Orange County Drug Sales & Transportation Attorney

The actual language in California HSC Code §11352 specifically mentions “controlled substances.” Since only “controlled substances” can trigger the provision of this statute, it is important to know what those substances are. Below is a non-exhaustive list of substances that constitute “controlled substances” pursuant to Federal Law:

• Cocaine, and cocaine base
• Peyote
• GHB
• Opiates
• Certain prescription drugs including “Vicodin.”
• Heroin

An example of conduct that would be punishable under California HSC Code §11352 would be where a small-time drug pusher, provides another individual heroin in exchange for money. This satisfies the (1) Action involving illegal substance (sale) (2) Awareness of the substance; and (3) Awareness of the nature of the substance as an illegal substance.

As a threshold matter, an individual cannot be convicted for a violation of California HSC §11352 unless to elements are proven: (1) the individual had knowledge of the drug’s presence, and (2) the individual had knowledge that the nature of the substance was a “controlled substance.” If either of these is not shown, it is unnecessary to go any further. If however, the Prosecution has proven the previous two elements, it is necessary to proceed further into the elements necessary for a conviction under §11352.

While it is common sense, it is important to cover every aspect of the crime the Prosecution is attempting to convict you of. As such, it is important to clarify that “transporting” means moving an object from one point to another; the distance, and the mode are not relevant.

Just because the Prosecution can prove that you knew of the drug’s presence, you knew of the nature of the drug, and you transported the drug, the HSC Code §11352 requires another fact to be present to sustain a conviction; you must have had the intent to eventually sell the drug. This element is where the Prosecution often runs into trouble. Bear in mind, if the Prosecution cannot prove intent to sell, you are not off the hook; if they have proven everything else, they likely have you on a simple possession charge.

As you are probably aware at this point, the §11352 violation is really just a possession charge, which becomes much more severe if they can prove you were transporting it for the purpose of sale. As such, they must also show that you were transporting enough quantity of a controlled substance, for it to be used for that purpose. In another words, if you are driving and a have a bag of cocaine, that only has a crumb or two in it, you can’t be convicted either.

One of the key elements of a Healthy & Safety Code §11352 violation, is that the individual is offering the drug for sale, and has the actual intent to complete a sale.

You can still be charged and convicted under §11352, despite never having had personal control of the illegal substance; this is known as “constructive possession.” All that matters under a “constructive possession” theory is that the individual had control of the substance either personally or through another person. 

An example of this occurs when one person, orders another person to pick up a specific controlled substance, pack it, and send it through ground transportation for the purposes of selling it. Once the drug is sold, the person giving the orders will get paid. It doesn’t matter that they never personally touched, or even saw, the illegal substance. Since they had control, that is sufficient to obtain a conviction under HSC Code §11352.

Under California HSC Code §11352, it is a felony to transport and sell controlled substance. There are many possible penalties for a first time offender, including:

• Formal probation
• Either five (5), four (4), or (3) years incarceration under the California realignment program, or nine (9), six (6), or three (3) years incarceration if the Prosecution proves that you transported the illegal substance across two (2) or more California county lines.
• Up to twenty-thousand dollars ($20,000) in fines.

An individual will be ineligible for felony probation (formal probation) or a suspended sentence if the Prosecution can show any of the following:

• You were convicted of selling, or attempting to sell at least 14.25 grams of any substance containing heroin.
• You were convicted of selling, or attempting to sell, any amount of heroin, and you have one or more prior convictions under HSC Codes §§11352 (transportation for sale) or 11351 (possession of a controlled substance for sale).
• You were convicted under §11352 for selling, or attempting to sell cocaine base, methamphetamine, or cocaine and you have one of more prior convictions for selling, or attempting to sell any drug.

Drug trafficking near drug treatment facilities or homeless shelters.

You may face one (1) extra year in jail for if you are convicted under §11352, and the following facts are shown:

• The substance that forms the basis of your §11352 conviction was cocaine, cocaine base, or heroin.
• The location where you are convicted of trafficking occurred within one-thousand (1,000) feet of, or on the grounds of, a “detox facility”, a homeless shelter, or a drug treatment center.
• Sales or transportation of large quantities of heroin or cocaine.

If you were convicted under §11352, while transporting a “large” quantity of cocaine, cocaine base, or heroin, you may face an additional fine ranging from nearly one-million ($1,000,000) to eight-million ($8,000,000). Additionally, you will face severe penalties in the form of additional time in incarceration.

• If you were transporting above 1 kilogram, you will face an additional three (3) years in incarceration.
• If you were transporting above 4 kg, you will face an additional five (5) years in incarceration.
• If you were transporting above 10 kg, you will face an additional ten (10) years in incarceration.
• If you were transporting above 20 kg, you will face an additional fifteen (15) years in incarceration.
• If you were transporting above 40 kg, you will face an additional twenty (20) years in incarceration.
• If you were transporting above 80 kg, you will face an additional twenty-five (25) years in incarceration.

If have previous felony convictions, excluding felonies involving drugs for personal use, an individual who is convicted under 111352, will have an additional three (3) years per prior felony conviction tacked on to their current sentence.

You will likely face additional sentencing if the Prosecution can show that you were selling, administering, or just giving away a controlled substance to someone you knew: (1) was currently pregnant, (2) had been convicted of a violent felony previously; or (3) was currently being treated for a drug problem, or a mental health disorder.

Like many of the drug crimes, a conviction under California HSC Code §11352 is known as a “deportable offense” pursuant to federal immigration law. Thus, a conviction under §11352 could result in deportation, despite the existence of a completely legal immigration status. These consequences are extreme, and it is crucial that you have competent counsel representing you throughout the entire process. The attorneys at Orange County Criminal Attorney have death with “deportable offenses” on numerous occasions, and have the experience necessary to navigate through this ordeal and obtain a favorable result; namely, not being deported. If you are an immigrant and have been accused of a violation of §11352, contact an OCCA attorney immediately, it is imperative that competent counsel begin building your case at the earliest time possible. You can be deported if convicted, even if the immigration status was perfectly legal.

There is a distinct offense under California HSC Code §11353 if a child is involved. This statute is triggered if either of the following is true: 
You employed, or used a minor (an individual under the age of 18) to transport, sell, give away, make ready for sale, or to peddle the drug; or 

You sold, offered to sell, gave away, or administered a controlled substance to a minor.

A conviction pursuant to §11353 carries stiffer penalties ranging from three (3) to nine (9) years, depending on the age of the minor, and the nature of your conduct. You will be sentenced to an additional two (2) years if either of the following is shown:

The illegal substance involving a minor was cocaine, cocaine base, or heroin; or

The conduct serving as the basis for the §11353 conviction occurred within one-thousand (1,000) feet of a place of worship, a school, or anywhere else where minors are frequently present.

Further, an enhanced sentence ranging from one (1) to three (3) years of incarceration will be added on if the person convicted of the crime is four (4) years, or more, older than the minor.

As mentioned above, a conviction under California HSC Code §11352 is a felony in California. A felony conviction will appear on a criminal background check. Having prior convictions can impact your life in a number of ways. First, many employers routinely conduct background checks on potential employees, a felony conviction for the sale, and transportation, of illegal substances could deter potential employers from hiring you. Next, many crimes provide enhanced sentencing for individuals who are convicted, and have prior convictions; §11352 is one of several crimes that typically form the basis for enhanced sentencing. Finally, as mentioned above, a §11352 conviction is a “deportable offense” pursuant to federal immigration law; this means even if your immigration status is valid, you could still face deportation simply because you were convicted of violating §11352. Orange County Criminal attorney has ample experience defending our clients in Orange County. Our relationship with local prosecutors over years of criminal defense has allowed us to build rapport with the Prosecution. This is not to say we will get you preferential treatment because of our relationship, it simply means that Orange County Prosecutors are aware that we fight for our clients, and only make reasonable requests; this may go a long way in aiding you in avoiding some of the more costly penalties of this crime. Further, our OCCA attorneys are skilled in trial litigation techniques, and will advocate your case to a jury in the most persuasive manner possible.

There are many defenses an OCCA attorney can advocate for you, in effort to convince the jury to return a verdict of “not guilty.”

• Illegal search and seizure
• Detaining, and searching, you without probable cause
• Police Misconduct
• Entrapment
• You didn’t have the requisite knowledge
• You didn’t know the substance was there.
• You didn’t know you were transporting an illegal substance.
• You did not intend to sell the substance you were transporting.