Possession of Drugs in San Diego
Drug possession charges in California are classified as misdemeanors, wobblers, or felonies according to the type of controlled substance involved and the amount possessed. A wobbler is an offense that the prosecution has discretion to charge as either a misdemeanor or a felony. For example, possession of narcotics, hallucinogens and hashish are considered wobbler offenses that may result in a felony conviction. If you are facing charges or have been convicted of felony drug possession, you may qualify for relief under Proposition 47. Proposition 47 offers people with no prior serious or violent felony convictions the opportunity to reduce a wobbler or felony possession to a straight misdemeanor. This reduction to a misdemeanor could make you eligible for a drug diversion program. At Monder Law Group we have ample experience dealing with drug possession charges and diversion programs, let us help you qualify for a drug diversion program that could get your possession charges dismissed. Contact San Diego criminal defense attorney Vik Monder now at (619)405-0063.
Understanding California Health and Safety Code Section 11350
In consideration of the seriousness of possession of a controlled substance, California Health and Safety Code section 11350 has criminalized it under Penal Code section 1170. Under this law, “Every person who possesses (1) any controlled substance specified in subdivision (b) or (c), 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."
Right of control of the controlled substance.
Direct physical control of the controlled substance.
Two or more people possessing the controlled substance at the same time.
Prosecution's Burden of Proof for Simple Drug Possession
To convict someone of drug possession, the prosecutor must prove each of the following existed beyond a reasonable doubt:
- The defendant unlawfully possessed a controlled substance;
- The defendant knew the drugs were present;
- The defendant knew the drugs were a controlled substance;
- The defendant possessed a usable amount.
Implications of Proposition 47 for Drug Possession
Proposition 47 is a retroactive law that offers relief both to people facing drug possession charges and people convicted of felony drug possession. Proposition 47 does not carry enhancements for repeat drug offenders. This means that regardless of how many prior simple possession convictions you may have, the prosecutor can only charge you with a misdemeanor for simple possession. However, a person with prior convictions for serious or violent crimes or registered as a sex offender will not be eligible for relief under Proposition 47.
Prior Felony Convictions for Possession
If you are eligible under Proposition 47, you could have a felony conviction for possession of a controlled substance reduced to misdemeanor on your criminal record. It is important to note that this request must be submitted to the court in the county that you were convicted in by November 2017. Also a copy of this request will need to be filed in at the district attorney’s office. Once your request has been approved and the conviction appears as a misdemeanor on your record we can proceed to expunge the misdemeanor and clear your criminal record.
Current Felony Charge for Possession
Proposition 47 only applies to simple possession charges and not to possession with intent to sell. This is a very important distinction because often times the prosecution will try to charge you with possession with intent to sell in order circumvent the protection you are entitled to under Proposition 47. At Monder Law Group, we will not stand for this! If you are facing possession charges for a controlled substance, our priority is to get the charges against you dismissed. To do so we must fight to mitigate the amount of drugs involved in order to make sure you qualify for relief under Proposition 47. Once a successful reduction to a misdemeanor has been obtained, your misdemeanor drug charge will be eligible for diversion. Upon successful completion of a California drug diversion program will result in the charges for possession charges against you dismissed.
California Diversion Programs
PC 1000 is a way for first time drug offenders to avoid going to jail and from incurring a criminal record. Let’s say that a person without a criminal record is charged with possession of drugs but not with the intent to sell or manufacture. That person, under PC 1000 may plead guilty to possession and attend a four month class that meets once a week instead of spending time in jail. Once that person has successfully completed the class and 18 months have passed without another criminal arrest or conviction, and all fees associated with the case have been paid, the court dismisses the original case.
Prop 36 is for people who have incurred new charges for drug possession or use offenses that do not qualify for PC 1000. However, in order for a person to qualify for Prop 36, he or she cannot be charged with the sale, manufacture, or any other non-drug crimes at the same time. However, offenders can be excluded from consideration under Prop 36 if they have a prior conviction for a serious or violent felony (a “strike”), unless they have served their prison time and have been out of prison for five years with no felony convictions or misdemeanor convictions involving violence. It is important to note that for people who are currently on probation can use Prop 36 if the violation of probation allegation itself qualifies for Prop 36.
Alternative Sentencing Programs
To be eligible for court mandated drug rehabilitation in lieu of sentencing, a person must be charged with a non-violent drug offense, not have a criminal record, complete a mental health evaluation and demonstrate that the person can benefit from an in-patient or out-patient drug program. Once approved, the person will have the option to choose between a in-patient or out-patient program to complete the court mandated drug rehabilitation.
This is a residential treatment program that requires you to live at the facility so that you may be provided with round the clock care. It is important to note that the court will not pay for this treatment option.
This is a treatment program that does not require you to live at the facility but allows you to visit a rehabilitation center and receive treatment on a weekly basis but continue living at home and going to work.
- You did not know the drugs were there.
- You did not have a right to control the drugs.
- You did not know the drugs were a controlled substance.
- You had a valid prescription.
- The substance was not a controlled substance.
There are many ways to defeat a possession charge in San Diego. At Monder Law Group we deal with these type of cases everyday and know how best to strategize defenses for drug possession. Attorney Vik Monder will personally review the facts of your case, explain the options available, and advise you of the best strategy to defeat this charge.