11352. (a) Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes,administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, four, or five years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, six, or nine years.
This Health and Safety section covers a plethora of crimes involving illegal drugs. Specifically, the code section makes it illegal to transport, import, sell, supply, administer, or simply to give away a controlled substance.
Potential Punishment: As a felony, a conviction can result in three to five years in prison and up to $20,000 in fines. Alternatively it can receive a term of probation with a maximum of one year in jail. Enhanced sentences can be given for crimes involving transporting for sale across different county lines.
The prosecution must prove these elements under the legal standard “beyond a reasonable doubt” to obtain a guilty verdict:
(1) That the defendant actually or indicated that he/she would transport, import, provide, or sell a controlled substance.
(2) That the defendant knew the substance was illegal.
(3) Defendant's knowledge that it was present or within his control.
(4) That the substance at issue is indeed a controlled substance.
(5) That there was a sufficient amount of the narcotic to be used as a drug.
Explanation of the Law:
• “Selling” signifies an exchange of the drug for anything of value.
• “Transports” means that the defendant moved the illegal substance from one place to another regardless of how small of a distance.
• Transporting or an offer to transport does not need a showing of intent to distribute or sell. People v. Rogers (1971) 5 Cal.3d 129, 134 ;l95 Cal.Rptr. 601, 486 P.2d 129
• Transporting drugs can occur even if the defendant used a bicycle for means of transportation. People v. LaCross (2001) 91 Cal.App.4th 182.
• A person transporting drugs solely for personal use can receive a sentence consisting of probation and drug treatment pursuant to California Penal Code 1210(a). People v. Barasa (2002) 103 Cal.App.4th. Additional case law has given the presiding judge the authority to determine if the transportation was for personal use, instead of allowing the jury to make the determination.
• “Administering” means that the defendant applied the substance to the body of another or caused the person to ingest or otherwise use it. UnderPeople v. Label (9174) 43 Cal.App.3d 766, 770-771, a person cannot be charged with administering if they applied the drug only to themselves.
It is not required that the prosecutor show that the defendant knew exactly what illegal substance he/she possessed. It is sufficient that the defendant knew that the substance was some kind of illegal drug.
Element Three: The defendant does not need to directly handle the substance to take part in administering, transporting, selling or furnishing.
• A usable amount is something more than debris or residue. People v. Ruvalcaba (1993) 6 Cal.4th 62, 23 Cal.Rptr.2d 628, People v. Piper (1971) 19 Cal.App.3d 248. It must be enough for a person to use as intended (for drug effect purposes) but does not have to actually intoxicate the user.
• If the defendant is charged with transporting a drug, the usable amount requirement still applies. People v. Emmal (1998) 68 Cal.App.4th 1313,People v. Ormiston (2003) 105 Cal.App.4th 676.
• Sale of a drug does not require that it be a usable amount. People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522.
• In regard to administering, furnishing, providing (i.e. giving away) or importing a controlled substance; there is no definite answer (per case law) on whether a usable amount is required.
Lesser Included Offenses:
Defending against a California Health and Safety Code 11352 charge will require attacking the elements of the offense to hinder the prosecution's ability to prove the case against you. Some of the common defenses include:
• Police misconduct: police officers are required to investigate a crime within the authority granted to them under law. If police have stepped out of their authority in an attempt to arrest or charge a person, they may be liable for a civil rights lawsuit under USC 1983. To support such a lawsuit, an attorney can seek further information about past misconduct by the police officer(s) through a process called a Pitchess motion.
• No knowledge: Defense counsel can assert that the defendant did not have the requisite knowledge of the drug's presence, or of its status as an illegal substance.
• 4th Amendment Violations: The defense can argue that an illegal search and seizure occurred (which led to the discovery of the illegal drugs) in violation of the personal protections provided by the 4th Amendment of the U.S. Constitution.
• No intent: Where the prosecution has alleges that the defendant participated in an offer to perform one of the acts proscribed by this code, the defense can argue that the he/she did not actually have the “intent” to carry out such actions. This lack of intent can be based on an offer made out of fear, duress, or as part of a joke.
• Mistaken identity: A defense based on mistaken identity would assert that the defendant did not have anything to do with the illegal drug activity, and the police have identified the wrong person. For example, where a defendant is charged with intent to sell because drugs were found in a home shared by several people, but the defendant wasn't actually aware of or involved in the situation.
• Entrapment: an entrapment defense can be used where police caused an otherwise law abiding person to engage in illegal activities. Entrapment is a difficult defense to establish because it requires showing very extreme, coercive conduct on the part of law enforcement.