prove the following beyond a reasonable doubt:

You unlawfully possessed a controlled substance listed in the statute and knew of its presence. You also knew of the substance's nature or character as a controlled substance and you intended to sell it or that someone else sell it. The substance is listed in the schedules set forth in sections 11054 through 11058 of the Health and Safety Code or it was an analog of some type of controlled substance. The controlled substance was, finally, in a usable amount.

Example: Defendant Debbie purchases a half-pound of peyote while on a trip. Then she contacts Friends and tells them she has peyote for sale. She also tells them to keep the fact quiet because peyote is an illegal drug listed on the schedules. One Friend, who's arrested on an unrelated charge, informs Police that Debbie is selling peyote. Debbie is arrested. Law enforcement, seeking to put a “strike” on Debbie's record for selling drugs, charge her under HSC §11378(2). Should Debbie be convicted of the accusation?  

Conclusion:  Debbie possessed a substance which she knew to be illegal and prohibited. (Peyote is listed as a Schedule I drug.[43]) She intended on selling the peyote. She knew she had no lawful right to possess the peyote. A half a pound is, finally, more than enough to use. These are elements of the offense as charged. But Section 11378(2) specifically exempts peyote [HSC §11504(15)], meaning that Debbie can't be prosecuted under HSC §11378 by its own terms. Debbie should be acquitted even though she can be prosecuted for possessing the peyote for sale purposes under HSC §11351.  

Sale, Transportation for Sale, etc., of Controlled Substance

The law prohibiting Sale, Transportation for Sale, etc., of Controlled Substance (HSC §11379(a)) applies whenever anyone actually transports, or arranges to transport, any of the drugs recited in the statute. This includes any controlled substance “classified in Schedule III, IV, or V” which isn't “a narcotic drug.”[44]

If you're convicted of Sale, Transportation for Sale, etc., of Controlled Substance, the penalty may be:

  • A term of up to four (4) years in a state prison;[45] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine.[46]

Note: Section 11379(a) also makes it illegal to sell, furnish, administer or give away banned substances or to offer to do any of these things. This Code Section is punished under the “Three Strikes” system.[47]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer – guaranteed.

California Criminal Jury Instructions - Sale, Transportation for Sale, etc., of Controlled Substance

To convict you under HSC §11379(a), the prosecution must prove the following beyond a reasonable doubt:

You transported for sale, or imported, a controlled substance. You knew of its presence and of the substance's nature or character as a controlled substance. The substance is listed in the schedules set forth in sections 11054 through 11058 of the Health and Safety Code or it was an analog of a controlled substance. The substance was, finally, in a usable amount.

Example: Defendant Deena is arrested and charged with importing 200 tablets of Oxycodone (“Oxy”)[48] without a prescription. She admits that she did this. She also admits that she knew Oxy was a controlled substance and that she was in possession of it. She even admits that she had a usable amount of a drug she knew to be listed in the schedules. But Deena insists that she wasn't going to sell the Oxy, and thus, she says, she can't be convicted, even though she's been charged under Section 11379(a). Should Deena be acquitted, as she believes?    

Conclusion: Deena established every element of the offense through her own admissions. She imported a drug she knew to be prohibited under the schedules. She had no prescription for the drug and Deena received hundreds of tablets (a usable quantity). She knew that she was in possession of it. These facts establish the crime. But HSC §11379(a) applies only to non-narcotic drugs, unlike Section 11351. Deena actually imported Oxycodone, however, a Schedule II drug[49] defined as a narcotic. Thus Deena shouldn't be convicted simply because she was charged under the wrong section of the Health and Safety Code.    

Possession Of Imitation Controlled Substance With Intent To Distribute

Possession Of Imitation Controlled Substance With Intent To Distribute (HSC §109575) occurs whenever anyone “knowingly manufactures, distributes, or possesses” with intent to distribute “an imitation controlled substance.”[50]

If you're convicted of Possession Of Imitation Controlled Substance With Intent To Distribute, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of $1,000 (one-thousand dollars); OR,
  • Both imprisonment and a fine.[51]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer – and that's guaranteed.

California Criminal Jury Instructions - Possession Of Imitation Controlled Substance With Intent To Distribute

To convict you under HSC §109575, the prosecution must prove the following beyond a reasonable doubt:

You knowingly manufactured, distributed, or possessed an imitation controlled substance with intent to distribute that substance.

Example: Defendant Dean wants to become a commercial photographer. In an effort to improve his portfolio of pictures, Dean creates a display featuring dozens of Vicodin pills[52] fashioned from ordinary aspirin and yellow food coloring, on which he paints labels. Dean takes several pictures of the display. But Dean's work is so convincing that when Father comes across the pills, he reports Dean for unlawful possession of an opioid. Yet, while police soon establish that the pills aren't really Vicodin, Dean is still charged under §109575. He swears that he did nothing wrong. Should Dean be acquitted on these facts?  

Conclusion:  Dean created an imitation of Vicodin, a narcotic containing hydrocodone, a Schedule II opiate drug.[53] It requires a prescription if it's to be legally possessed or used. Thus it is a controlled substance. But Dean had no intention of doing anything beyond taking photographs of his imitation Vicodin pills. He didn't have the critical intent to distribute the substance he created. Dean, it follows, should be acquitted of violating HSC §109575 because Dean lacked the required criminal intent.    

Offering To Sell Substitute Substance

You commit the crime of Offering To Sell Substitute Substance (HSC §11355) by offering to sell any one of the many narcotic drugs referenced in the statute while intending instead on delivering an imitation. The statute lists offering to deliver “any controlled substance classified in Schedule III, IV, or V which is a narcotic drug”[54] among prohibited its acts.  

Since the prosecution can charge you with a Misdemeanor or Felony, depending on the facts of your case, HSC §11355 is known as a “wobbler” offense.[55] If you're convicted of the Felony form, without enhancement, the penalty may be:

  • A term of up to three (3) years in a state prison;[56] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[57]

Note: The prosecution doesn't have to prove that you “actually possessed the non-controlled substance.”[58]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer – and that's a guarantee.

California Criminal Jury Instructions - Offering To Sell Substitute Substance

To convict you under HSC §11355, the prosecution must prove the following beyond a reasonable doubt:

You unlawfully offered to sell, transport, or provide a controlled substance and, when you did so, you intended on delivering a non-controlled substance in lieu of that controlled substance.

Example: Defendant Devries knows that Victim Veronica wants to purchase morphine tablets from him. Devries also knows that Veronica has never seen or tried morphine. He agrees to sell her four tablets knowing that he'll instead provide her with pills containing an over-the-counter sedative. Devries sells Veronica the tablets. Veronica uses these, suspects that Devries defrauded her, and reports Devries for selling actual morphine. But Devries is arrested and charged under HSC §11355. Should he be convicted?   

Conclusion: While Veronica was incorrect in her report, Devries did in fact agree to provide her with a Schedule II controlled substance, although he intended on providing her with a substitute for morphine – a legal sedative - at the time he agreed to sell Veronica the tablets. Devries offered to sell a controlled substance while intending on delivering a non-controlled substance in lieu of morphine, which is itself a crime. He should be convicted of violating HSC §11355.  

Offering To Sell Synthetic Cannabinoid Or Cannabinoid Derivative

Offering To Sell Synthetic Cannabinoid Or Cannabinoid  Derivative (HSC §11357.5(a)) involves offering to sell, dispense, distribute, furnish, or give away any synthetic cannabinoid or derivative as defined under the statute.[59] 

If you're convicted of Offering To Sell Synthetic Cannabinoid Or Cannabinoid Derivative, a Misdemeanor, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.[60]

Note: You can violate HSC §11357.5(a) without selling anything.

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call always goes directly to a lawyer – and that's guaranteed.

California Criminal Jury Instructions - Offering To Sell Synthetic Cannabinoid Or Cannabinoid Derivative

To convict you under HSC §11357.5(a), the prosecution must prove the following beyond a reasonable doubt:

You sold, dispensed, distributed, furnished, administered, gave, or offered to sell, dispense, distribute, furnish, administer, or give, any synthetic cannabinoid compound or synthetic cannabinoid to a person.

Example: A chemotherapy patient, Defendant Daisy, needs money for her treatments. She offers to sell a small amount of Nabilone, a synthetic cannabinoid[61] prescribed to treat her nausea, to Patient, who's also being treated for cancer. Nurse learns of the deal and reports Daisy for violating HSC §11357.5(a). Daisy is arrested. Daisy points out that the Nabilone was for Patient, who, like herself, needed nausea relief. Is Daisy guilty of the offense charged? 

Conclusion: While it's an added tragedy, considering her situation, Daisy is also guilty of a crime. She offered to sell a synthetic cannabinoid ordinarily prescribed to treat nausea and vomiting to Patient. Though Patient may have had a legitimate medical need for the Nabilone, Daisy had no legal right to provide Patient with the cannabinoid. Daisy, therefore, is guilty regardless of the purchaser's needs.      

Possession For Sale Of Synthetic Stimulant Compound

The crime of Possession For Sale Of Synthetic Stimulant Compound (HSC §11375.5(a)) occurs whenever anyone sells, dispenses, distributes, furnishes, administers, gives, or offers to sell, dispense, distribute, furnish, administer, or give, any synthetic stimulant compound to another person.

The compound must be of the sort specified in the statute[62] “or any synthetic stimulant derivative.”[63] Section 11375.5(a) also makes it illegal to possess for sale any one of the listed synthetic stimulants.

If you're convicted of Possession For Sale Of Synthetic Stimulant Compound, a Misdemeanor, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.[64]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. You'll always get directly to a lawyer – guaranteed.

California Criminal Jury Instructions - Possession For Sale Of Synthetic Stimulant Compound

To convict you under HSC §11375.5(a), the prosecution must prove the following beyond a reasonable doubt:

You sold, dispensed, distributed, furnished, administered, gave, or offered to sell, dispense, distribute, furnish, administer, or give, a synthetic stimulant compound specified in the statute, or any synthetic stimulant derivative, to another person, or you possessed for sale a prohibited synthetic compound or derivative.

Example:  Defendant Dagny is told that mephedrone, a synthetic stimulant[65] that mirrors some of the effects of MDMA, isn't listed on any of the California drug schedules. She concludes that it's legal to possess and use. Dagny orders some from an internet supplier. But Dagny is arrested by Undercover Officer when the package is delivered. Dagny is charged under HSC §11375.5(a). Is Dagny innocent? 

Conclusion: Mephedrone is listed as a Schedule I drug on the US schedules – but it is unlisted on the California schedules. In this sense Dagny is correct. But it's illegal to possess a synthetic stimulant compound or derivative in this state. Mephedrone is such a compound. Thus, although the drug she possessed isn't listed on the state drug schedules, Dagny is still guilty of violating HSC §11375.5(a) because she possessed a synthetic stimulant.   

Peyote Cultivation

Peyote Cultivation (HSC §11363) is in fact a crime in California. Though it has been argued that use of peyote should be legalized for religious purposes, the US Supreme Court has held that laws which don't exempt religious ceremonial uses still do not violate the Free Exercise Clause of the constitution when those laws declare peyote illegal.[66] This is why HSC §11363 can prohibit planting, cultivating, harvesting, drying or processing “any plant of the genus Lophophora, also known as peyote, or any part thereof[.]”[67]     

If you're convicted of Peyote Cultivation, the penalty may be:

  • A term of up to one (1) year in a state prison;[68] OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.[69]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. You'll always get directly to a lawyer – guaranteed.

California Criminal Jury Instructions – Peyote Cultivation

To convict you under HSC §11363, the prosecution must prove the following beyond a reasonable doubt:

You planted, cultivated, harvested, dried, or processed a peyote plant or any part of a peyote plant.

Example: A farmer, Defendant Deke, agrees to help two Cultivators grow peyote on an unowned parcel of land some distance from Deke's own. Deke sows two rows of plants and never returns to the land. But Deke is arrested three months later after Cultivator One is arrested and turns on the others. Deke objects that he hasn't seen or contacted the Cultivators in months and that he had nothing to do with raising the peyote in any case. Deke is charged under HSC §11363 nonetheless. Is he guilty or innocent?    

Conclusion: Though Deke seems to believe that the word “cultivation” has a narrow definition, it does not. The Code Section, in fact, first makes it unlawful to plant peyote – which is actually the only thing Deke did in his arrangement with Cultivators. It doesn't make a difference whether Deke had an ongoing relationship with raising the peyote plants; he did everything necessary to violate the law by doing the planting. Deke, it follows, should be convicted of violating HSC §11363.

What Can I Do If I'm Charged With Sale, Transportation for Sale, etc., of Controlled Substance?

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The State of California regards Sale, Transportation for Sale, etc., of Controlled Substance as a serious offense. If you're charged with Sale, Transportation for Sale, etc., of Controlled Substance, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. If you or someone you know has been arrested or charged with Sale, Transportation for Sale, etc., of Controlled Substance, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.       

References

[1] See HSC §11352 (c).

[2] “Selling for the purpose of this instruction means exchanging a controlled substance for money, services, or anything of value.” See California Criminal Jury Instructions 2300 (CALCRIM) (2017).

[3] “A person administers a substance if he or she applies it directly to the body of another person by injection, or by any other means, or causes the other person to inhale, ingest, or otherwise consume the substance.” See California Criminal Jury Instructions 2300 (CALCRIM) (2017).

[4] “A person transports something if he or she carries or moves it from one location to another for sale, even if the distance is short.” See California Criminal Jury Instructions 2300 (CALCRIM) (2017).

[5] “A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces or debris are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.” See California Criminal Jury Instructions 2300 (CALCRIM) (2017).

[6] See California Criminal Jury Instructions 2300 (CALCRIM) (2017).

[7] See “Propofol” at Wikipedia.org.

[8] See HSC §11055 (c) (8).

[9] Fact pattern based on the acts of former Dr. Conrad Murray and the death of Michael Jackson. See “The drugs found in Michael Jackson's body after he died.BBC Newsbeat, August 11, 2011. 

[10] See HSC §11352 (a).

[11] See HSC §11372 (a).

[12] See HSC §11370.4 (a) (6).  

[13] See HSC §11372 (d).

[14] See California Penal Code [CPC] §1170 (h) (1).

[15] See CPC §667 (e) (2) (A) (ii).

[16] See “Mescaline” at Psychonautwiki.org.  

[17] See HSC §11504 (d) (14).

[18]  See “Heroin” at Wikipedia.org.

[19] See HSC §11504 (c) (11).

[20] See California Criminal Jury Instructions 3408 (CALCRIM) (2017).

[21] See above.

[22] “When deciding whether the defendant was entrapped, consider what a normally law-abiding person would have done in this situation. Do not consider the defendant's particular intentions or character, or whether the defendant had a predisposition to commit the crime.” See California Criminal Jury Instructions 3408 (CALCRIM) (2017).

[23] “In evaluating this defense, you should focus primarily on the conduct of the officer.” See California Criminal Jury Instructions 3408 (CALCRIM) (2017).

[24]  See “Morphine” at Wikipedia.org.

[25] See HSC §11055 (b) (1) (L).

[26] See HSC §11351 (2).  

[27] See HSC §11351.

[28] See Endnote 11.

[29] See California Criminal Jury Instructions 2302 (CALCRIM) (2017).

[30] See Endnote 14.

[31] See “Lysergic acid diethylamide” at Wikipedia.org.

[32] Fact pattern based on the exploits of Bay Area chemist Augustus Owsley. See “Owsley Stanley, Artisan of Acid, Is Dead at 76,” by Margalit Fox. The New York Times Online, March 14, 2011.

[33] See HSC §11504 (d) (12).

[34] The statute references, for example, any drug “in Schedule III, IV, or V[ ] [ ] which is not a narcotic drug,” among others. See HSC §11377 (a).

[35] See “Wobbler” definition at USLegal.com.

[36] See Endnote 14.

[37] See CPC §672.

[38] See California Criminal Jury Instructions 2304 (CALCRIM) (2017).

[39] See HSC §11378 (1).

[40] See Endnote 14.

[41] See Endnote 37. 

[42] See Endnote 15.

[43]  See HSC §11504 (d) (15).

[44] See HSC §11379 (a) (1).

[45] See HSC §11379 (a).

[46] See Endnote 37. 

[47] See Endnote 14.

[48] See “Oxycodone” at Wikipedia.org. 

[49] See HSC §11055 (b) (1) (M).

[50] See HSC §109575.

[51] See above.

[52] See “Hydrocodone/paracetamol (Vicodin)” at Wikipedia.org.

[53] See HSC §11055 (b) (1) (I) (i).  

[54] See HSC §11355 (2).

[55] See Endnote 35.

[56] See Endnote 14.

[57] See Endnote 37.

[58] See California Criminal Jury Instructions 2316 (CALCRIM) (2017).

[59] See HSC §§11357.5 (c) (1) – (14) (Y).

[60] See HSC §11357.5 (a).

[61] See “Nabilone” at Wikipedia.org.

[62] See HSC §§11375.5 (c) (1) – (3).

[63] See HSC §11375.5 (a). 

[64] See above.

[65] See “Mephedrone” at Wikipedia.org.

[66] See Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). (Defendants were fired for taking Peyote ceremonially, claimed they had right under Free Exercise clause to do so; Sup.Ct. held for State of Oregon.)

[67] See HSC §11363.

[68] See above.

[69] See Endnote 37. 

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