Drug Offenses
Category > Drug Offenses
Bill repealing the narcotics offender registration provision applied retroactively to defendant.Defendant was convicted of drug and firearm possession offenses. As part of his sentence, he was ordered to register as a narcotics offender under former Health and Safety Code section 11590. After he was sentenced, the Legislature repealed section 11590 as part of AB 1261. The provision is now a nullity and was omitted from defendant’s abstract of judgment.id: 27383
The trial court erred in failing to instruct on the useable amount element of bringing drugs into a jail.Defendant was convicted of bringing a controlled substance into a penal institution in violation of Penal Code section 4573. The trial court prejudicially erred by failing to instruct on the element that the controlled substance be of an amount sufficient for use. id: 27248
The prosecution is required to admit actual evidence an unreasonable risk of danger to the public under Prop 64.The trial court abused its discretion by denying defendant’s petition to recall his felony conviction for possessing marijuana for sale and resentence him to a misdemeanor under Prop 64. The prosecution presented no evidence to satisfy its burden of a preponderance of the evidence. and instead relied on bald factual assertions and argument unsupported by evidence.id: 25935
The trial court erred by instructing the jury with an earlier version of section 11379 that did not require proof the transportation of the drugs was for sale.Health and Safety Code section 11379 prohibits transportation of a controlled substance. A violation requires proof that the transportation was for sale. The trial court erred when it instructed the jury with an earlier version of section 1179 that did not require proof the transportation was for sale. However, the error was harmless where the jury found defendant possessed the same substance for sale.id: 25022
The prosecution failed to establish that Dihydrocodeneione/Vicodin is a controlled substance.Defendant was convicted of possession of a controlled substance under Health and Safety Code section 11351. However, the prosecution failed to prove that dihydrocodeinone/Vicodin is a controlled substance because it is not listed as such under section 11055 or 11056.id: 25368
Attempted possession is not a lesser included offense of possession.The trial court erred by finding that attempted possession of a controlled substance was a lesser included offense of possession of a controlled substance, and substituting the attempted possession of a controlled substance for the drug possession charge after granting defendant’s motion to dismiss the greater charge at the end of the prosecution’s case-in-chief. Since the attempted possession charge was not included in the information, the trial court lacked jurisdiction to convict defendant of the lesser related offense.id: 24810
Transportation of heroin for sale conviction was reversed where the jury did not decide whether the heroin was transported for personal use pursuant to a new amendment to the statute.Defendant’s transportation of heroin conviction under Health and Safety Code section 11352, subd. (a) was reversed in light of a recent amendment that applies retroactively and makes non-personal use an element of the offense.id: 24492
Possession of a Bic lighter was insufficient to support the conviction for possessing tobacco.The minor was found to be in possession of tobacco, an infraction under Penal Code section 308. The provision prohibits possession of tobacco or paraphernalia designed for smoking tobacco. However, a Bic lighter, like the one possessed by the minor, is not “designed for the smoking of tobacco.” The evidence was insufficient to support the conviction.id: 24632
The trial court erred by failing to instruct on the infraction of simple possession of marijuana as a lesser included offense of possession for sale.Defendant was charged with possession of marijuana for sale. The trial court erred by refusing to instruct on the lesser included offense of simple possession of less than an ounce, an infraction, based on the mistaken belief that an infraction cannot be tried to a jury. The issue was not waived under the invited error doctrine based on counsel’s failure to object to the court’s ruling where the record did not show a tactical reason for the decision.id: 24109
Evidence of MDMA’s chemical name, standing alone, was insufficient to prove the material was a controlled substance. The prosecution proved the blue pills defendant sold to the undercover officer were MDMA, also known as Ecstasy, but failed to prove the MDMA is a controlled substance under the Health and Safety Code. Whether MDMA is a controlled substance is not a fact a court or jury can judicially notice. Defendant’s convictions for selling and possessing a controlled substance were reversed.id: 23268
The trial court erred in finding the location from which the officer viewed the drug transaction was privileged under section 1040 and by concluding it was not material information.Defendant was convicted of drug possession and the case was based largely on the observations of a police officer who declined to reveal the exact location of his observation. The trial court erred by finding the location was privileged under Evidence Code section 1040 and that it was not material for purposes of section 1042. The privilege cannot be upheld where the transcript reviewed at the in camera hearing provided no information about the location or why secrecy was necessary. Moreover, knowledge of the claimed location was key to the effective cross-examination of the officer and the court’s refusal to allow its disclosure denied defendant a fair trial.id: 23111
Possesion of one ingredient was not sufficient to support a conviction of possession of a reducing agent.The evidence was insufficient to support defendant’s conviction for possession of an essential chemical sufficient to manufacture hydriodic acid or a reducing agent with intent to manufacture methamphetamine in violation of Health and Safety Code section 11383.5, subd.(e). Defendant possessed only one ingredient, red phosphorous, and the statute’s unambiguous language requires possession of all constituent elements.id: 22958
The trial court erred by failing to instruct that in order to convict defendant of selling or possessing MDMA it had to determine MDMA was a controlled substance or a controlled substance analog. Defendant was convicted of possessing and selling a controlled substance after providing MDMA (Ecstacy) pills to an undercover officer. The trial court erred by failing to instruct the jury that in order to find defendant guilty of possessing or selling MDMA it had to determine that MDMA was a controlled substance or a controlled substance analog. However, the error was harmless where defendant effectively conceded the issue by failing to argue the point or request the instruction.id: 22461
Possession for sale and transportation for sale convictions were reversed where the prosecution failed to prove the MDMA is a controlled substance. Defendant was convicted of possessing for sale and transporting for sale, a controlled substance in violation of Health and Safety Code sections 11378 and 11379. However, the evidence was insufficient to support the convictions where the prosecution presented no evidence showing that MDMA is a controlled substance and that defendant knew it to be so. The convictions were reversed.id: 22369
The trial court prejudicially erred by instructing that defendant could violate section 11353 by providing methamphetamine to minors. Defendant was convicted of two counts of furnishing a controlled substance to a minor in violation of Health and Safety Code section 11353. However, the trial court erred by instructing that the provision could be violated by providing either cocaine base or methamphetamine to a minor because methamphetamine was not included in the list of offenses specified in section 11353. It did not matter that another provision specifically prohibited providing methamphetamine to children. The instructional error required reversal.id: 22220
Defendant who possessed drugs when booked into jail following his arrest cannot be convicted of bringing drugs into a jail. The evidence was insufficient to support defendant's conviction of bringing drugs into the jail in violation of Penal Code section 4573 where he entered the jail in handcuffs following his arrest. He did not engage in the voluntary act (actus reus) necessary for the crime.id: 19552
Section 11366 is not violated if the defendant continually uses drugs in his own home.Defendant was convicted of maintaining a place for selling, giving away or using a controlled substance in violation of Health and Safety Code section 11366. However, that provision is not violated by a defendant’s personal use of a controlled substance in his own home, even if he used drugs continuously. The statute is violated only if defendant maintains a place for repeated use of drugs by others. The trial court erred by giving the instruction that permitted a conviction for maintaining a place for defendant’s personal use.id: 21326
A person who brought marijuana into juvenile hall should have been charged under section 871.5.A person who brings a controlled substance or other contraband into juvenile hall is properly charged under Welfare and Institution’s Code section 871.5, not Penal Code section 4573 as was done in this case. The matter was remanded for a new dispositional hearing.id: 21119
Evidence did not support the conviction for attempting to manufacture hashish because without the key ingredient of marijuana, defendant was still in the planning stage.Defendant was convicted of attempting to manufacture hashish. However, the conviction was reversed where there was no evidence that defendant ever advanced beyond the planning or preparation stage. While he had certain pieces of unassembled equipment that might be used in the process, he did not possess the key ingredient, marijuana, at the time of the arrest. He therefore had no ability to begin manufacturing hashish.id: 20768
For the purposes of section 11366.8 a “false compartment” excludes a vehicle’s original factory equipment that was not later modified by someone after the purchase.Health and Safety Code section 11366.8 prohibits the possession of a false compartment with the intent to conceal or transport drugs in that compartment. The provision must be interpreted to exclude from its definition of “false compartment” a vehicle’s original factory equipment that has not been modified, altered or changed in any way.id: 20623
The numerical limits set forth in the Medical Marijuana Program Act are an unconstitutional amendment to the Compassionate Use Act.The Compassionate Use Act of 1996 (Health and Safety Code section 11362.5) relieves a defendant of criminal liability for certain marijuana related offenses if the defendant possesses or cultivates marijuana for his personal medical purposes if approved by a physician. The Medical Marijuana Program Act of 2003 (section 11362.7) limits the amount of marijuana a qualified patient can possess to no more than eight ounces of dried marijuana and no more than six mature or 12 immature plants if there is no doctor’s recommendation that these quantities are insufficient to meet the patient’s needs. However, the numerical limits of the latter act are an unconstitutional amendment to the Compassionate Use Act.id: 20456
The Compassionate Use Act does not require that a patient periodically renew a doctor’s recommendation regarding medical marijuana use.Defendant was convicted of possessing marijuana for sale. The trial court erred in preventing him from presenting a defense under the Compassionate Use Act. He was not required to present evidence showing that, prior to his arrest he received a doctor’s recommendation that he be allowed to possess more than eight ounces. Moreover, he was not required to have renewed his doctor’s recommendation regarding medical marijuana use. While he should have been allowed to present the “qualified patient defense”, the evidence did not support the “primary caregiver defense” where defendant did not care for another individual but only assumed responsibility for that person’s marijuana needs.id: 20476
Prison sanction (loss of conduct credits) based on heroin possession was improper because the heroin was found on a postcard which was intercepted in the mail room and never delivered to petitioner.Petitioner was a state prisoner who received sanctions from the Department of Corrections and Rehabilitation including the loss of 151 days of good conduct credits based on a finding that he possessed heroin. However, the evidence did not support the sanction where the substance at issue was concealed on a postcard addressed to the petitioner but was never in his possession as it was intercepted by a guard in the mail room.id: 20523
The trial court erred by instructing that one can be guilty of using a false compartment of a vehicle to store drugs without modifying the compartment. Defendant was convicted of constructing, possessing or using a false compartment with the intent to conceal a controlled substance in violation of Health and Safety Code section 11366.8. However, the instruction that one could be convicted of the offense even without modifying the configuration of the space was improper. The instructional error was prejudicial where there was no evidence that the space had been modified.id: 19779
A violation of section 11366.5(a) requires that the property owner allowed a third party to use the property to manufacture, store or distribute drugs.Evidence was insufficient to support defendants' convictions for making a place available for use for the manufacture, storage or distribution of a controlled substance under Health and Safety Code section 11366.5, subd.(a). Defendants owned the property and there is no violation of the statute if the persons who control the property are the only ones using it to manufacture the controlled substance.id: 19933
The evidence did not establish defendant knew the methamphetamine found on the nightstand of the room he shared with his girlfriend was a controlled substance. Defendant was convicted of possession of methamphetamine. However, the discovery by police of a small amount of methamphetamine on the nightstand in a room defendant shared with his girlfriend, while sufficient to prove his constructive possession of the methamphetamine was insufficient to prove that he knew of its nature as a controlled substance.id: 19652
Defendant's weapons were improperly confiscated following his guilty plea to cultivating marijuana.Defendant pled guilty to one count of cultivating marijuana. He moved for the return of personal property (firearms) but the court refused to return the property pursuant to Penal Code section 12028, which declares firearms used in the commission of a crime to be a nuisance and provides for confiscation and destruction of such firearms. However, the firearms were improperly confiscated as none of the elements of the offenses of which defendant was charged related to firearm use and there was no specific adjudication of the issue whether firearms were used in the commission of the crime. Moreover, both the appeal (from the order after judgment confiscating the weapons pursuant to section 12028) and the writ of mandate (reviewing the denial of the motion to return defendant's property) were proper proceedings.id: 10719
Application of weight enhancement to drug dealer charged with conspiracy requires a finding of defendant's substantial involvement.Appellant was convicted of conspiracy to sell or transport a controlled substance and the jury found the weight allegation enhancement under Health and Safety Code section 11370.4, subdivision (a)(1) to be true. However, the enhancement provision was modified in 1990 to require a finding of substantial involvement in order to apply the enhancement to a defendant charged with conspiracy. The failure of the jury instruction (CALJIC 17.22.1) and the verdict forms to require this finding necessitated that the enhancement be stricken.id: 10696
Court erred in failing to instruct that defendant must be substantially involved in the conspiracy before the quantity enhancement for conspiracy or possession based on a conspiracy theory can be imposed.The quantity enhancement under Health and Safety Code section 11370.4, subdivision (a) cannot be imposed upon a defendant found guilty of the substantive offense based on a conspiracy theory unless the trier of fact makes a finding the conspirator defendant was substantially involved in the conspiracy. Because the instruction given was legally incorrect the quantity enhancement was reversed.id: 10707
Where defendant was convicted of selling cocaine as opposed to cocaine base the court erred in believing probation could be granted only upon a finding that this was an unusual case.Defendant was convicted of selling cocaine pursuant to Health and Safety Code Section 11352. Inasmuch as he was not convicted of sale of cocaine base, the trial court erred in believing probation could be granted only upon a finding that this was an unusual case. However, remand was not required where the court found but one mitigating circumstance and then listed a series of aggravating circumstances.id: 10774
Court erred in failing to give the unanimity instruction for possession of narcotics for sale where possession was based on two or more units of contraband.In a prosecution for possession of narcotics for sale, where actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space and there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant, absent an election by the People, CALJIC 17.01 must be given to assure jury unanimity.id: 10706
Trial court had a sua sponte duty to instruct on lesser included offenses to the alternative charged offense of sale of cocaine.The trial court had a sua sponte duty to instruct on possession for sale and simple possession as lesser included offenses of sale of cocaine, given the alternative nature of the charged offense and the facts of the case. The evidence on the sales theory was not insufficient but would have supported the lesser included offense instructions. However, the legal error did not require reversal since it may be presumed that, if the jury found the evidence of sale questionable, it instead turned to the alternate transportation charge which was overwhelmingly supported by the record.id: 10771
Court committed reversible error in failing to sua sponte define addict where doctor was charged with illegally prescribing drugs for addicts.Defendant doctor was convicted of 13 counts of illegally prescribing a controlled substance (Health and Safety Code section 11153). Several experts testified about the meaning of addiction. Defendant argued he was not prescribing to addicts. The People argued otherwise. Both sides emphasized addiction in their arguments. The trial court's failure to sua sponte instruct the jury on the definition of the word addict was reversible error.id: 10701
Defendant was entitled to benefit of the amendment to enhancement for drug dealing near schools where it became effective before his trial.Defendant was entitled to the benefit of a 1992 amendment to the drug trafficking near school yards enhancement set forth in Health and Safety Code, section 11353.6, subdivision (b). The ameliorative portion of the amendment to specific drug violations within 1,000 feet of a school to those which take place in a public area or business establishment where minors are legally permitted to conduct business (section 11353.6, subdivision (g)) applies to defendant because the statutory change became effective before defendant's jury trial, and the Legislature did not preclude its effect of pending cases.id: 9302
Specific solicitation statute preempted prosecution under the more general attempted possession provision where defendant simply asked to buy drugs from the officers and waited while the officer went to the car.Defendant was arrested in a reverse sting operation and charged with attempted possession of cocaine under Penal Code section 664 and Health and Safety Code section 11350. The trial court granted defendant's motion to dismiss after finding defendant's conduct was governed by the more specific charge of solicitation pursuant to Penal Code section 653f, subdivision (d). Defendant approached the officer and asked for the drugs. The officer told him to wait while he retrieved the drugs. The evidence did not support the attempt charge because defendant did not commit a direct and unequivocal act toward the commission of possession. Defendant's act of waiting while the officer went back to the car did not constitute such an act. The trial court properly determined the more specific solicitation statute preempted prosecution under the more general statute.id: 15161
In a marijuana cultivation case the court erred in failing to instruct that mere knowledge the crime is being committed does not amount to aiding and abetting.Defendant was convicted of cultivating marijuana. The evidence established that a third party was growing the marijuana on his land with his knowledge but that he had asked her to stop. In giving the aiding and abetting instructions, the court prejudicially erred in failing to instruct pursuant to CALJIC 3.01 that mere knowledge that a crime is being committed and failure to prevent it does not amount to aiding and abetting. The court further held that a possessor of real property may be convicted for the cultivation of marijuana based on an aiding and abetting theory when the possessor knows of the cultivation on his property and forebears from termination of that activity with the intent to facilitate the illegal conduct.id: 9633
Provision of cannabis in prison remains a crime after Prop 64.Proposition 64 did not invalidate cannabis-related convictions under Penal Code section 4573.6, which makes it a felony to possess a controlled substance in a state correctional facility. id: 27435
Evidence was insufficient to support the conviction for possessing drugs while armed where the rifle was found inside of a bag in the bed of a truck and not available for immediate use.Police stopped defendant while he was driving a pickup truck, and found a rifle inside of a bag in the open bed of the truck. Evidence was insufficient to support his conviction for possessing methamphetamine while armed with a loaded firearm because the firearm was not available for his immediate use.id: 27372
Prop 64 does not require DNA expungement for a conviction that was reduced to an infraction for all purposes.Defendant’s felony marijuana-related conviction was later reduced to an “infraction for all purposes” under Prop 64. The redisignation did not require expungement of his previously collected DNA sample from the state’s database. id: 25871
The trial court erred by denying defendant’s Prop 64 petition to dismiss his cultivation conviction where the only evidence presented by the prosecution was the probation report.Defendant was convicted of felony marijuana cultivation in violation of Health and Safety Code section 11358. He later filed a petition under Prop 64 seeking to dismiss or reduce his conviction to a misdemeanor under section 11361.8. The trial court erred in denying his petition to dismiss since the only evidence submitted by the prosecution was the probation report, which was not determined to be reliable. Moreover, the report did not provide the necessary information regarding the number of plants. Finally, the prosecution forfeited any argument that granting the petition would present an unreasonable risk since it failed to raise the issue in the trial court. id: 25836
The trial court did not err by excluding evidence of defendant’s intoxication at the time he entered the jail which he argued was relevant as to whether he knowingly possessed drugs in the jail.Defendant was convicted of the knowing possession of methamphetamine in jail in violation of Penal Code section 4753.6, subd.(a). He argued the court erred by excluding evidence of his voluntary intoxication at the time of his arrest almost two days before the drugs were discovered. However, voluntary intoxication is inadmissible to negate the presence of general criminal intent, so the court’s ruling was proper.id: 25671
In defendant’s money laundering case, any error in failing to instruct on the elements of the underlying controlled substance offense was harmless.Defendant, who was convicted of money laundering under Health and Safety Code section 11370.9, subd.(a), argued the trial court erred by failing to instruct on the elements of the unlawful sale of marijuana. However, any error was harmless given the evidence that he knew the money discovered in his car came from the unlawful sale of marijuana.id: 25058
The trial court did not deprive defendant of the right to present a defense by precluding argument suggesting that a specific amount of drugs must be shown to establish a usable amount. Defendant was convicted of possession of methamphetamine in prison. He argued the trial court erred by preventing him during closing argument from properly addressing the quantity of meth found on the papers in an attempt to challenge whether the papers contained a usable amount for purposes of Penal Code section 4573.6. However, the court interpreted the argument to incorrectly suggest that a specific amount must be shown to be a usable amount. The court’s ruling did not violate defendant’s right to counsel or to present a defense. id: 26238
The officer who had never seen methamphetamine infused paper in the prison was properly allowed to testify that the paper contained a usable amount of the drug.Defendant was convicted of possession of methamphetamine in prison. He argued the trial court erred by allowing the officer to testify that the amount of methamphetamine infused onto the papers found was a usable amount because the officer had never before seen methamphetamine infused paper or observed anyone ingest the paper. However, the officer could properly rely on his training regarding prison contraband to conclude that when an inmate placed a paper in his mouth to dissolve, there was a usable amount.id: 26237
Officer’s testimony that there was more than a trace amount of meth on the paper supported the conviction for possession of meth in prison.Defendant was convicted of possession of methamphetamine in prison. The drug had been infused onto paper, which had become a trend in getting it to inmates. Evidence supported the conviction of violating Penal Code section 4573.6, as an officer testified there was a usable amount of methamphetamine, and defendant was aware of it. A quantitative analysis establishing purity was not required.id: 26236
he trial court lacked jurisdiction to grant a section 1018 motion to withdraw a plea from 2007 so that defendant could take advantage of a 2014 statutory amendment to section 11352. In 2007, defendant pled no contest to transporting heroin. She later sought to vacate her felony conviction and replace it with a misdemeanor for simple possession, seeking a retroactive application of a 2014 amendment to Health and Safety Code section 11352 that required transportation for sale, rather than personal use. The trial court lacked jurisdiction to grant defendant’s motion under Penal Code section 1018 to withdraw her plea. However, the court indicated future relief might be available through a petition for a writ of coram nobis.id: 25222
Defendant was not entitled to the retroactive application of Prop 64. Defendant argued the sentence for her felony marijuana possession conviction had to be corrected in light of Prop 64, which reduced the offense to a misdemeanor. However, a person sentenced before the enactment of Prop 64 for violating Health and Safety Code section 11359 whose judgement is not yet final is not automatically entitled to reduction of punishment provided by the amendment to that statute.id: 25192
Provision requiring narcotics offender registration applies to attempted as well as completed possession offenses. Defendant was convicted of attempted possession of a controlled substance. He was placed on probation and ordered to register as a narcotics offender under Health and Safety Code section 11590. He argued that provision applies to completed rather than attempted violations of section 11378. However, section 11590 applies to attempts.id: 25125
Defendant may be convicted of receiving or acquiring proceeds from drug sales that he allegedly conducted himself. A defendant can be convicted of money laundering under Health and Safety Code section 11370.9, subd.(a) even if he acquired the money in question by unlawfully selling the marijuana himself.id: 25057
Health and Safety Code section 11378 does not require proof that defendant intended to sell the meth personally.Evidence supported defendant’s conviction for possession of methamphetamine for sale given the large quantity found, the scale and the packaging materials. Contrary to the defendant’s claim, the law does not require proof that defendant intended to sell it personally.id: 24493
The trial court properly found defendant was ineligible for “drug probation” under section 1210.1 even though the jury convicted him of simple possession. The jury rejected the charges that defendant possessed the heroin and methamphetamine for sale, and convicted him of simple possession instead. Despite the verdict, the trial court could properly find that he did not possess the drugs for personal use and thus was not eligible for drug treatment probation under Penal Code section 1210.1. The trial court’s finding on that basis was supported by substantial evidence.id: 24543
The provision which prohibits bringing drugs into the jail is not limited to noninmate smugglers.Penal Code section 4573 makes it a felony for "any person" "to knowingly bring" a controlled substance into a custodial setting. The statute applies to someone who has a controlled substance in his possession when arrested for another crime, and who knowingly brings the drugs into jail when booked for that offense. Moreover, section 4573 does not implicate the Fourth Amendment privilege against self-incrimination by forcing the arrestee to choose before entering the jail between admitting unlawful drug possession or violating section 4573 and risking greater penalties.id: 21641
Prosecution under section 4573 for an arrestee who brought drugs into the jail, who remained silent when warned, did not violate the Fifth Amendment.Defendant was convicted of unlawfully bringing drugs into the jail in violation of Penal Code section 4573. In the companion case of People v. Low (S15161) ___ Cal.4th ___, the court held that provision applies to an arrestee's involuntary presence in the jail. Moreover, the provision involves no compelled incriminating testimony for Fifth Amendment purposes. Unlike in Low where the defendant falsely denied possessing drugs when booked into the jail, defendant here said nothing in response to the officer's warning about the drugs. Defendant committed a nontestimonial act for which he was not immune from prosecution under section 4573.id: 21642
The “prescription defense” to a drug possession conviction is not available to persons other than the person for whom the prescription was written.The prescription defense to possession or transportation of a controlled substance, does not extend to others who possess or transport the controlled substance “consistent with the prescription” or for the benefit of the prescription holder.id: 23451
Prior drug sale conviction enhancement applies even where the transportation of the drug in the present case was for personal use.Defendant was convicted of transporting methamphetamine. He argued the trial court erred by imposing an additional 3 year enhancement under Health and Safety Code section 11370.2 because the transportation for which he was convicted was based on transportation for personal use. However, the enhancement applies regardless of whether the transportation of a controlled substance was for personal use.id: 23201
Because MDMA contains amphetamine and methamphetamine, defendant was properly convicted of possessing and selling a controlled substance. Defendant attempted to sell an undercover police officer two MDMA pills, also known as Ecstacy. He was convicted of selling a controlled substance under Health and Safety Code section 11379 and possessing a controlled substance under section 11377. He argued the evidence did not support the convictions because MDMA is not a named controlled substance and there was neither a stipulation nor expert testimony showing that it met the definition. However, the chemical name of the substance includes the word methamphetamine (which is a listed controlled substance). Moreover, medical texts verify that MDMA includes amphetamine and methamphetamine. The evidence was sufficient to establish the pills defendant sold the officer contained a controlled substance under state law.id: 22460
The transitory possession defense does not apply where the defendant threw the drugs under the car to avoid arrest.In People v. Mijares (1971) 6 Cal.3d 415, the court found that under certain limited circumstances, momentary possession of contraband is not legally culpable. However, a defendant who disposes of evidence, not out of scruple, but because of the threat of bodily harm or police apprehension cannot invoke the transitory possession defense of Mijares.id: 21403
There was sufficient evidence that defendant had joint dominion and control over the marijuana located in the center console of the car. Defendant argued his conviction for possession of more than 28.5 grams of marijuana had to be reversed because of insufficient evidence that he exercised dominion and control over the marijuana. However, there was substantial evidence to support the inference that defendant, who was driving the car, had joint dominion and control with the passenger over the marijuana that was stored in the center console of the car. id: 21724
Possession of marijuana is not a lesser included offense of transportation when the defendant is prosecuted as an aider and abettor. Defendant argued that his conviction for possession of marijuana should be vacated because it is a lesser included offense of transportation of marijuana when the defendant is prosecuted as an aider and abettor. However, while the two crimes are often committed together, a defendant who agrees to act as a driver for a person who already has sole dominion and control over a controlled substance aids and abets the transportation of the substance but does not aid and abet that person’s possession of the controlled substance. id: 21723
A defendant need not know the weight of the marijuana he possesses exceeds 28.5 grams for purposes of sections 11357 and 11360.Defendant was convicted of possession of more than 28.5 grams of marijuana in violation of Health & Safety Code section 11357, subd.(c), and transportation of more than 28.5 grams in violation of section 11360, subd.(a). He argued the trial court erred by failing to instruct that defendant had to know he transported more than 28.5 grams of marijuana. However, knowledge of the weight of the marijuana is not an element of either offense and the trial court properly instructed the jury.id: 21722
Evidence supported defendant's conviction of possessing Ecstacy whether it was a controlled substance itself or a controlled substance analog of methamphetamine.Defendant was convicted of possession of "Ecstacy" in violation of Health and Safety Code section 11377. Evidence supported the conviction where the investigator testified that Ecstacy is either a controlled substance itself or a controlled substance analog of methamphetamine. In either case, the evidence supported the conviction. Moreover, defendant was adequately notified of the charge even though the information did not specify he would be prosecuted based on the theory that Ecstacy is a controlled substance analog of methamphetamine.id: 21515
Possession of methamphetamine is not a lesser included offense of possession of a controlled substance while armed.Defendant argued his conviction for possession of methamphetamine under Health and Safety Code section 11377 should be stricken because it was a lesser included offense of possession of a controlled substance while armed in violation of suction 11370.1, subd.(a). However, the latter may be violated without violating the former since the list of drugs described in section 11370.1 mentions drugs other than methamphetamine. id: 20784
Evidence supported defendant’s conviction of possessing a controlled substance even though the charge and evidence related to the possession of cocaine base, but the jury convicted defendant of possession of cocaine.Defendant argued the evidence was insufficient to support his conviction of possession of a controlled substance in violation of Health and Safety Code section 11350, subd.(a) because the charge and the evidence addressed the possession of cocaine base yet the jury found him guilty of possession of cocaine. However, there was sufficient evidence that defendant possessed a controlled substance for purposes of section 11350, he waived any problem over the distinction between cocaine and cocaine base, and he suffered no prejudice from the distinction. id: 20725
A defendant may not lawfully sell marijuana on a constitutional religious freedom theory. Defendant was a pro-marijuana activist who was an ordained minister in the Universal Life Church and started Temple 420 as an online ministry. He was convicted of possessing and selling marijuana. Contrary to his claim, the trial court did not err in excluding reference to the Religious Freedom Restoration Act, and the federal and state constitutions as part of his religious freedom defense. Moreover, the trial court did not err in failing to instruct on good faith mistake of law since there was no evidence that defendant thought the sale of marijuana was legal. id: 20670
Because crack presents a larger problem than powder cocaine abuse there is a rational basis for imposing a longer sentence. Defendant argued the higher statutory sentence for possession for sale of cocaine base (Health and Safety Code section 11351.5) versus possession for sale of cocaine powder (section 11351) violated substantive due process and his right to equal protection. However, although crack and powder cocaine are different forms of the same drug, they are objectively distinguishable. Crack has brought cocaine to the streets and created additional problems both in the number of users and the drug’s effect on an individual. There is therefore, a rational basis for distinguishing between cocaine powder and cocaine base for sentencing purposes.id: 20608
Where marijuana resin is extracted by a chemical such as butane, section 11379.6 applies over the more general marijuana cultivation or procession statute.Defendant pled no contest to manufacturing concentrated cannabis (“hash oil”), by using butane to extract the resin containing THC. (Health and Safety Code section 11379.6 sub.(a).) He argued he should have been charged under section 11358, which addresses the processing resin from marijuana. However, where as here, the method used to extract the marijuana resin was by means of a chemical such as butane, section 11379.6, subd.(a) applies over the more general statute punishing marijuana cultivation, harvesting or processing.id: 20568
The Kelly-Frye test does not bar admission into evidence of an ADX Abbott urinalysis test.Defendant argued the ADX Abbott urinalysis test results were inadmissible under the Kelly/Frye doctrine. The machine tests urine samples for drug usage. It is not new. It is a widely used method of drug testing and has reached a level of general acceptance in the medical community.id: 16675
Prop 36 applied to a defendant found guilty prior to the initiative's effective date, but not sentenced until afterwards.Proposition 36 applies to defendants convicted on or after July 1, 2001. "Conviction" within the meaning of Penal Code section 1210.1 means adjudication of guilt and sentencing. Therefore a defendant found guilty before the initiative's effective date of July 1, 2001, but not sentenced until afterwards, was convicted after the effective date and comes within the ambit of Prop 36.id: 16547
Defendant's failure to object or request a jury trial waived the challenge to the probation condition requiring reimbursement of marijuana eradication expenses.Defendants pled guilty to cultivating marijuana. On appeal defendants challenged the probation condition requiring them to reimburse the county for the expenses incurred in eradicating the plants. Health and Safety Code section 11470.2 permits a jury trial on the issue of eradication expenses unless waived by consent of all parties. Defendants did not avail themselves of their statutory rights or otherwise contest the eradication expenses. Accordingly, the waiver doctrine precludes appellate review of the issue.id: 16652
Possession for sale conviction was reversed due to lack of substantial evidence that the officer/expert had sufficient expertise with the lawful use of marijuana.Defendant, who was entitled to consume marijuana under the Compassionate Use Act, was convicted of possessing his marijuana for sale based largely on the opinion of the arresting officer. However, the conviction was reversed as there was no substantial evidence that the officer had any expertise in differentiating citizens who possess marijuana lawfully for their own consumption from those who possess it unlawfully with the intent to sell.id: 20021
CALCRIM instruction on possession of methamphetamine for sale properly described knowledge and control elements and no clarifying instruction was necessary.CALCRIM No. 2302 correctly expresses the knowledge requirement for possession of methamphetamine for sale. Moreover, the trial court did not err by directing the jury to reread the instruction in response to a jury question as to the meaning and application of the element of control.id: 19889
Possession of cocaine base for sale is not a lesser included offense of selling cocaine base. Possession of cocaine base for sale is not a lesser included offense of selling cocaine base. Therefore, defendant was not improperly convicted of both offenses.id: 19829
A person who uses a minor to help him avoid detection may be convicted of using a minor to transport drugs. Defendant was convicted of conspiring to use a minor to transport cocaine in violation of Health and Safety Code Section 11353. Contrary to defendant's claim, the statute did not require active participation by the minor. Defendant conspired to use his son to transport cocaine because he estimated that his son's presence would enable him to avoid detection.id: 19465
Possession of cocaine base for sale is not a necessarily included offense of selling cocaine base.Defendant argued she was improperly convicted for both selling the cocaine rock in count one and possessing the same rock for sale in count two, a necessarily included offense. However, the sale of cocaine does not require possession as one can be convicted as an aider and abettor or a broker. Neither was the possession for sale necessarily included under the charged allegations test where the information simply charged selling cocaine base in count one, and possession of cocaine base for sale in count two.id: 18862
Knowledge that a firearm is loaded and operable is not an element of section 11370.1, subd.(a).Health and Safety Code section 11370.1 imposes a higher sentence for those who possess certain controlled substances if they are also "armed with a loaded, operable firearm." Contrary to defendant's claim, knowledge that the firearm is loaded and operable is not an element of the offense.id: 18826
Former CALJIC No. 12.52 adequately conveyed that to be armed with a firearm under Health and Safety Code section 11370.1 one must have knowledge that the gun is available for use.Defendant was charged with possession of methamphetamine while armed with a firearm in violation of Health and Safety Code section 11370.1. The instruction that to be guilty, defendant must "knowingly" have a firearm available for immediate offensive or defensive use. However, the instructional language implicitly included the element of knowledge, and there was no reasonable likelihood the jurors could have misunderstood.
id: 18803
Defendant who possessed meth precursors he planned to sell could not be convicted of aiding and abetting or directly violating section 11383, subd.(c)(2).Defendant was arrested in possession of methamphetamine precursors he planned to sell. He could not be convicted of aiding and abetting the prospective buyer's possession of precursors with intent to manufacture methamphetamine. Moreover, absent proof of intent to personally participate in manufacturing, he could not be convicted directly of possessing precursors with intent to manufacture methamphetamine under Health and Safety Code section 11383, subd.(c)(2).id: 18608
The court did not err in denying the motion to suppress evidence which was filed on the first day of trial.On the first day of trial, defendant moved to suppress evidence discovered by the search. He alleged the defense was previously unaware of the grounds for bringing the motion, and it was only raised by new counsel. However, defense counsel had been employed on the case for two months prior to trial and must have known the searches were central points of the case. Because defendant presented no justification for the delay, the denial of the motion as untimely was not erroneous.id: 18489
Corpus delicti for maintaining a crack house was established where people under the influence were in the house, along with a crack pipe, cigarettes and packaged crack cocaine. Defendant was convicted of opening or maintaining a place for the purpose of unlawfully selling, giving away or using crack cocaine under Health and Safety Code section 11366. She argued the prosecutor did not establish the corpus delicti of the offense independent of her statements. However, three people were in the house under the influence, indicating recent use. Used crack pipes were found in the house as well as crack-laced cigarettes that had been partly smoked. The supply of four packaged doses of crack stored in Tupperware indicated an intent to sell in the future. The jury could reasonably infer the house was being used to sell, give away or use crack cocaine. The evidence also supported the conviction itself (rather than use on a single occasion) where defendant told police the drugs were for everyone, and her son was selling out of the house with her knowledge.id: 18222
Instruction for maintaining a crack house is not defective for failing to define "opening" or "maintaining."Defendant was convicted of opening or maintaining a place used to sell, give away or use crack cocaine in violation of Health and Safety Code section 11366. She argued the standard instruction for the offense, CALJIC No. 12.08, was inadequate for failing to define "opening" or "maintaining." However, the instruction informs the jury that it must find a specific intent to sell, give away or use on a repetitive and continuing basis. This tells the jury what specific intent a jury must find at least as well and probably better than express definitions of "ongoing" and "maintaining" would do.id: 18223
Trial court erred in failing to instruct the jury that, for purposes of section 11370.1, subd.(a), defendant had to possess the methamphetamine while knowingly armed with a firearm.Defendant was charged with possession of methamphetamine while armed with a loaded shotgun under Health and Safety Code section 11370.1, subd.(a). The trial court erred in failing to instruct the jury that defendant had to possess the drug while knowingly armed with a firearm. However, the error was harmless in light of the jury's other finding that defendant knew of the presence of the gun partially covered by the pillow.id: 17952
Conviction of use of a false compartment does not require proof that the car was modified.Defendant was convicted of possession of a false compartment with intent to store or smuggle drugs pursuant to Health and Safety Code section 11366.8. Contrary to defendant's claim, the provision does not require proof of a modification of the original factory equipment of the car. Evidence that he stored heroin in an air conditioning vent, and a space behind a speaker, supported the conviction. If modification was required, it as also shown that he modified the air conditioning vent to prevent the drugs from falling into the engine. Finally, he was properly convicted as an aider and abettor where the car was registered to another person who had defendant's business card, and who had placed phone calls to defendant within the days prior to the arrest.id: 17787
Atascadero State Hospital is a custodial institution where inmates are in the custody of peace officers, and possession of drugs on hospital grounds is a violation of section 4573.6.It is a felony for any person to possess a controlled substance in or within the grounds of certain state institutions. (Penal Code section 4573.6.) The broad sweep of section 4573.6 includes state mental hospitals in which inmates, who have been transferred there for treatment pursuant to section 2684, are involuntarily confined under the custody of peace officers.id: 17748
Section 11383's expansion of hydriodic acid to include its essential chemicals did not create an unconstitutional mandatory presumption.The Legislature, by extending the prohibition on possessing hydriodic acid to include its essential chemicals, clearly intended to criminalize the possession of red phosphorous and iodine where these two chemicals are found in sufficient quantity to manufacture hydriodic acid and are possessed with intent to manufacture methamphetamine. Therefore, Health and Safety Code section 11383, subd.(f) does not create an unconstitutional mandatory rebuttable presumption. Instead, it expands the definition of hydriodic acid to encompass its essential chemicals and thus defines, in precise terms, the substantive crime of possession of the essential chemicals sufficient to manufacture hydriodic acid.id: 17709
"Sentencing entrapment" does not apply in California and there was no "sentencing manipulation" where the police conduct was unexceptional.The defendants were convicted of attempting to transport cocaine. The jury also found true an allegation that the quantity of the cocaine exceeded 80 kilograms. The defense argued the police deliberately manipulated the punishment by using an amount of cocaine that would add 25 years to each sentence. However, when speaking with the undercover officer, defendants were enthusiastic about the large quantity and did not express any preference for a lesser transaction. The court rejected the doctrine of sentencing entrapment and found that since the police conduct was unexceptional, there was no improper sentence manipulation. For that reason, the court also refused to address the claim of outrageous government conduct.id: 17678
Possession of a bong - which is used to smoke marijuana - is not illegal.In 1975, the state legislature decriminalized the possession of a device to smoking marijuana. The trial court found defendant violated the law by possessing two bongs -devices used for smoking marijuana. It reasoned that the possession of a device for smoke THC is still a crime and all marijuana contains THC. However, the legislature limited the meaning of THC in this context to synthetic THC. Thus, defendant did not violate the law.id: 17272
A person can "transport" methamphetamine by walking.Defendant walked away from a methamphetamine processing enterprise with three baggies in his jacket pocket. He argued the evidence did not support his conviction of transportation of methamphetamine under Health and Safety Code section 11379. According to defendant, the offense cannot be committed without the use of a vehicle. However, defendant's use of foot travel, rather than some other means of conveyance, to take the methamphetamine to whatever destination he intended to reach, does not negate the element of transportation. id: 17161
Program coordinator for drug court who conducted and supervised urine testing could testify as to test results at the revocation hearing.Defendant, at a probation revocation hearing argued a witness' testimony about the drug results was inadmissible hearsay and denied her due process of law. However, the witness was the program coordinator for the drug court. His job involved conducting and supervising urine testing. The witness was qualified to testify about the test results at the revocation hearing.id: 16676
Possession of valium is a misdemeanor under Business and Professions Code section 4060.Possession of valium without a prescription may properly be prosecuted as a misdemeanor under Business and Professions Code section 4060. Moreover, such a conviction does not conflict with the relevant provisions of the Health and Safety Code.id: 16370
Defendant "transported" methamphetamine when he carried it on his bike.Defendant was convicted of transporting a controlled substance under Health and Safety Code section 11379, subd.(a). He argued he did not "transport" methamphetamine because he used his bicycle to carry it. However, the term "transport" includes moving illegal drugs from one place to another, even by bicycle.id: 16369
Harvey rule does not apply to a determination of eligibility for a deferred entry of judgment.Defendant argued <i>People v. Harvey</i> (1979) 25 Cal.3d 754, precluded the use of circumstances giving ruse to a dismissed count when determining eligibility for a deferred entry of judgement under Penal Code sections 1000 - 1000.4. However, the <i>Harvey</i> rule does not apply to the determination of whether a defendant is eligible for a deferred entry of judgment.id: 15565
Manufacturing methamphetamine is not a strict liability offense.Defendant was arrested after leaving a clandestine laboratory which was set up to extract pseudoephedrine from cold tablets, a step in the process of manufacturing methamphetamine. The trial court prejudicially erred in instructing the jury that to be guilty of manufacturing methamphetamine in violation of Health and Safety Code section 11379.6, subdivision (a) it was not necessary for defendant to have been aware it was methamphetamine that was being manufactured via the extraction process. The crime must be interpreted to include as an element of the offense the accused's knowledge of the character of the substance being manufactured.id: 15566
Narcotics offender is required to register even absent a court order to do so.Health and Safety Code section 11590 imposes a duty on a qualifying narcotics offender to comply with its registration provisions but does not impose a concomitant duty on the sentencing court to require the offender to do so. Inasmuch as the court is under no obligation to order the offender to register, the omission of a narcotics offender registration requirement in the judgment does not result in the prosecuted "unauthorized sentence" which would require modification of the judgment.id: 15567
Section 654 did not preclude sentences for separate drug transportation offenses since there were separate objectives in that the drugs were to be sold to different customers.Defendant argued the trial court violated Penal Code section 654 by imposing sentences for both the transportation of methamphetamine conviction and the transportation of marijuana conviction. However, even though he transported both drugs in his car at the same time, evidence supported a reasonable inference that he had separate objectives in transporting the drugs in that he intended to sell them to different customers. Therefore, section 654 did not preclude conviction and imposition of sentence for both transportation offenses.id: 15569
Statute prohibiting illegal transport of drugs for sale to another county does not require proof that defendant intends to facilitate the drug sale in that county.Health and Safety Code section 11379, subdivision (b), makes it illegal to transport for sale specified controlled substances within this state from one county to another - noncontiguous county. Defendant argued the statute contains a requirement that a defendant who transports such substances must intend to facilitate their sale in the noncontiguous county. However, there is no such requirement in the statute and the trial court had no duty to so instruct.id: 15570
The crime of manufacturing methamphetamine requires that the defendant know the character of the substance being manufactured.Although a defendant may be convicted of the crime of manufacturing methamphetamine under Health and Safety Code section 11379.6, without proof that he intended to violate the law, his knowledge of the character of the substance being manufactured is a prerequisite to a conviction under that provision.id: 15571
The prosecutor need only show defendant possessed the drug with the intent that it be sold, either by defendant or by someone else.Defendant argued there was insufficient evidence for the jury to convict him of possession of a controlled substance with intent to sell it because there was no evidence of his specific intent to sell it personally. However, the prosecution need only show that the drugs are possessed with the specific intent that they be sold, regardless of whether the possessor intends to sell them personally.id: 15572
The trial court did not err in imposing separate sentences for the simultaneous possession of different drugs.Defendant was convicted of possession of heroin for sale and possession of cocaine for sale. He argued the trial court improperly imposed separate sentences for two drug offenses which involved essentially the same act. However, simultaneous possession of separate drugs may be punished separately without violating the prohibition against multiple punishment.id: 15574
Trial court lacked authority to impose search terms as a condition of eligibility for a drug treatment program.To be found eligible for a drug treatment program under Penal Code section 1000 a person must consent to various conditions. While the trial court could lawfully impose drug testing, the court lacked authority to require a defendant to submit to an unreasonable search and seizure.id: 15576
A person who attempts to commit a divertible offense is eligible for diversion on the same basis as one who commits the completed offense.Defendant was convicted of attempted possession of a controlled substance. The trial court denied defendant's diversion request on the ground that diversion is not available to one who attempts to commit a divertible offense. However, a person who attempts to commit a divertible offense is eligible for diversion on the same basis as one who commits the completed offense.id: 15556
Appellant did not constructively possess the rock cocaine that a dealer threw at him when police arrived.Appellant had been given $20 worth of bunk cocaine from the Cuban. When he returned to exchange the bunk for real rock cocaine or get his money back, the police arrived. The Cuban then threw a vial at appellant's chest which was found to contain rock cocaine. Contrary to the prosecutor's position, appellant never had constructive possession of the rock cocaine.id: 15557
CALJIC 12.06 failed to define the magnitude of defendant's burden of proving the affirmative defense of possession of the narcotics for purposes of disposal.Possession of narcotics for the purpose of disposal constitutes an affirmative defense. The defendant must prove the existence of the defense by a preponderance of the evidence. CALJIC 12.06, which sets forth the elements of defense does not suggest which party must meet the four conditions, and the burden which that party must meet to establish all of the conditions in order for the jury to find the defendant's possession was not unlawful and thus find the defendant not guilty. The failure of the instruction to define the magnitude of defendant's burden of proving the affirmative defense required reversal of his possession conviction.id: 15559
Contemporaneous possession of two drugs in prison constitutes one offense.Contemporaneous possession in a state prison of two or more discrete controlled substances (here methamphetamine and heroin) at the same location constitutes but one offense under Penal Code section 4573.6.id: 15560
Crime of manufacturing methamphetamine does not require the final stage of production be reached.Defendant was convicted of manufacturing methamphetamine. He argued there was insufficient evidence to show manufacturing was occurring on the premises because at the time of the arrest the process was in the initial or an intermediate phase. However, the evidence will support a conviction of manufacturing even where defendant is not engaged in completion of the final product.id: 15561
Driving methamphetamine 20 feet was sufficient "transportation" within the meaning of section 11379.Defendant was convicted of transporting methamphetamine. He argued the evidence was insufficient to support the conviction because he only drove his car about 20 feet and such "minimal movement" is not nearly enough to constitute "transportation" within the meaning of Health and Safety Code section 11379. However, the evidence need only show that the vehicle was moved while under defendant's control. Moreover, while the trial court erred by instructing the jury that some "practical difference between the locations" was required, the instruction increased the prosecution's burden and defendant may not complain of the error on appeal.id: 15562
Enhancement for dealing drugs near a school applies where school is closed but minors are on the grounds.Health and Safety Code section 11353.6, subdivision (b), creates a sentence enhancement applicable to certain narcotics offenses committed within 1000 feet of a school. The trial court did not err in instructing the jury that the provision applies to a person who sells drugs outside the school boundary while the school is closed but minors are on the school grounds. While the court erred in substituting the word "when" for "where" in the clause "where the offense occurs," the error was harmless and did not render the statute unconstitutionally vague.id: 15563
Evidence supported conviction for manufacturing PCP where defendant was found manufacturing a precursor, and he possessed other chemicals used to make the finished product.Defendant argued the evidence was insufficient to establish his participation in the manufacture of PCP, because the evidence only proved he operated a laboratory to produce piperidine, a precursor to PCP. However, defendant admitted that he was making "one of the chemicals for PCP." Chemicals used to make both piperidine and PCP were found in his garage. The jury was entitled to infer that he was manufacturing piperidine with the goal of producing PCP as the end product.id: 15564
Defendant was properly convicted of manufacturing methamphetamine on an aiding and abetting theory even without a showing that work was being performed while he was on the premises.The prosecution proceeded against defendant for manufacturing methamphetamine on a theory of aiding and abetting. Defendant argued the evidence was insufficient to support the conviction because an aider and abettor must assist the crime before or during its commission and no manufacturing was actually taking place when defendant was apprehended. However, the process of methamphetamine production can be interrupted at any time and a defendant can be properly convicted as an aider and abettor even without a showing that work was being actively performed while he was on the premises.id: 15311
Attempted possession charge was not preempted by the more specific solicitation provision where defendant took direct acts toward the commission of the possession.Defendant was charged with attempted possession of cocaine under Penal Code section 664 and Health and Safety Code section 11350. His arrest was the result of a reverse sting operation where undercover officers posed as dope dealers. The trial court granted the defense motion to dismiss which was based on the theory that the more specific statute of solicitation, Penal Code section 653f, subdivision (d) - preempted prosecution under the more general statutes charged. However, the attempted possession charge requires a "direct, unequivocal act" toward commission of the crime of possession. Defendant offered his car stereo and vest, while the other officer was allegedly retrieving the drugs. These acts took the case outside of the solicitation provision. Had defendant merely asked the officer to sell him the drugs, he would have only faced the misdemeanor solicitation charge. The order granting the motion to dismiss was reversed.id: 15158
Defendant had no right to appeal the denial of the suppression motion in light of the subsequent plea and the deferred entry of judgment.Following the denial of a suppression motion, defendant pled no contest to drug possession. Entry of judgment was deferred pursuant to Penal Code section 1000, et seq. and the court ordered a drug diversion program. Defendant had no right to appeal from the order denying the suppression motion in light of the plea and deferred entry of judgment.id: 14903
Prison guard was properly convicted of possessing alcohol in prison where he possessed and consumed alcohol purchased from a store rather than prison-made alcohol.Defendant, a prison guard, was convicted of possession of alcohol in prison. He argued that because his duties as a correctional officer required him to seize and thus possess alcohol, usually inmate manufactured alcohol, the prosecution was required to prove his possession was unauthorized. However, the evidence showed defendant possessed street alcohol (regular vodka and whiskey) as opposed to prison-made alcohol. Moreover, whatever authorization he might have had to possess the alcohol, he was not authorized to consume it.id: 14904
The trial court erred by failing to instruct that extraction of ephedrine without additional knowledge is insufficient to support a conviction of manufacturing methamphetamine.Defendant was convicted of manufacturing a controlled substance under Health and Safety Code section 11379.6. However, the trial court's instruction allowed the jury to convict based solely on his extraction of ephedrine. Ephedrine, while a precursor to methamphetamine, is not a controlled substance under the relevant statutes. Accordingly, to convict of manufacturing a controlled substance based on ephedrine extraction, the prosecution must prove defendant knew methamphetamine was being manufactured. Failing to instruct on this element was erroneous and in this case required reversal.id: 14905
Transitory possession of drugs defense is limited to brief period and does not apply where the drugs are possessed "solely for the purpose of disposal."In <i>People v. Mijares</i> (1971) 6 Cal.3d 415, the court held that under limited circumstances, momentary or transitory possession of narcotics for the sole purpose of disposing of it can constitute possession. The defense of transitory possession is limited to brief possession and should not be construed to suggest that possession of drugs solely for the purpose of disposal does not constitute unlawful possession.id: 14906
Pharmacist is not immune from illegal drug possession even where he did not take the drugs off the pharmacy premises.Defendant argued that pursuant to Business and Professions Code section 4230, a pharmacist is immune from prosecution for illegal possession of controlled substances, absent evidence he removed the drugs from the pharmacy premises. However, section 4230 does not confer blanket immunity on a pharmacist to possess controlled substances for any purpose on pharmacy premises.id: 10753
Police possession of the drugs prior to a reverse sting was not illegal where the drugs had not yet been ordered to be destroyed.Undercover officers sold drugs they possessed from another case to potential users. The court found the police activity violated Health and Safety Code Section 11473 which calls for destruction of all seized drugs after the prosecution. However, the statutory scheme leaves all such seized contraband in the hands of the seizing agency until such time as the contraband is ordered destroyed by the court. The police possession of the narcotics was not illegal. Moreover, there was no showing the cocaine sold by the officers was connected to a pending case and even if it were possession of the drugs was to be regained after the purchase and returned to the evidence locker. There was no impropriety.id: 10754
Possession of a large quantity of narcotics is insufficient to establish the crime of maintaining a place for sale or use of narcotics.Defendant was convicted of opening or maintaining a place for unlawfully selling or using a controlled substance (Health and Safety Code section 11366). Since there was evidence of only a single occasion on which contraband was possessed in the motel room, despite the quantity, the evidence was insufficient to support the conviction.id: 10755
Possession of cocaine for sale requires a finding of defendant's specific intent to sell rather than his knowledge that the drugs he possessed would eventually be sold.The court based its finding that defendant possessed cocaine for sale on defendant's knowledge that the rocks were to be sold. However, absent a finding defendant had the specific intent to sell, a true finding of possession for sale cannot be made.id: 10756
Possession of cocaine is not a necessarily included offense of possession of rock cocaine.Neither possession of cocaine within the meaning of Health and Safety Code section 11350 nor possession of cocaine for sale within the meaning of section 11351 are lesser necessarily included offenses of the charged offense of possession of rock (base) cocaine in violation of section 11351.5.id: 10757
Possession of narcotics for sale is not necessarily included in the offense of transportation of narcotics and conviction of both is proper.Defendant argued that she could not be convicted of both possession of cocaine for sale and transportation of cocaine when the possession is incidental to or a necessary part of the transportation. However, one can transport drugs without necessarily being in possession of the drugs. The offense of transportation thus can be committed without necessarily committing the offense of possession. Defendant was properly convicted of both transportation of cocaine and possession of cocaine for sale.id: 10758
Possession of shotguns was properly used to impose the upper term since it was transactionally related to the offense of cultivation of marijuana.Defendant argued the trial court erred in using his possession of two loaded shotguns as an aggravating factor resulting in the upper term for his conviction of cultivation of marijuana. However, the court properly used the weapon possession as an aggravating factor because the possession was transactionally related to the offense of cultivation of marijuana.id: 10759
Probation condition that defendant register as a drug offender was improper where defendant's offense was not enumerated in the registration statute.Defendant was convicted of possession of methamphetamine for sale pursuant to Health and Safety Code section 11378. As a condition of probation he was required to register with law enforcement officials as a narcotics offender under section 11590. However, that section by its terms does not require registration following a conviction for violating section 11378 and the probation condition was therefore improper.id: 10761
Prosecution does not have to prove lack of authorization for possession of a controlled substance in jail.Defendant was convicted of possession of a controlled substance in jail (Penal Code section 4573.6). He argued the prosecution failed to prove a necessary element of the charged crime, lack of authorization for possession of the substance. However, lack of authorization is not an element of the crime, but rather, authorization is a defense and the burden is on defendant. Moreover, any jail rule or specific authorization to possess methamphetamine in a jail facility would be authorizing a criminal act within the jail and such authorization would be facially invalid. There can be no authorized possession of methamphetamine.id: 10763
Registration requirement for a convicted marijuana dealer did not violate his right to privacy.Defendant was convicted of two drug offenses and as a condition of probation, the court required him to register with the local police or sheriff in any community in which he is domiciled pursuant to Health and Safety Code section 11590. He argued the requirement violated his constitutional right to privacy, specifically his right to be left alone. However, the registration requirement was reasonable given the amount of marijuana found (six and one-half pounds), the offense and that the offender presents a significant danger to society.id: 10764
Section 11366.4, subdivision (a) requires proof that the manufacturing which is unlawfully permitted in one's home must be for the purpose of sale or distribution.Appellant was convicted of knowingly making his home available for the manufacturing of a controlled substance for sale or distribution (Health and Safety Code section 11366.5, subdivision (a)). The prosecutor took the position that he only had to prove the drugs were manufactured at appellant's house and never sought to introduce evidence to suggest the manufacturers of the substance intended to sell or distribute it. The trial court refused the defense request to include in the instruction on the elements of section 11366.5 the requirement that the prohibited manufacturing be for sale or distribution. Refusal to instruct on an element of the offense required reversal and the double jeopardy clause prohibited retrial of this count.id: 10765
Specific intent to use the syringe to inject a controlled substance is not an element of section 4573.6.Defendant was convicted of possession of drug paraphernalia, namely a hypodermic syringe, while in jail or prison. (Penal Code section 4573.6.) Contrary to defendant's claim the trial court did not err in failing to instruct the jury that a specific intent to use the syringe to inject a controlled substance was an element of the crime. Moreover, posting the provisions of section 4573.6, outside of the detention center, likewise, was not an element of the crime, and the court did not err in failing to so instruct.id: 10766
The prosecution was not required to prove the cocaine base sold had a stimulant effect on the central nervous system.Defendant was convicted of selling cocaine base pursuant to Penal Code section 11352. He argued the evidence did not support what he claimed was an essential element of his conviction: namely, that the cocaine base he sold was capable of having a stimulant effect on the central nervous system. However, the prosecution was not required to prove the cocaine base sold was capable of having a stimulant effect on the central nervous system.id: 10768
The trial court did not err by instructing that a mistaken belief that the cocaine was marijuana was not a defense.Defendant was convicted of several offenses involving the possession and transportation of a large quantity of cocaine. He argued the trial court erred by instructing that a mistaken belief that the cocaine was marijuana was not a defense. However, cocaine and marijuana are both controlled substances although different code sections prohibit their possession and sale. Even if defendant thought he was trafficking exclusively in marijuana he had the requisite knowledge of both the presence and the controlled substance character of the cocaine to be convicted under the code sections applicable to cocaine.id: 10769
The trial court properly imposed a penalty assessment upon the imposed drug program fee.Defendant was convicted of transporting methamphetamine. He argued the trial court improperly imposed a penalty assessment of $255 on the drug program fee imposed pursuant to Health and Safety Code section 11372.7. However, section 11372.7 is a fine and/or a penalty to which the penalty assessment provisions of Penal Code section 1464 and Government Code section 76000 apply. The penalty assessment was mandatory and properly imposed.id: 10770
Undercover use of cocaine obtained from an unrelated criminal case did not invalidate the charge of possession.The undercover sale to respondent of cocaine which the police obtained from an unrelated criminal case was not improper for failure of the police to have previously destroyed the cocaine pursuant to Health and Safety Code sections 11473 and 11473.5. The cocaine was not distributed by the police with the intent that it would likely be consumed, but rather, police intended only to provide sufficient possession of the cocaine to establish an offense and then to recover the contraband.id: 10772
Ability to pay drug program fee may be based on ability to earn rather than current employment.A person who is convicted of Health and Safety Code offenses involving controlled substances shall be ordered to pay a drug program fee of up to $100 for each separate offense if the trial court determines the person has the ability to pay the fee. Ability to pay a drug program fee does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person's <i>ability to earn</i> where the person has no physical, mental, or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed.id: 10775
Reverse sting operation did not violate defendant's due process rights.Undercover officers conducted a reverse sting operation whereby they sold narcotics to those who approached them and then arrested the buyers for illegal possession of the drugs. Appellant argued the officers' use of the cocaine violated his right to due process. However, while the officers' use of cocaine was not legal, it did not violate defendant's due process rights. The source of the contraband is not an element of the crime charged - possession of cocaine. Moreover, defendant had no right to purchase only unrecycled street cocaine which had not been obtained from the police in another case.id: 10776
Evidence did not support conviction of making space available for the manufacture of methamphetamine where defendant had no knowledge the substance was being made to sell.Evidence did not support defendant's conviction of making space available for the manufacture of methamphetamine under Health and Safety Code section 11366.5, subdivision(a). The provision requires proof that the manufacturing which the owner allowed was for the purpose of sale. While there was evidence on the part of the manufacturers to sell or distribute the substance, there was a complete absence of evidence of any knowledge on the part of defendant that the substance was being manufactured for the purpose of sale or distribution.id: 10721
Evidence established defendant knew the cash came from drug trafficking given the packaging, the fact that the narcotics dog alerted, and the fact that defendant was untruthful about the source.Defendant argued the evidence did not support her conviction of possessing more than $100,000 in drug proceeds (Health and Safety Code section 11370.6). She argued the evidence did not show the money was from unlawful drug activities and that she knew it. However, a narcotics dog alerted to the money defendant deposited, it was seen in packages used by collectors of drug proceeds and defendant was untruthful about its source. She finally told the officer she assumed it was from narcotics trafficking. The same facts establish that she knew the money was from drug proceeds. Moreover, she took affirmative steps to conceal the source of the funds as she opened 13 bank accounts to ensure deposits less than the $10,000 reporting requirements.id: 10722
Evidence established possession of cocaine where co-defendant held undercover officer at gunpoint while defendant took the car keys and opened the trunk containing the cocaine.Defendants argued the evidence was insufficient to establish possession of cocaine because they never exercised control over the cocaine in the undercover officer's trunk. They claimed the transitory possession of the trunk key did not confer control over the trunk's contents. However, the evidence was not simply that defendant possessed the key to the car trunk. While co-defendant held the officer at gunpoint defendant took the key from the officer and opened the trunk. At that time, defendants were in constructive possession of the cocaine because it was immediately accessible to them in a place under their control.id: 10723
Evidence found in storage locker supported the conviction of manufacturing methamphetamine despite the absence of a piece of equipment and a reducing agent used in the manufacturing process.Defendant was convicted of manufacturing methamphetamine. He argued the evidence was insufficient to show that he was manufacturing methamphetamine because the storage locker searched by police did not contain a piece of equipment (a hygenator) and a reducing agent (alcohol) which were necessary to the final step of the manufacturing process. However, the cumulative nature of the evidence, including the contents of the locker which all taken together are only used in the manufacture of methamphetamine, the presence of chloropseudoephedrine, a substance which cannot be purchased and is used only in the manufacture of methamphetamine, and the odor emanating from the locker, provided substantial evidence that the manufacture of methamphetamine, an incremental and not instantaneous process, was in progress.id: 10724
Evidence of two scales, two sifters and cocaine bindles supported the determination that defendant was ineligible for diversion.Evidence supported the finding that defendant probably possessed the cocaine for sale <197> thereby making the offense nondivertible notwithstanding the insignificant quantity of contraband. While it is possible that a personal user might be found in possession of a scale and perhaps a sifter, here defendant had two each of these items, in addition to two cocaine bindles and two coin bags and three glass vials with white powder residue. This evidence was sufficient to support the ineligibility determination.id: 10725
Evidence supported a sale of cocaine under section 11352 notwithstanding the allegation of selling rock cocaine in the information.Defendant was charged by way of information with the sale of rock cocaine in violation of Health and Safety Code section 11352. He argued the evidence established that he sold cocaine not rock cocaine. However, the verdict form stated a verdict of guilty to selling a controlled substance in violation of section 11352 as charged in count one. Evidence established that defendant committed the offense charged notwithstanding the excess verbiage in the information regarding rock cocaine. Had the information alleged the sale of cocaine base, as distinguished from cocaine, the result would have been different.id: 10726
Evidence supported conviction of manufacturing methamphetamine where defendant rented his property for the manufacturing of the substance.Defendant argued that a conviction of manufacturing methamphetamine pursuant to Health and Safety Code section 11379.6, subdivision (a), as an aider and abettor renders that section unconstitutionally vague because a plain reading of the provision fails to give notice that renting space to a manufacturer is manufacturing. However, by making the space available for manufacturing, defendant facilitated the commission of the crime. He was paid to use the place to cook, and the manufacturers left their generators and some methamphetamine behind, indicating they had no intent to conceal their activities from defendant. Defendant permitted the manufacturing to take place on his property and the evidence supported his conviction.id: 10727
Evidence supported conviction of possessing and transporting cocaine where defendant was riding in a car containing $3 million dollars worth of cocaine.Defendant and Labrada drove to a house in their pickup truck and looked all around before they entered the house. Shortly thereafter they exited the house and drove away in a Mercury Marquis containing over 70 pounds of cocaine. Evidence supported defendant's conviction of possessing and transporting cocaine for sale. Expert testimony established the car had been modified as a load vehicle to transport drugs and the cocaine was loaded in such a manner that a delivery person would require assistance in unloading the vehicle. It is unlikely the people who knew what was in the car would allow someone not involved in drug trafficking to ride in a vehicle delivering cocaine worth $3 million. It was inferable that defendant went along to assist Labrada.id: 10728
Evidence supported conviction of sale or transportation of cocaine despite the absence of evidence regarding sale where the record did not show he was convicted solely on the sale theory.Defendant was charged with one count of selling or transporting cocaine (Health and Safety Code section 11352). The Court of Appeal reversed his conviction after finding insufficient evidence that he sold cocaine. The court based its decision on <i>People v. Green</i> (1980) 27 Cal.3d 1, which held that reversal is required if the conviction can be based on alternate legal theories some of which are correct and some incorrect and the record does not point out which theory was relied upon. However, the U.S. Supreme Court adopted the Griffin rule and determined that reversal was not required. (<i>Griffin v. United States</i> (1991) 502 U.S. 46). Under this rule if there are two possible grounds for the verdict, one reasonable and the other unreasonable, the court will assume, absent a contrary indication in the record that the jury based its verdict on the reasonable grounds. Although the prosecutor briefly argued defendant was guilty of selling cocaine he concentrated on the transportation theory. Reversal was improper where the record did not affirmatively demonstrate that the jury found defendant guilty solely on the sale theory.id: 10729
Evidence supported pharmacist's conviction of possessing controlled substances for sale where the drugs disappeared from the pharmacy without any records.The jury was entitled to conclude from the evidence that defendant possessed the four controlled substances for the purpose of distributing them outside the legitimate practice of his pharmaceutical business. The pharmacy ordered and received the drugs and defendant took possession of them. Moreover, the drugs disappeared from the pharmacy without a single record to account for their lawful distribution and without any report of a theft or burglary. Finally, it was undisputed that the drugs were of a kind rarely prescribed by physicians but in demand on the street, and that defendant was aware of such demand.id: 10730
Evidence supported Rastafarian type church member's intent to sell marijuana where it was given away to the congregation since defendant also accepted donations to cover the cost and kept amounts for personal use.Defendant was a member of a church which uses marijuana as a sacrament. He was convicted of possession of marijuana for sale and transportation of more than 28.5 grams. He argued evidence of intent to sell was insufficient because he testified that he intended to give it away, not sell it. However, evidence supported the conviction where defendant also testified it was his practice to accept donations to pay for the marijuana, and that he received a quantity of marijuana himself, over and above the amount he paid for with his own money, in return for providing it to the other members.id: 10731
Evidence supported the conviction for manufacturing PCP despite the absence of PCP.Appellants argued that since the manufacturing process was interrupted by the police before the final stage of production had been reached, they could only have been convicted of attempting to manufacture PCP and not manufacturing PCP within the meaning of Health and Safety Code section 11379.6. However, the ongoing and progressive making, assembly or creation of PCP from its component chemicals may, but does not necessarily by definition, include the culmination of the manufacturing process, the finished PCP product.id: 10732
Evidence supported the conviction of transporting methamphetamine where defendant shared access to the truck in which the drugs were found.Defendant was convicted of transporting methamphetamine. He argued the evidence was insufficient to support the verdict because he shared access to the truck in which the drugs were found and he disclaimed ownership when confronted by police. However, he apparently had as much control over the truck as anyone including the owner, he admitted to using methamphetamine which tended to link him to the drugs, and he seemed unusually agitated and nervous when officers saw him reach under the seat of the truck.id: 10733
Evidence supported the conviction of use of a minor to sell marijuana despite the lack of an agreement to compensate the minor.Appellant argued the evidence was insufficient to support his conviction of use of a minor to sell marijuana pursuant to Health and Safety Code section 11361, subdivision (a). He claimed that only employment of a minor is prohibited, not the use of a minor who is an independent contractor. Notwithstanding the lack of an agreement to compensate the minor, appellant used the minor to sell marijuana where, after a conversation with appellant, the minor brought the officer to appellant to complete the transaction.id: 10734
Evidence was insufficient to establish defendant possessed cocaine base as opposed to cocaine.While evidence was presented that powdered cocaine or cocaine hydrochloride could be converted to cocaine base or rock cocaine, there was no evidence that cocaine hydrochloride could not also appear in rock or chunk form. There was no testimony that physical appearance alone was a sufficient basis for the identification of a substance containing cocaine base as opposed to a substance containing cocaine as those terms were used in Health and Safety Code section 11054, subdivision (f)(1) and 11055, subdivision (b)(6). Therefore, while the evidence was sufficient to conclude defendant possessed some form of cocaine, it was insufficient to establish that he possessed cocaine base as charged.id: 10736
Forefeiture requires neither an arrest on drug-related charges nor probable cause to believe the property is forfeitable.An arrest on drug-related charges is not a prerequisite for a forfeiture of contraband or its fruits. Further, there need be no probable cause to believe the property is forfeitable when it is initially seized.id: 10737
Illegally prescribing drugs refers to a continuous course of conduct and no unanimity instruction was required.Doctor was charged with illegally prescribing controlled substances to his patients (Health and Safety Code section 11153.) He argued the court erred in failing to give sua sponte a unanimity instruction. However, section 11153 impliedly refers to a course of conduct. The criminal conduct was defendant's continuous practice of improperly prescribing controlled substances to his patients. The fact that there were two theories of guilt - prescribing drugs without a legitimate medical purpose or prescribing drugs to addicts - did not alter the conclusion. Because both theories were based upon the same evidence, no unanimity instruction was required.id: 10738
In a prosecution for possessing cocaine evidence of purity is not relevant to the issue of usability.In a prosecution for possession of cocaine, testimony as to the concentration of the cocaine within the sample is not relevant to the question whether the amount of the substance is sufficient to be used as a controlled substance.id: 10739
In a prosecution for receiving ephedrine the prosecutor bears the burden of proof that a permit is required.Defendant was convicted of receiving, without a permit, a substance from outside of California containing ephedrine which is barred from transfer under California law. She successfully argued the evidence failed to show that federal law bars transfer of the ephedrine she received. The People have the burden of proof that a permit was required by Health and Safety Code section 11106 for the substance received by defendant. The failure of proof on the issue required a reversal of the conviction.id: 10740
In a prosecution for manufacturing methamphetamine, the People need not prove the character of the substance being manufactured.Defendant was convicted of manufacturing methamphetamine in violation of Health and Safety Code section 11379.6. The jury was instructed with CALJIC 3.30 concerning general criminal intent. Defendant argued the jury should have been instructed that in order to prove the violation, defendant must have known that the substance he manufactured was a controlled substance under section 11379.6. However, so long as the product of the defendant's activity was methamphetamine as had been charged, the defendant is guilty, even if he did not know that methamphetamine would be that product.id: 10741
Incidental use of vehicle in a narcotic's sale justified the one year driver's license suspension.Defendant was charged with possession of methamphetamine for sale. He was properly subject to the one year driver's license suspension under Vehicle Code Section 13202, subdivision (a). While the vehicle in which he was travelling was only incidental to the offense, the added punishment was reasonably addressed to the dangers and criminal opportunities created by the ready mobility of contraband.id: 10742
Instruction on provision relating to possession of drug money does not negate burden of proof by requiring the defendant prove gainful employment.Defendant was convicted of possessing more than $100,000 in drug proceeds. She argued that Health and Safety Code section 11370.6 and CALJIC 12.37 unconstitutionally affected the burden of proof by negating the requirement of proof beyond a reasonable doubt and by requiring defendant to prove gainful employment. However, all the instruction does is direct the jury's attention to potentially relevant evidence. It does not limit the jury's inquiry to such evidence, does not require the jury to attach any particular weight to it, and does not limit the possible inferences to those pointing toward guilt. The gainful employment provision is simply a factor for the jury to consider in deciding whether the elements had been proved.id: 10743
Lack of authorization to possess contraband in prison is not an element of the offense.Defendant was convicted of possession of contraband within a state prison in violation of Penal Code section 4573.6. He argued the prosecution failed to prove a lack of authorization to possess the contraband. However, lack of authorization is not an element of the crime.id: 10744
Marijuana possession conviction did not violate defendant's right to freely exercise her religion.Defendant was convicted of possessing and transporting marijuana despite her claim of medical necessity in treating migraine headaches. She argued the convictions violate her right to freely exercise her religion. However, at no time did she assert, much less establish, that marijuana use is mandated or even substantially motivated by her religion.id: 10745
Mistake of age is not a defense to the charge of selling drugs to a minor.A defendant's mistake about the age of a person to whom he makes a drug sale is not a defense to the charge of furnishing a controlled substance to a minor under Health and Safety Code Section 11353.id: 10746
Neither the existence of a police controlled setting for the purchase nor the existence of an agreement to purchase the contraband are determinative of a finding of constructive possession.Defendant's arrest grew out of a controlled purchase during which he paid for but never received actual physical possession of the contraband. Under the circumstances he cannot be said to have constructively possessed the narcotics.id: 10747
Officer's testimony that appellant possessed rock cocaine was sufficient to support the conviction of possession of rock cocaine after sale.Appellant was convicted of possession of rock cocaine for sale under Health and Safety Code section 11351.5. He argued there was no substantial evidence the cocaine he possessed was base cocaine as required by the statute. However, the officer's testimony, introduced without objection, that appellant possessed rock cocaine and that rock cocaine is cocaine base - combined with the criminalist's testimony that the substance in question tested positive for cocaine - was sufficient to support the conviction.id: 10748
Only those who violate permit requirements can be charged with possession/sale of ephedrine in violation of section 11106, subdivision (f).Health and Safety Code section 11106, subdivision (f) which regulates the sale of ephedrine, does not impose a permit requirement on recipients of intrastate shipments. The provision is not triggered until there is a violation of a permit requirement under subdivision (a).id: 10749
Penal Code section 4573 does not proscribe smuggling a controlled substance into jail as long as the smuggler/inmate has a physician's prescription.Defendant smuggled drugs into jail. One drug was a controlled substance for which he held a physician's prescription. The other drug was not a controlled substance. He was convicted of violating Penal Code sections 4573 (smuggling a controlled substance into jail) and 4573.5 (smuggling a drug other than a controlled substance into jail). However, the conviction under section 4573 was reversed because that section does not proscribe smuggling a controlled substance into a jail as long as the smuggler/inmate has a physician's prescription.id: 10750
Person convicted of attempted possession is subject to the requirement regarding registration as a narcotics offender.The trial court ordered as one of the conditions of appellant's probation, that appellant register as a narcotics offender pursuant to Health and Safety Code section 11590. Appellant argued his offense, attempted possession, is not one of the enumerated offenses in the statute and therefore it was error for the trial court to order registration as a condition of probation. However, the court determined the Legislature intended to include attempts within the scope of section 11590, and that a person convicted of attempting to commit one of the listed offenses is subject to the registration requirement.id: 10751
A guilty plea on which sentence has not yet been imposed constitutes a conviction under section 11370.2, subdivision (c).Defendant argued that a guilty plea on which sentence has not yet been imposed, does not constitute a conviction for the enhancement under Health and Safety Code section 11370.2, subdivision (c). However, for purposes of this provision, conviction means ascertainment of guilt, which occurred in this case when defendant voluntarily entered his plea of guilty to the prior offense.id: 10691
A person may be convicted of possession of drugs even though he ingested the drug prior to his arrest.A person who possesses illegal drugs prior to ingesting them may be convicted of the offense of possessing those drugs. To rule otherwise would permit persons facing arrest for drug possession to avoid the charges merely by ingesting the drugs.id: 10692
A physician who sells anabolic steroids to body builders can be guilty of violating section 11379 which requires a legitimate medical purpose.After furnishing anabolic steroids to undercover officers posing as body builders, appellant was found to have violated Health and Safety Code section 11379, subdivision (a), which prohibits the sale of any controlled substance . . . which is not a narcotic drug . . . unless upon the prescription of a licensed physician. He argued that as a licensed physician his prescriptions to the officers were exempted from the ambit of the provision. However, a physician may be prosecuted under this provision if he or she prescribes and, pursuant to the prescription, sells a controlled substance without a legitimate medical purpose.id: 10693
Allegation restricting probation does not apply to transporting cocaine.The Penal Code section 1203.073, subdivision (b)(1), allegation (restricting probation) found true by the jury does not apply to transporting cocaine, the offense of which appellant was convicted. Subdivision (b)(1) applies only to the possession for sale of cocaine, of which appellant was acquitted, or to the sale of cocaine, of which there was no evidence implicating appellant.id: 10694
Appellant can be convicted of simple possession and transportation where execution of the sentence on the simple possession is stayed.Appellant argued his possession of base cocaine count was necessarily included within the greater offense of transportation of base cocaine and therefore must be stricken. Appellant was found guilty of transporting in an automobile the same base cocaine found in his possession. The appropriate procedure was not to invalidate the conviction of the lesser offense but to eliminate the effect of the judgment as to the lesser offense insofar as the penalty is concerned. The court properly eliminated the punitive consequences of the double conviction by staying execution of the sentence on the simple possession count.id: 10695
Circumstantial evidence established constructive possession of cocaine.Defendant had access to the bedrooms of the apartment (including the bedroom where the cocaine was found) and to areas within these rooms generally considered to be the domain of persons with possessory rights. Moreover, the fact that defendant's name appeared in a narcotics ledger next to an amount corresponding to the amount of cocaine discovered in the apartment was further evidence of his knowledge regarding the presence of the cocaine and his right to exercise dominion and control over it. Based on defendant's dominion and control, the jury could reasonably infer he had constructive possession of it.id: 10697
Cocaine hydrochloride is not the same as cocaine base and a reduction of the former was proper,Defendant was charged with possession of cocaine base for purposes of sale under Health and Safety Code section 11351.5. The evidence established that what he possessed was not cocaine base but rather cocaine hydrochloride. Because he did not object to the introduction of evidence of his possession of cocaine hydrochloride there was no due process denial in reducing the defendant's conviction to the lesser offense of possession of cocaine for sale under Health and Safety Code section 11351.id: 10698
Continuity of purpose is not an element of utilizing a fortified house to sell rock cocaine.Continuity of purpose is not an element of the crime of utilizing a for-tified house to sell rock cocaine under Health and Safety Code 11366.6, and the court did not err in refusing to so instruct. Moreover, even if continuity of purpose were an element, the expert testimony that the house was a rock house, the quantity of drugs and packaging materials present, and appellant's ongoing relationship with the residence sufficed to support finding of continuity of purpose.id: 10699
Convictions of possession for sale and simple possession based on the same evidence were improper.Simple possession of a controlled substance is a necessarily lesser included offense of possession for sale. Since appellant was convicted of possession for sale based on possession of the same contraband supporting the conviction for simple possession, the conviction for the lesser offense was reversed.id: 10700
Court did not err in failing to define transportation where defendant was charged with transporting methamphetamineDefendant was convicted of transportation of a controlled substance - methamphetamine in violation of Health and Safety Code section 11379, subd. (a). He argued the jury was incorrectly instructed concerning the meaning of the word transportation, in that the term must be construed to imply an intent, at the end of the transportation, to transfer possession. However, the term transportation is commonly understood and the court had no duty, absent a request, to so instruct.id: 10702
Court did not err in failing to instruct on simple possession as a lesser included offense of selling cocaine.Defendant was convicted of one count of selling cocaine and argued the court erred in failing to instruct on simple possession as a lesser included offense. However, simple possession is not a lesser included offense of selling or offering to sell as a conviction for sales does not require proof of possession. Moreover, the evidence established that defendant committed both offenses as he sold a portion of his inventory and had the balance on his person when arrested.id: 10703
Court did not prejudicially err in instructing that possession for sale requires knowledge that the drugs would be eventually sold by someone else.Defendant argued the trial court erred by instructing the jury that possession of cocaine for sale requires only knowledge that the drugs would be sold eventually by someone else. However, any error the trial court committed by injecting the concept of knowledge into the definition of intent was harmless. The emphasis in the juror's question prior to the instruction was whether a defendant must personally sell the substance, not whether knowledge was the requisite standard. Moreover, when instructing on conspiracy, the court told the jury that specific intent to commit possession with intent to sell was required and knowledge was not mentioned. The jury necessarily found defendant had the requisite specific intent.id: 10704
Court had no duty to instruct on voluntary intoxication in a prosecution for possession of narcotics.Appellant was convicted of possession of narcotics. He argued the trial court had a duty to instruct, sua sponte, on the defense of intoxication. The clear effect of the 1982 amendment to Penal Code section 22, was to limit evidence of voluntary intoxication to the issue of whether the defendant (a) actually formed a required specified intent . . . when a specific intent crime is charged. While possession of narcotics requires knowledge it is not a specific intent crime. Hence, under section 22, evidence of voluntary intoxication is no longer admissible to refute the mental state of knowledge.id: 10708
Court properly determined it lacked discretion to place defendant, who had a prior conviction of possession of methamphetamine for sale, on probation.Defendant pled guilty to transporting methamphetamine and possession of methamphetamine for sale, among other things and admitted a prior conviction. He argued the court erred in determining it lacked authority to place him on probation. However, the trial court properly determined Penal Code section 1203.07, subd. (1), eliminated its discretion under section 1385 to strike the prior conviction finding and place defendant on probation.id: 10709
Defendant need not be involved in fortification of house to be convicted of use of a fortified house to sell rock cocaine.Appellant was convicted of utilizing a building designed to suppress law enforcement entry in order to possess for the purpose of sale rock cocaine (Health and Safety Code 11366.6). The trial court did not err in refusing to allow argument by defense counsel that appellant could not be found guilty, because the house was not designed to suppress law enforcement entry. The statute is designed to prevent use of a fortified house, and a defendant cannot elude the statute by taking advantage of preexisting innocent fortifications.id: 10712
Defendant paid in non-cash benefits was properly convicted of possession of cocaine base for sale.The court did not err in instructing the jury that possession for the purpose of sale of cocaine based pursuant to Health and Safety Code section 11351.5 includes an exchange for favors, services, goods, or other non-cash benefits.id: 10713
Defendant was committed with probable cause after a reverse sting where the evidence showed defendant bought the drugs for his own use.Defendant was arrested for possession of cocaine after buying the drugs from an undercover officer. The information was set aside where the court found defendant had no dominion or control over the cocaine inasmuch as the officer never gave him uncontested possession of the cocaine. However, the order setting aside the information was reversed where the court found no evidence that defendant took possession for any purpose other than his own use.id: 10714
Defendant was not entitled to a pretrial judicial hearing to contest the prosecutor's determination that his offense was nondivertible.The prosecutor determined that defendant possessed cocaine for the purpose of selling it and therefore found the offense did not meet the eligibility requirements for diversion. Defendant was not entitled to a pretrial judicial hearing to contest the prosecutor's determination.id: 10715
Defendant was not entitled to an instruction on handling contraband for the purpose of abandonment where he exercised control over it for an extended period of time.Evidence established that defendant removed the methamphetamine and placed it in the front seat of his truck, separate from the chemicals and equipment. Later, when stopped by the deputy, defendant did not attempt to turn the methamphetamine over to the police but moved it from the seat of the truck to his pocket to conceal it from the deputy and retain possession of it. The trial court did not err in refusing his requested instruction that limited handling of contraband, such as for the purpose of abandonment, will not support a conviction for possession.id: 10716
Defendant was not entitled to petty theft instruction as a lesser related offense of selling a substance in lieu of cocaine.Defendant was convicted of selling a substance in lieu of the controlled substance cocaine in violation of Health and Safety Code section 11355. He had attempted to sell something resembling rock cocaine to an undercover officer. He argued the court erred in refusing his instructions on petty theft by false pretenses (Penal Code section 484) and distribution of an imitation controlled substance (Health and Safety Code section 11680), both misdemeanors which he urged were lesser related offenses under <i>People v. Geiger</i>, (1984) 35 Cal.3d 510. However, defendant was prosecuted for promoting the drug trade and not bilking an undercover officer out of $20.00. Therefore, the petty theft offense was not closely related. The instruction was not required for the drug offense because the lesser offense contained all the elements of the greater offense, plus an added scienter requirement. <i>Geiger</i> does not apply in this lesser offense situation.id: 10717
Defendant who possessed blotter paper like that containing LSD was properly convicted of possession of an imitation controlled substance.Defendant argued he was wrongfully convicted of possessing an imitation controlled substance under Health and Safety Code section 11680 because he only possessed blotter paper, which by itself is not an imitation controlled substance. However, a reasonable person would have believed the blotter paper contained LSD and therefore it was an imitation controlled substance. Moreover, defendant intended to represent that the paper contained LSD and sell it. Finally, LSD imitations are within the scope of section 11680.id: 10718
Enhancement for person who possesses drugs and has possessed them for sale in the past did not violate the double-the-base term limitation.Health and Safety Code section 11370.2(a) provides a three year sentence enhancement for persons convicted of section 11351 and having suffered a prior section 11372 conviction. The enhancement does not violate the double-the-base term limitation of Penal Code section 1170.1(g).id: 10720
$70 fine for possessing a controlled substance was unauthorized where defendant was convicted of sales.Defendant was convicted of selling cocaine in violation of Health and Safety Code section 11352, subdivision (a). As part of his sentence the court imposed a $70 fine pursuant to section 11350, subdivision (c). That provision allows for a $70 fine for anyone convicted of possession under section 11350, subdivision (a) or (b). Because defendant was convicted of sales under section 11352, subdivision (a) rather than possession under section 11350, the imposition of the fine was unauthorized.id: 10688
Defendant was properly convicted of both being under the influence and driving under the influence of methamphetamine.Defendant pled guilty to being under the influence of a controlled substance (Health and Safety Code section 11550, subd. (a)) and driving under the influence of a drug (Vehicle Code section 23152, subd. (a)). He argued that his being under the influence of methamphetamine was a necessarily included offense of driving under the influence of methamphetamine and thus his conviction of the lesser offense should be reversed. However, a statutory violation of the driving under the influence offense may occur without violating the under the influence offense. Moreover, in pleading guilty he admitted the factual underpinnings of the convictions. Thus, his contention the record did not demonstrate the existence of an adequate factual basis for the guilty plea had to fail.id: 10570
Defendant aided and abetted the sale of cocaine where his intent in introducing the parties was to facilitate his friend's purchase of cocaine and his friend turned and became the seller.Defendant introduced Caiello, who was looking to purchase cocaine, to an undercover officer, who supposedly had cocaine for sale. Defendant then left the room. Caiello eventually agreed to sell cocaine to the officer rather than buy from him. The evidence was sufficient to support defendant's conviction for aiding and abetting the sale of cocaine.id: 9622
Evidence supported the doctor's conviction of aiding and abetting his unlicensed assistant in prescribing drugs notwithstanding that the prescriptions may have been medically appropriate.Defendant, a licensed physician was convicted of aiding and abetting his unlicensed assistant in the prescribing and furnishing of controlled substances. Health and Safety Code section 11153 bars medical assistants from prescribing and dispensing controlled substances. That the challenged prescriptions may have been medically appropriate was of no help to the defendant.id: 9628
Statute prohibiting the manufacture of drugs on a person's property did not preclude a conviction for aiding and abetting the manufacture of methamphetamine.Defendant was convicted of aiding and abetting the manufacture of methamphetamine in violation of Health and Safety Code section 11379.6 because he permitted his ranch to be used as the location for a methamphetamine laboratory. He argued that Health and Safety Code section 11366.5, which prohibits a person from allowing the manufacture of controlled substances in a building under his management or control, precluded his conviction under section 11379.6 because the specific statute supersedes the general statute. However, this rule only applies when each element of the general statute corresponds to an element of the special statute or when it appears a violation of the specific statute will necessarily result in the violation of the general statute. Although the offenses are closely related, a violation of section 11366.5 does not necessarily or even commonly result in a violation of section 11379.6.id: 9638
A person who has been convicted of conspiracy to commit an offense listed in section 11590 can be properly required to register as a narcotics offender.Appellant argued that inasmuch as Penal Code section 182, subdivision (a)(1) (conspiracy) is not among the offenses enumerated in Health and Safety Code section 11590, the requirement that he register as a narcotics offender must be stricken. However, a person who has been convicted of conspiracy to commit an offense listed in section 11590 can also be properly required to register as a narcotics offender.id: 9564
Statute criminalizing possession of more than $100,000 in drug proceeds did not deny equal protection for failure to criminalize possession of a lesser amount.Defendant was convicted of possessing over $100,000 obtained from drug sales. (Health and Safety Code section 11370(b).) She argued the statute deprives her of equal protection under the law because persons possessing over $100,000 are subject to criminal prosecution while those possessing less are totally exempted from liability. The strict scrutiny standard was not utilized despite defendant's claim that the statute discriminates on the basis of wealth, a suspect classification. The failure to make possession of lesser amounts of money a misdemeanor did not render the statute unconstitutional. The statute is aimed at large scale drug operations so the Legislature rationally limited culpability to possessors of large amounts of cash. Showing precisely what would most effectively carry out the law was not required.id: 9536
Statute prohibiting possession of an imitation controlled substance is not vague as applied to defendant who possessed clean blotting paper.Defendant argued Health and Safety Code section 11680 is vague because a reasonable person will have considerable difficulty in determining if the statute is intended to prohibit someone from possessing clean blotting paper and passing it off as containing LSD. However, there is nothing vague or ambiguous about the statute which prohibits the possession of a substance that would lead a reasonable person to believe was a controlled substance.id: 9521
Distinction between attorneys and non-attorneys in provision regarding possession of money derived from narcotics trafficking is not unconstitutional.Appellant argued Health and Safety Code section 11370.6 was unconstitutional in that it impermissibly distinguishes between attorneys and non-attorneys in possession of more than $100,000 derived from traffic in narcotics and that the statute was therefore overbroad and vague. When prosecuting an attorney under subdivision (b) the People must prove the attorney fee was accepted with the intent to participate in the unlawful conduct described in subdivision (a) or to disguise or aid in disguising the source of the funds or nature of the criminal activity. Assuming the threshold for convicting an attorney is beyond the level for non-attorneys no fundamental liberty interest or suspect classification is involved. Furthermore, the instant distinction serves the legitimate state interest of avoiding any chilling effect upon the freedom to retain counsel of one's choice. The statute is not facially unconstitutional.id: 9480
Prosecution of possession for sale and transportation for a member of a church which uses marijuana as a sacrament did not violate his free exercise of religion.Defendant, who is a member of a church which uses marijuana as a sacrament, was convicted of possession for sale and transporting marijuana. He argued the court erred in rejecting his defense based on his right of free exercise of religion. However, defendant also supplied people who were not members of his church. Moreover, exempting him from state laws he violated would impair the interest of third parties - the citizens of California. Contrary to defendant's claims the laws under which he was prosecuted did not substantially burden his exercise of religion and were not required to be supported by a compelling state interest.id: 9493
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850