Southern California Defense Blog

California Health and Safety Code Section 11377 makes methamphetamine (“meth”) possession illegal. Meth Possession is a serious crime with serious penalties. If you are charged with meth possession, it is important that you speak to an experienced criminal defense attorney to get you the best possible result in your case.

Meth possession means that you had physical custody of the meth. You must also know the nature of meth as a controlled substance to be convicted. The amount of meth also has to be usable. If this can be proven, you may face a conviction for meth possession.

Having an experienced attorney can help you bring up defenses to your charge. There are many defenses to meth possession. The obvious one is that the defendant did not have physical control over the substance. Furthermore, the defendant cannot be convicted of possession of methamphetamine if he/she was not aware or had knowledge that the methamphetamine was in their presence or that it was a controlled substance.

There is also the momentary meth possession defense. Momentary possession requires that the defendant only possessed the substance for a momentary or transitory period; the possession of methamphetamine was for purposes of abandoning it, disposing of it or to destroy it.

Continue reading "I am Accused of Meth Possession - What Should I Do? - California Health and Safety Code Section 11377" »

California Health & Safety Code Section 11350 is a law that makes it illegal to possess various types of drugs as defined within the health and safety code.

In order to be convicted of possession of a controlled substance, the prosecution must prove that you unlawfully possessed a controlled substance, that you knew of its presence, that you knew of the substance’s nature or character as a controlled substance, what the controlled substance was, and that the quantity possessed was a usable amount. Possession means that a person has physical custody and control over the substance.

One of the many defenses to possession of a controlled substance is momentary/transitory possession. In order to successfully assert the defense of momentary/transitory possession, it must be shown that the defendant possessed the controlled substance only for a momentary or transitory period, that the defendant possessed the controlled substance in order to abandon, dispose of, or destroy it, and that the defendant did not intend to prevent law enforcement officials from obtaining the controlled substance. Of course, because every case is unique it is vital that you speak with an experienced criminal defense attorney about the particular facts of your case and any defense that may be available to you.

Continue reading "I am Accused of Possession of a Controlled Substance - What Should I Do? - California Health & Safety Code Section 11350" »

On October 19th, the United States Department of Justice issued a memorandum to the United States Attorneys in California detailing a shift in the Department’s policy regarding the investigation and prosecution of federal drug offenses in California. Although the memo is favorable to California’s marijuana laws, in no way does it permit the cultivation, possession, use or distribution of marijuana. The federal Controlled Substances Act continues to make those types of acts illegal.

Specifically, the memo dictates that “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana” should not be the Department’s main focus. In fact, the Justice Department will continue to prosecute those individuals or entities relying on state marijuana laws as a pretext for the illegal distribution of marijuana. Most importantly, the memo states that individuals who are in compliance with medical marijuana laws can still be prosecuted in federal court if it serves an important federal interest. Clearly, this exception leaves the door wide open to prosecute individuals regardless of the new Justice Department guidelines.

Continue reading "U.S. Justice Department Issues Memorandum Regarding State Marijuana Laws" »

The California appellate court has held that even though a vehicle does in fact have a temporary operating permit displayed somewhere on the vehicle, if the police officer does not see the temporary operating permit, and the vehicle does not have license plates, then the stop of the vehicle is legal. People v. Dotson ﴾3rd Dist., Nov. 30, 2009﴿ 2009 Cal. App. LEXIS 1904﴿.

In Dotson, the defendant, a convicted felon, was found to be in possession of a firearm, ammunition, and methamphetamine when a police officer stopped his vehicle. Although the vehicle had a temporary operating permit, an arresting officer had testified that at the time of the stop he saw that defendant's vehicle did not have license plates. In fact, in a dimly lit parking lot, the officer had a hard time identifying even the color of the vehicle. He saw that there were no license plates, so he made the stop. The defendant argued that the officer lacked reasonable suspicion to make an investigatory stop since the defendant’s car had a temporary operating permit attached to the rear window.

Continue reading "Police Can Legally Stop a Vehicle in California Even If a Temporary Operating Permit Attached To a Rear Window " »

Why Having an Experienced Drug Offense Attorney Can Mean the Difference Between Jail and Freedom

A recent California Court of Appeals decision, People v. Archer, held that, in medical marijuana possession cases, the jury must be informed that the patient has a right to possess an amount that is reasonably related to the patient’s current medical needs.

The California Legislature recently enacted Health and Safety Code section 11362.77 of Medical Marijuana Program Act (MMPA), which provides that the “legal limit” for possessing medical marijuana was eight ounces. However, before the legislatures enacted section 11362.77, the only relevant section as to how much marijuana a medical marijuana patient could possess (or cultivate) was section 11362.5 of the California Health and Safety Code. Under section 11362.5, subdivision (d) of the Heath and Safety Code, the only qualification concerning the amount of marijuana that a medical marijuana patient could possess (or cultivate) was that the marijuana be for the "personal medical purposes" of the patient. (section 11362.5, subd. (d).)

Therefore, assuming section 11362.77, subdivision (a) of the MMPA, is unconstitutional, as the parties jointly contended, the relevant law on the issue of the amount of marijuana Archer could possess would be section 11362.5 of the California Health and Safety Code and the cases interpreting that statute.

As noted, courts have interpreted this qualification to mean a reasonable amount: "[T]he quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs. What precisely are the 'patient's current medical needs' [is], of course . . . a factual question to be determined by [the jury]." (People v. Trippet, 56 Cal.App.4th at p. 1549.)

Here, the evidence in the record showed Archer was using about a half pound of medical marijuana each month in April 2006, mostly by ingesting it, and that he possessed about 1.72 pounds of marijuana—or about a three-month supply of medical marijuana—when police entered his home and confiscated it and his plants. There was no evidence Archer possessed the 1.72 pounds of marijuana for purposes other than for his own personal medical use.

Continue reading "Possession of Medical Marijuana is Limited to the Patient's Current Medical Needs" »

A recent California Court of Appeals decision in People v. Hirata held that a search warrant is invalid after the passing of a substantial period of time. In this case, the period of time was 84 days.

The defendant (Hirata) was charged with possessing drugs and being part of a drug conspiracy ring. Investigators had built substantial evidence against Hirata and a number of other co-conspirators. Armed with this information, the authorities put together an affidavit and were able to secure a search warrant for a number of the residences believed to be a part of the conspiracy. The search warrant was signed and put into effect on June 14; however, it was not executed (when the search actually took place) until September 4.

Continue reading "Good Faith Exception to the Exclusionary Rule Does Not Apply Where the Search Warrant is 84 Days Old - Penal Code Section 1538.5" »

The Issue of Possession of Marijuana for Personal Medical Needs, Versus, Possession of Marijuana for the Needs of Others

Defendant, Nathaniel Archer, was found guilty of cultivation of marijuana in violation of Health and Safety Code section 11358, a felony, and of simple possession of marijuana in violation of section 11357(a). On appeal, the parties were in agreement that the trial court erred when it included the numerical limits set forth in section 11362.77, subdivision (a) of the Medical Marijuana Program Act (MMPA) in instructing the jury regarding the amount of medical marijuana that Archer could lawfully possess and/or cultivate because this section unlawfully amends the Compassionate Use Act (section 11362.5) (CUA) passed by voters in 1996 as Proposition 215. On appeal, the parties disagreed as to whether the error was harmless.

Defendant contented that because he possessed and/or cultivated an amount of marijuana in excess of the numerical limits set forth in section 11362.77, subdivision (a), his convictions were not based on a determination of his medical marijuana needs of and at least two of his "patients" who had designated him as their "primary caregiver" within the meaning of section 11362.5, subdivision (e).

The People argued that because Defendant admitted growing marijuana for at least four other people, in addition to himself, and because as a matter of law he does not qualify as a primary caregiver for the only two qualified patients he identified at trial. The Defendant did not present any evidence to show he was the primary caregiver for any of them, including the two that testified on his behalf at trial. As such, the People argued that the instructional error was harmless beyond a reasonable doubt. The Court agreed.

Continue reading "A Common Legal Issue in the Context of Medical Marijuana Litigation" »

As a result of Operation Community Shield, law enforcement has arrested 1,785 gang members and associates around the country between March and September of this year. Of those arrested, approximately 300 were from the Los Angeles area. Gangs that were targeted in Los Angeles County during the sweep included the Avenues, 18th Street, Barrio Evil 13 and Mara Salvatrucha gangs. Charges against these alleged members ranged from drug dealing, drug trafficking and reentry after deportation to murder.

Virginia Kice, from Immigration and Customs Enforcement, stated that the majority of charges of those arrested in Los Angeles County were criminal while the rest were for immigration violations. The goal of Operation Community Shield is to disrupt a gang’s organization in Los Angeles County and throughout the nation by taking out its members with both criminal arrests and prosecution for immigration violations.

Continue reading "Gang Crackdown in LA" »

The Los Angeles Collective Association and the Green Oasis dispensary, which is made up of medical marijuana collectives, has filed a lawsuit against the city of Los Angeles’ moratorium that seeks to control the sale of medical marijuana. They argue that the moratorium is too vague and its extension into mid-March is in violation of state law.

Robert A. Kahn, an attorney representing the Los Angeles Collective Association and Green Oasis’ attorney , believes that the City Council’s failure to properly extend the ban and its extension past the state limit of 24 months make the moratorium legally unenforceable. The City Council’s Planning Committee has been working on an ordinance that would replace the moratorium; however, it is still months from completion. Nonetheless, the Los Angeles attorney’s office, the district attorney’s office and the Los Angeles Police Department have all emphasize that selling medical marijuana over the counter is illegal under California state law.

Continue reading "Lawsuit Filed in Attempt to Overturn City Council Decision to Limit Medical Marijuana Dispensaries" »

Why You Need a Good Drug Defense Attorney

The Drug Enforcement Agency (DEA) has a list of chemicals that it has placed on a watch list. The Chemical Diversion and Trafficking Act of 1988 imposed legal impediments to obtaining the chemicals necessary to manufacture drugs of abuse. The DEA, with the help of the State Department, monitors the flow of these chemicals over state and international borders.

Currently, there are over 22 chemicals and 27 named steroids that are on the FDA’s watch list. Possession of any one of these chemicals or steroids, whether willful or not, could lead to an investigation and ultimately an arrest. The problem is that these chemicals are readily available from any hardware or home improvement superstore and they can be used for other purposes, besides for making drugs. Thus, a perfectly legal purchase for a perfectly legal home improvement could end up in an arrest and federal drug charges.

Continue reading "Possession of Certain Chemicals Could Land You in Jail" »

In late September, Border Patrol Agents seized more than 15 pounds of crystal meth during a traffic stop on I-15 in Temecula, CA. It was reported by a U.S. Customs and Border protection news release that agents “spotted” a 23-year-old woman driving north in a Ford Focus near Winchester Road about 10:15 a.m. and pulled her over. A drug-sniffing dog was called out after the woman “provided inconsistent answers” to an agent’s questions. A subsequent search of the woman’s vehicle uncovered 18 bundles of crystal meth hidden in the dashboard, the release said. The woman, who apparently is pregnant, was turned over to a multi-agency drug task force.

There are so many questions raised by this news story. Clearly a pregnant woman who apparently was making cash as a drug “mule” is distressing in itself but, putting that aside, this story begs a number of legal questions. First, the release says that the woman was “spotted” driving north. Is that probable cause or reasonable suspicion to stop her vehicle? Was she “spotted” breaking a traffic law?

Another question is whether this was a “roving patrol”? It clearly wasn’t a stop made at a fixed checkpoint so it sounds like the practice of a “roving patrol” which the U.S. Supreme Court deemed unconstitutional back in 1973. While all the facts are unclear at this point, it is clear that this woman desperately needs an experienced Riverside drug defense attorney at her side.

Continue reading "Why You Need a Riverside Drug Defense Attorney" »

It has been well established that minors will consume alcohol before they are legally permitted to at 21. Lawmakers in California hope a new law will help deter minors from not only drinking, but from being drunk in public. As of 2009, the California Courts will impose a suspension or delay of driving privileges on minors who are convicted of being drunk in public.

California law states that any person, who is found to be under the influence of alcohol or drugs, is guilty of a misdemeanor. The penalties associated with a misdemeanor can be fines or jail time. In addition to these penalties, minors under the age of 21 will also have their license suspended for one year. If the minor has not yet received their driver’s license, the court will delay their ability to get a drivers license for a year.

Continue reading "California Law Seeks to Prevent Minors Drunk in Public" »

In California, there are 217 “problem-solving” courts. Many are Proposition 36 courts that treat non-violent but severely addicted drug offenders. Other courts are drug treatment courts for juvenile, parents in dependency court, and regular drug treatment court.

The idea behind these specialty courts was to “use the trauma of the moment to move individuals caught up into the system into treatment in hopes of breaking the addiction and transitioning them toward a less dangerous existence” reports California’s Daily Journal. However, such courts are not necessarily all they’re cracked out to be.

Reports indicate that money poured into these specialty courts could be used to prevent drug use and treat substance abusers before a crime is committed. Moreover, Prosecutors often offer “deals” to get drug abusers into these programs by offering the program in exchange for a guilty plea to a felony charge. However, upon completion of the program the felony often remains on the defendant’s record.

Continue reading "Are Treatment or Specialty Courts the Answer?" »

In Melendez-Diaz v. Massachusetts, the defendant was convicted of drug possession. 129 S.Ct. 2527 (2009). The conviction went all the way up to the Supreme Court of the United States. The Supreme Court reversed the defendant’s drug conviction because the trial court violated the defendant’s Sixth Amendment rights.

In Melendez, the trial court admitted the prosecutions certificates by laboratory analysts, stating that the material seized by police and connected to the defendant was cocaine of a certain quantity. When the trial court admitted the certificates, this prohibited the defense from being able to cross-examine the laboratory analysts who created the certificates. Because the defense was not able to cross-examine the witness on their procedures and policies, this violated the defendant’s Sixth Amendment right to confront the witnesses against him.

Continue reading "New Court Ruling Results in Drug Conviction Reversal: The Criminally Accused Have a Right to Confront the Witnesses Against Them - Part I " »

An officer with probable cause to search is not prevented from doing so by someone presenting a medical marijuana card or a medical marijuana prescription.

Various courts have held that, once the officer has probable cause, the officer is entitled to continue to search and investigate, and determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession.

Continue reading "Medical Marijuana Card Does Not Necessarily Protect Against Vehicle Search" »

Why You Need a Criminal Defense Attorney to Defend Your Rights

During the course of an ordinary traffic stop, an officer may detect clues of an illegal drug crime in California. These clues, while seemingly inconsequential, when considered in the aggregate, may provide the additional reasonable suspicion required to detain an individual for further investigation.

Generally, no single factor will justify further detention. Each individual factor, considered separately, may well have an innocent explanation, but still suggest illegal activity in the aggregate. United States v. Arvizu, 534 U.S. 266 (2002).

Continue reading "Inconsequential "Clues" Considered Together May Amount to Reasonable Suspicion of Criminal Activity" »

Wallin & Klarich Defense Attorneys Elaborate

To show that a suspect constructively possesses contraband and therefore may be arrested, an officer must have facts demonstrating a sufficient connection between the suspect and the drugs/contraband. This connection must be sufficient enough to infer that the suspect had both the power and intent to exercise dominion and control over the contraband.

A common probable cause issue in California drug crime arrests arises when drugs or other contraband are found in a room or vehicle occupied by multiple persons. Rarely does the question, "Who owns the dope?" result in a complete and entirely accurate answer.

Continue reading "Officers Must Have Facts Demonstrating a Sufficient Connection Between the Suspect and the Drugs to Find Possession" »

In a previous article, we began our discussion regarding Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, which commands that qualified individuals convicted of CA nonviolent drug possession offenses be sentenced to probation and narcotics treatment as an alternative to incarceration. Continued here are some additional valid points of interest for Proposition 36.

Other Ineligibility Factors
Even if the defendant is convicted of a qualifying offense, if he/she has been previously convicted of one or more “strike” priors under Sections 667(b)-(i) and 1170.12, they will be ineligible for Prop 36, unless they have remained free from prison custody for the past five years and have not committed any felony other than a nonviolent drug possession offense nor any misdemeanor involving physical injury or threat of physical injury to another person. Another statutory bar occurs when a person is convicted, in the same proceeding, of any felony or misdemeanor not related to the use of drugs.

The remaining statutory bars occur when the person uses a firearm while possessing or being under the influence of cocaine, heroin, methamphetamine or PCP; people who refuse drug treatment as a condition of a grant of probation and people who have twice previously received treatment under Prop 36 and have been found not to be amenable to any available drug treatment.

Continue reading "The Power of Prop 36: Are you Eligible? Part Two" »

In this article and one to follow, the Substance Abuse and Crime Prevention Act of 2000, also known as Prop 36, will be discussed. This complex and most interesting proposition requires that eligible people convicted of nonviolent drug possession offenses in California be sentenced to probation and narcotics treatment instead of incarceration.

In a Nutshell
Prop 36 is codified under Penal Code Section 1210. The law provides that a defendant convicted of a “nonviolent drug possession offense” must receive probation instead of incarceration. The court must order that the defendant participate in and complete a drug treatment program at least 12 months in length. If a defendant violates his or her Prop 36 probation, the determination of whether to impose a regular sentence depends on whether the violation is drug-related and whether it is the defendant’s first, second, or third violation. If the defendant successfully completes the treatment program, the court must dismiss the charge.

Eligible Offenses
Nonviolent drug possession offense means the unlawful personal use, possession for personal use or transportation for personal use of nearly all controlled substances, including cocaine, methamphetamine and marijuana. They may be either felonies or misdemeanors.

Continue reading "The Power of Prop 36: Are you Eligible? Part One" »

Why Hiring an Experienced Criminal Defense Firm Can Assure You Are Given Access to All Available Court Programs

Defendant, Oscar Armando Ochoa pled guilty to possessing cocaine after the trial court denied his motion to defer entry of judgment under penal code §1000. On appeal in California, Mr. Ochoa argued that the court erred in finding that his January 2006 conviction for possession of marijuana occurring more than two years before his current offense did not render him ineligible for deferred entry of judgment under penal code §1000.

The prosecution took the position that he was ineligible presumably because he was precluded from satisfying the condition that he “have no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense.” PC §1000 (a)(1).

The California Court of Appeal, Third Appellate District disagreed with the prosecution. It held that Mr. Ochoa’s previous conviction for marijuana possession should have been destroyed after two years as required by Health & Safety Code §11361.5 and §11361.7 (a). Therefore, the previous marijuana charge could not have been considered by the trial court in determining Mr. Ochoa’s eligibility for deferred entry of judgment pursuant to penal code §1000.

Continue reading "Marijuana Possession Conviction Occurring Before Current Offense Does Not Negate Eligibility for Deferred Entry of Judgment" »