Sentencing Enhancement: Location and a Methamphetamine Charge

Certain factors known as sentencing enhancements can significantly increase your punishment in a California methamphetamine case. The location of the alleged criminal activity is one possible sentencing enhancement in a meth case.

If you’re facing a methamphetamine charge in California, you want an attorney on your side who will do everything possible to minimize or even eliminate negative repercussions. Experienced California defense attorneys from The Kavinoky Law Firm is well-versed in the latest defense techniques and will fight aggressively to protect your rights.

The prosecutor in your California methamphetamine case must prove both the underlying drug charge and the sentencing enhancement beyond a reasonable doubt in order for you to receive additional punishment. You can’t be convicted of a sentencing enhancement unless you’re found guilty of the underlying charge.

California determinate sentencing law calls for one of three prison terms in felony cases — the lower term, the middle term and the upper term, expressed in months or years. The sentence that’s applied after a conviction depends on aggravating and mitigating factors — issues that prompt harshness or leniency — and the facts of the case.

The following location sentencing enhancements can be filed in a California methamphetamine case:

Section Number Charge Sentence 11366 Maintaining a place for sale or use 16-2-3 11366.5a Rents or makes available 16-2-3 for manufacture or distribution 11366.6 Using a fortified location to possess for sale, sell, or manufacture 3-4-5 11366.5b Derive excessive profit and allow to be fortified 2-3-4 11353.6 Possess for sale, sell or manufacture upon school grounds or within 1,000 feet of school (in a public place, or place legally open to minors), while school was in session or while children were using the school facility 3-4-5 11379b Transports for sale to non-contiguous county 3-6-9 11380.5 Possession for sale or sale at public park or ocean-front beach if drug-free zone (includes library, pool, youth center) Add one year

 

11380.1a1 If 11380 and offense occurs upon grounds of playground, church, childcare, pool, when open or when minors using the facility Add one year 11380.1a2 If 11380 and offense occurs upon grounds of, or within 1,000 feet of school in session or when minors using facility Add two years

California has declared that all activities related to marijuana (with the exception of those that fall under the state’s medical marijuana laws) are illegal and will therefore be criminally prosecuted. Most of these offenses carry severe penalties, which may include drug treatment or education programs, jail or prison sentences and fines. In an effort to protect public health and safety, the legislature has also declared it a crime to sell, furnish, transport, administer or give away a substance that one falsely represents is marijuana and consequently imposes the same penalties on an individual convicted of this offense. As a result, when an individual is accused of this offense, he or she should immediately contact a California defense lawyer who has mastered the laws and defenses that regulate marijuana in this state.

According to California’s Health and Safety Code, every person who agrees, consents or in any manner offers to unlawfully sell, furnish, transport, administer or give away marijuana to another or who offers, arranges or negotiates to have marijuana unlawfully sold, delivered, transported, furnished, administered or given to another and who then sells, delivers, furnishes, transports, administers or gives or offers, arranges or negotiates to have sold, delivered, transported, furnished, administered or given to another any other liquid, substance or material in lieu of the marijuana faces a misdemeanor, punishable by up to one year in the county jail or a felony, punishable by imprisonment in the state prison.

This type of charge requires the skill and experience of a criminal attorney who regularly practices this area of the law and who knows the defenses that will successfully protect his or her client from the penalties associated with this offense. Because this charge is a bit unusual, in that an illicit drug is not necessarily involved in the transaction, defending it calls for the knowledge, creativity and insight that only a California drug crime defense lawyer possesses. He or she must employ the defenses that typically apply to offenses where marijuana is involved, such as illegal search and seizure and lack of intent, which could still apply to this type of situation.

The unsurpassed criminal defense lawyers at The Kavinoky Law Firm are here to help. They receive on-going training and education with respect to California’s drug laws, the ever-changing policies that serve as the basis for them and the many defenses that apply to these laws, giving them a leg up on the competition when it comes to cutting-edge trial strategies and procedural tactics. With law offices throughout the state, including several in and around Los Angeles, they are conveniently located for anyone in need of an exceptional California drug crime defense attorney. For the most trusted legal advice and outstanding representation, contact The Kavinoky Law Firm today for a free case evaluation.

Cocaine Charges Involving Minors

California law allows for numerous sentencing enhancements to be added to a cocaine charge. One possible sentencing enhancement in a California powder cocaine case stems from the involvement of minors in the alleged drug activity. If you’re facing a California cocaine charge with a sentencing enhancement involving minors, you face serious repercussions. Skilled California defense attorneys from The Kavinoky Law Firm can review your case and begin planning a strategic defense.

The court cannot impose the additional punishment of a sentencing enhancement unless the prosecutor proves both the underlying drug charge and the enhancement beyond a reasonable doubt. You cannot be punished for a sentencing enhancement if you’re not convicted of the underlying charge.

California’s determinate sentencing laws specify the punishment for felonies and certain sentencing enhancements as a lower, middle or upper term, usually expressed in years. Aggravating or mitigating factors — information that prompts the judge to treat you more harshly or leniently — help the judge decide which sentence to impose.

The following sentencing enhancements can be filed in a California powder cocaine case involving minors:

Code Section Enhancement Punishment 11353 Induce minor to possess, possess for sale, sell, etc. OR hire minor to sell OR sell to minor 3-6-9 11353.1(a)(1) Violation of 11353 at a church, youth center, day care, pool, etc. Add one year 11353.1(a)(2) Violation of 11353 on or near school grounds Add two years 11353.1(a)(3) 11353 with minor four years younger than defendant Add full 1-2-3 11370b 11353 (sale) no probation, no suspension, no discretion PC 1170.72 11353, 11353.5, 11353.7, 11354, 11361, 11380 or 11353.1(a)(3), 11353.6, or 11380.1(a)(3) and the minor is younger than 12 Aggravating circumstance for sentencing

Powder cocaine cases involving minors are treated extremely seriously, so you need a top defense lawyer aggressively defending your case. Skilled California defense attorneys from The Kavinoky Law Firm are ready to review your cocaine case and help you determine your next step. Please contact an experienced California drug defense lawyer today at 1.800.NO.CUFFS for a free consultation.

Patients and caregivers

California has legalized medical marijuana use, cultivation and distribution for those who are seriously ill and in need of the drug (so long as they have a doctor’s recommendation or prescription for it) and for their primary caregivers. These laws are detailed in Proposition 215 – also known as the Compassionate Use Act – and Senate Bill 420. While California has legalized marijuana for medicinal purposes, any use of the drug is still prohibited by federal law. As a result, an individual living in California who has the right to use, grow or distribute medical marijuana may still be brought up on federal charges. It should also be noted that such an individual may still be arrested in California by his or her local police department, as law enforcement is quick to arrest those who have any dealings with this drug. These are just a few of the reasons why it is necessary for an individual who has been arrested for any activity dealing with marijuana to contact an experienced criminal defense lawyer who specializes in drug offenses.

SB420 expands the Compassionate Use Act to allow caregivers to have more than one patient in their home county but still restricts caregivers to one patient if their patient lives out of their county. The law protects qualified patients, patients with identification cards and their primary caregivers from prosecution for using, transporting or processing small amounts of medical marijuana and makes it more difficult for prosecutors to charge them with intent to sell. As previously mentioned, law enforcement officials may nonetheless arrest an individual who participates in these activities, but the law is designed to protect these individuals, so long as they follow the rules that are associated with its use and growth. As for possession or growth, a patient or his or her caregiver may possess or grow up to eight ounces of dried bud or conversion (not leaf, seeds or stems) and up to six mature or twelve immature plants unless a doctor or the community have authorized more.

Qualified patients are those who have a doctor’s permission to use marijuana for medical purposes. They are entitled to possess and cultivate marijuana, so long as it is in accordance with a doctor’s recommendation. Persons with an identification card hold government issued cards that entitle them to the same protections as qualified patients, but in exchange for the card, the rules regarding the marijuana use are more strictly regulated. Primary caregivers are persons, designated by a qualified patient or by a person with an identification card, who have consistently assumed responsibility for the housing, health or safety of that patient. Primary caregivers must be at least 18 years old (unless they are the parents of a minor child who is a qualified patient or a person with an identification card or the caregiver is otherwise entitled to make legal medical decisions) and may be private caretakers if so designated by a patient, a licensed clinic or health care facility, a residential care facility for the elderly, a hospice or a licensed home health agency.

These definitions and law apply to California state law. Cities and counties can adopt and enact their own legislation that regulates medicinal marijuana use, possession and cultivation to supplement these existing laws. As mentioned above, current law only permits a patient or caregiver to possess or grow up to eight ounces of dried bud or conversion (not leaf, seeds or stems) and up to six mature or twelve immature plants. Depending on where one lives, the local citizens or lawmakers of that city or county may have expanded those amounts.

The bottom line is that although California has legalized the use of medical marijuana, the laws and their enforcement are still flawed. The outstanding criminal attorneys at The Kavinoky Law Firm are here to help. They have mastered the area of drug crime defense and know how to effectively convey a medical marijuana defense to judges and jurors. For unsurpassed representation, contact them today for a free consultation.

Personal possession of marijuana – illegal searches and seizures

Possession of marijuana for personal use may be charged as either a misdemeanor or a felony in California, depending on the circumstances under which the drug was discovered. While the penalties for this offense aren’t as severe as possessing marijuana for sale, they can still be serious, which is why an individual accused of this offense should contact a criminal attorney who understands this area of the law and all of the defenses that are applicable to it.

An illegal search and/or seizure will be one of the most useful defenses if properly argued and proven, as Constitutional violations can result in the exclusion of incriminating evidence and a dismissal of one’s criminal charges. Because this defense requires a thorough understanding of both California and federal laws, only a skilled criminal defense lawyer should attempt to present this type of evidence.

The Fourth Amendment to the United States Constitution protects an individual against unreasonable searches and seizures of his or her person or property. This law prohibits unreasonable invasions of privacy, which basically means that police must have a warrant before conducting a search and that police must have probable cause to believe that an individual either possesses something illegal or is involved in illegal activity before stopping that person. It must be noted that a “search” doesn’t technically take place unless the individual being searched had a “reasonable expectation of privacy”. For example, if the police saw a marijuana cigarette coming out of someone’s pocket, that wouldn’t qualify as a search. A search would take place, however, if the police had to look inside that person’s bedroom dresser to find that same cigarette. Because a “search” didn’t take place in the first scenario, a warrant would be unnecessary.

Most personal possession of marijuana cases involve an arrest and evidence that resulted from a search and seizure. When the police suspect that an individual possesses marijuana, a search may involve an inspection of that individual, his or her surroundings and/or his or her property in order to locate all of the drugs. If found, a seizure refers to the confiscation of the marijuana and/or to taking the individual possessing the marijuana into custody. Generally speaking, if the seizure is invalid it is because it was preceded by an invalid search.

Both persons and property may legitimately be searched and seized by the police (either with or without a warrant), as long as circumstances justified the officers actions. If, however, law enforcement act without reasonable or “probable cause” or exceed their Constitutional limitations, their searches and seizures may be declared invalid and any evidence that they subsequently retrieved will be excluded from one’s case. An experienced California drug crime defense attorney will meticulously review a client’s file to see if the arresting law enforcement agency violated his or her client’s Constitutional rights in any way.

The outstanding attorneys at The Kavinoky Law Firm have mastered the laws (both state and federal) that are relevant to California drug offenses. When examining a personal possession case, they know how to immediately spot an illegal search and/or seizure and how to effectively convey this type of defense to the judge and jury. They are dedicated to protecting the rights of their clients and will aggressively pursue acquittals when they believe that illegal searches and/or seizures have taken place and where acquittals aren’t possible, they know the most effective arguments to convince a judge to impose alternative sentencing that will permit their client’s convicted of possessing marijuana for personal use to receive treatment instead of a jail sentence. For questions about illegal searches and seizures or the many other defenses that are applicable to a possession charge, contact The Kavinoky Law Firm today for a free consultation and for unsurpassed legal representation.

The vast majority of criminal offenses are prosecuted in state superior courts. In California, many offenses fall under the jurisdiction of state courts, including most DUI / DWI offenses, drug crimes, domestic violence offenses, assaults, sex crimes, and homicides. However, certain crimes are prosecuted in federal court. Below are examples of Federal Crimes.

Federal crimes are, by definition, serious offenses that carry severe consequences, so it’s critical to have a top defense lawyer fighting for your rights. If you’re accused of committing a federal crime in Los Angeles, Riverside, San Bernardino, San Diego, Orange or Ventura counties, or anywhere in California, you need expert legal help. The experienced California Federal Crimes defense attorneys of The Kavinoky Law Firm will fight aggressively for your rights in federal court and work to shield you from any adverse repercussions.

There are several factors that determine whether an offense will be prosecuted in state or federal court. The first is the nature of the offense itself. Tax evasion and mail fraud, fall under the exclusive control of the federal government and thus will be pursued as a federal offense.

Other offenses that would normally be pursued in state courts are prosecuted as federal crimes because the defendant is alleged to have crossed state lines in the commission of the offense. Offenses such as kidnapping, murder, rape and child molestation are examples of crimes that can be pursued in federal court if, for example, the defendant is accused of traveling from California to another state during the commission of the crime.

Drug trafficking is commonly pursued as a federal crime under the authority of the Commerce Clause of the U.S. Constitution. Federal drug offenses generally carry far greater repercussions than the same offenses pursued in state courts.

Any offense that is committed in a location under the exclusive control of the federal government will also be pursued in federal courts. The District of Columbia, national parks, military bases, and U.S. territories such as Puerto Rico and Guam, are examples of locations where even relatively minor offenses such as DUI / DWI, will be pursued as federal crimes. Also, any offense committed in a federal courthouse or prison or aboard an aircraft or oceangoing vessel will be prosecuted in federal courts.

Federal crimes often carry far more severe consequences than similar offenses prosecuted in state courts. Also, if you are sentenced to federal prison, you may be sent to a facility much farther away from your home than a defendant sentenced to state prison.

Fortunately, it’s possible to aggressively fight federal criminal charges and create reasonable doubt of your guilt. The experienced California Federal Criminal defense attorneys of The Kavinoky Law Firm have the skills needed to effectively fight your federal charges and protect your rights. To learn more about aggressive defenses to federal crimes in California, contact us today for a free consultation.

California Methamphetamine Charges

California drug charges for methamphetamines are extremely strict. So if you’re caught using, possessing, selling or manufacturing meth you face harsh repercussions according to the California drug laws. Fortunately, it’s possible to aggressively fight a California meth charge. Skilled California defense attorneys from The Kavinoky Law Firm are ready to review your case and begin developing a strong defense strategy to fight your California drug charge.

Methamphetamine is a schedule II drug under California Health & Safety Code section 11055 (d) (2)). Some offenses can be charged as either misdemeanors or felonies. California drug laws have a complex sentencing structure when it comes to felonies that allows for a lower term, a middle term and an upper term. The sentence is determined by the facts of the case and aggravating and mitigating factors — issues that would prompt the court to treat you more harshly or more leniently.

One or more of the following meth charges can be brought in a California methamphetamine case:

Section number Charge Sentence (in months or years) 11377 Possession of methamphetamine Misdemeanor or 16-2-3 11378 Possession for sale 16-2-3 11379 Sale (transport, import, furnish, administer, give away or offers) 2-3-4 11379.6 Manufacturing 3-5-7 plus $50,000 11382 Agrees to sell then sells another substance in lieu Misdemeanor or 16-2-3 of 11383 a,c Possession of precursor chemicals with intent to manufacture 2-4-6 11366.8a Possess or use false compartment in vehicle to store or transport Misdemeanor or 16-2-3 11366.8b Design or construct false compartment in vehicle to store or transport 16-2-3 11401 Analog of methamphetamine (controlled substance) (i.e. substantially similar chemical structure or effect) PC 182 a1 Conspiracy to do any of the above (substantive charge) 11532 Loitering in a public place with intent to commit a narcotics offense Misdemeanor PC 1170.74 Meth in crystalline form is an aggravating sentencing factor

In addition to the methamphetamine charges listed above, there are a number of sentencing enhancements that can be added in a California methamphetamine case that can greatly increase the potential punishment. The possible sentencing enhancements in a California meth case include weight enhancements, prior convictions, firearms, certain locations and minors. This is where the defense attorneys from the Kavinoky Law Firm can help fight your meth charge.

Heroin Offense

Heroin is a Schedule I drug under California Health and Safety Code section 11054 (c) (11)), and is illegal to possess, sell, possess for sale, etc. Violations of these laws are charged as felonies and a conviction can result in significant prison time.

If you’ve been charged with a California heroin offense, you need a qualified drug lawyer fighting for your rights and freedom. An experienced California drug lawyer from The Kavinoky Law Firm is skilled in every aspect of fighting heroin charges.

In addition to the underlying drug charges that can be brought in a California heroin case, there are a number of sentencing enhancements that can add years to your prison sentence if proven. The sentencing enhancements that can be added to a California heroin case include weight enhancements, prior convictions, guns and firearms enhancements, locations and minors.

California heroin charges bring extremely harsh consequences, but a skilled drug defense lawyer has strategies to fight these allegations. One potentially powerful tool in a drug defense attorney’s arsenal is a motion to suppress evidence. If investigators violated your rights when gathering evidence against you in your heroin case, the evidence may be suppressed.

You may be eligible for alternative sentencing that could allow you to avoid all or part of a prison sentence in your California heroin case. Possible forms of alternative sentencing in California drug cases include Proposition 36, deferred entry of judgment (DEJ) and drug court.

A California heroin charge carries consequences that can negatively impact your entire life, so it’s imperative to mount an aggressive defense. A knowledgeable California drug defense lawyer from The Kavinoky Law Firm is highly experienced in fighting heroin charges and will do everything possible to safeguard you from the harsh repercussions.

To learn more about strong defenses to California heroin charges, please contact a skilled California drug attorney from The Kavinoky Law Firm today at 1.800.NO.CUFFS for a free consultation.

Transporting or giving away marijuana or attempting or offering to do either in California is a felony, punishable by two, three or four years in prison, heavy fines and a variety of additional penalties. However, if the charged offense involved less than 28.5 grams or one ounce of marijuana (other than concentrated cannabis), the offense would be charged as a misdemeanor, punishable by a maximum $100 fine. Because the consequences of this charge can be severe, it is critical that an individual accused of one of these crimes immediately contacts a skilled criminal attorney who specializes in California drug crime defense.

Although there is a general law that prohibits transporting, selling, furnishing, administering or giving away marijuana and/or attempting or offering to do any of these activities, the offenses are broken down into three categories: transporting and giving away marijuana are grouped together (along with their attempts and offers), selling, furnishing and administering marijuana are grouped together (along with their attempts and offers as well) and all of the above (including attempting or offering to do any of the above) are grouped together if the marijuana in question weighs no more than one ounce and isn’t concentrated cannabis.

An individual may be convicted of transporting (that is, knowingly transferring marijuana from one place to another, whether by foot, in a car or by some other means of transportation) or giving away marijuana or of offering or attempting to transport or give away marijuana if he or she did so with more than 28.5 grams of marijuana, had knowledge of the presence of the drug and of its narcotic character and, if the crime alleged involved an offer or attempt, that the accused had the specific intent to give away or transport the marijuana. If found guilty, the accused faces two, three or four years in prison and will be ineligible for probation if he or she has a prior felony conviction for drug related offenses that include most opiates or opium derivatives, certain depressants, cocaine base, marijuana, mescaline, peyote, tetrahydrocannabinols or any drugs listed in schedules III, IV or V of the Controlled Substances Act.

Being charged with transporting or “giving away” marijuana raises two additional issues that are related to one another – included offenses and sentencing options. With respect to the first issue, the prosecution may allege that because the accused transported or gave away the drug, he or she necessarily “possessed” the drug and may charge the defendant with the crime of personal possession of marijuana or with possession of marijuana for sale in addition to the transporting or “giving away” charge. However, an experienced criminal defense lawyer who regularly practices this area of the law knows that these crimes are not necessarily included offenses (especially in a situation where one is offering to transport or give away the drug at a later time) and that similarly, where the only possession alleged is necessarily incidental to the drug’s transport or to the act of giving it away, separate convictions for this offense and possession are invalid.

If the court determines that the accused may be charged with a transporting or “giving away” charge and an additional charge involving marijuana, sentencing becomes an issue. If both counts were part of an “indivisible course of criminal conduct,” then the accused could only legally be sentenced to one of the charges. A seasoned lawyer knows the most compelling arguments to convince a judge that any related activities were, indeed, part of the same transaction, thereby avoiding separate sentences.

The unsurpassed attorneys at The Kavinoky Law Firm understand all of these issues and the most effective ways to address them. They also know that an individual convicted of a transportation charge may be eligible for drug treatment in lieu of incarceration if it can be proven that the marijuana was for personal use and not for sale. For the most trusted legal advice and outstanding representation, contact them today for a free consultation.

Powder Cocaine Offense

Cocaine, whether it’s in powder, base or crack form, is illegal to possess, sell, and transport in California. Violating those laws can result in state or federal charges. Powder cocaine is a Schedule II drug under California Health & Safety Code 11055 (b) (6)).

If you’re facing a California cocaine charge, it’s important to have knowledgeable California defense attorneys at your side. An experienced drug defense lawyer from The Kavinoky Law Firm has the skills needed to aggressively fight any powder cocaine charge.

There are a number of charges that can be brought in a California cocaine case, including possession, possession for sale, sale, manufacturing, and being under the influence. With the exception of under the influence, each of these is a felony that carries significant prison time if you’re convicted.

In addition to the charges listed above, there are numerous sentencing enhancements that can be brought in a California cocaine case. These include enhancements for weight, prior convictions, firearms, locations and minors. These sentencing enhancements can add years to your punishment in a cocaine case. You can’t be punished for a sentencing enhancement unless the prosecutor proves both the underlying drug charge and the enhancement beyond a reasonable doubt.

Fortunately, it’s possible to aggressively fight a California cocaine charge. Skilled California defense attorneys can thoroughly analyze your case and determine the most effective strategy to fight the charges, which may include a motion to suppress evidence.

Alternative sentencing that allows you to avoid incarceration is sometimes available in California cocaine cases. Alternative sentencing options may include a deferred entry of judgment (DEJ), Proposition 36, or drug court. An evaluation by a skilled substance abuse expert may help to persuade the court that alternative sentencing is appropriate.

A California cocaine conviction carries extremely harsh punishment, but it’s possible to fight the charges. A knowledgeable California drug lawyer from The Kavinoky Law Firm will fight to minimize or even eliminate the consequences of a cocaine charge. Please contact a skilled drug defense attorney today at 1.800.NO.CUFFS for a free consultation.