California Health and Safety Code Section 11366
Cal HS 11366 “Opening or Maintaining a place for the purpose of unlawfully selling, giving away, or using a controlled substance.”
It is a violation of HS 11366 to open or maintain any place for the purpose of unlawfully selling, giving away, or using any controlled substance. Maintaining a place specifically means you exhibited some type of control over the facility. For example, observations of someone locking and unlocking a facility, as described in HS 11366, may be used as circumstantial evidence to incriminate a person as having control over the facility.
Cal HS 11366, is considered a lesser offense to a violation of Cal HS 11358, “Cultivation of Marijuana.” While HS 11358 is a “straight Felony”, meaning it can not be reduced to a Misdemeanor, a violation of Cal HS 11366 may be charged as either a Felony or a Misdemeanor. The main difference is that with a Felony, the consequences are either probation or state prison for 16, 24, or 36 months. If it’s a Misdemeanor, probation will be granted (formal or informal), and the consequences will be a maximum of one year in county jail, but the possibility of no jail at all.
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If treatment is a good
If treatment is a good alternative for our client, we commonly attempt to get the court to agree to order treatment and to get credit for treatment (detox/live-in/out-patient), in leau of doing the time in jail. Also, another option is to potentially enter a plea of guilty/no contest to the court, with the understanding that the Judge will reduce the offense to a Misdemeanor, at sentencing, as long as certain conditions and requirements are met by the client. We continue the case based on the Judge’s agreement for 6-18 months. Some of these requirements may be to submit to random drug testing, attend NA meetings, meet with a probation officer for an interview, and sometimes community service.
An individual is not convicted of an offense at the time when the enter a plea of guilty/no contest. They are actually only convicted upon being sentenced for an offense. This means that if an individual is sentenced to a Misdemeanor, but initially plead to a Felony, they will be convicted of a Misdemeanor and not a Felony.
It is important to note, however, that if the person does not complete any of the requirements, then they have agreed to be sentenced to a Felony. Thus, it is critical to follow the instructions of the court, and to comply with their requirements. An attorney at The Law Office of Ben Mironer will take the time to explain of the potential options, including the various defenses and possible motions.
It is important to take action, as quickly as possible, after being arrested for any charges related to Drug Offenses. Our office works with our clients to immediately assess whether they need to enter a program (whether detox/ live-in/ out-patient), and we help them get the immediate assistance they deserve. The Law Office of Ben Mironer knows the various nuances of the laws, and how to utilize it to benefit our clients.
California Health and Safety Code Section 11366.5 A
This code section makes it unlawful for someone to control a space, building, or room, or to allow someone to use that space, building, or room for the purpose of unlawfully manufacturing, storing, or distributing any controlled substance for sale or distribution. Also, it doesn’t matter whether the person was compensated or not. This law applies to anyone who has control of the space, building, or room, either as an owner, lessee, agent, employee, or mortgagee.
Cal HS 11366.5(a), is considered a lesser offense to a violation of Cal HS 11358, “Cultivation of Marijuana,” or even Cal HS 11366, “Opening or Maintaining a place for the purpose of selling a controlled substance.” While HS 11358 is a “straight Felony”, meaning it can not be reduced to a Misdemeanor, a violation of Cal HS 11366.5 may be charged as either a Felony or a Misdemeanor. The main difference is that with a Felony, the consequences are either probation or state prison for 16, 24, or 36 months. If it’s a Misdemeanor, probation will be granted (formal or informal), and the consequences will be a maximum of one year in county jail, with the possibility of no jail at all.
However, unlike HS 11358, there is no option to get a deferred entry of judgement (DEJ) under HS 11366.5. In order to get DEJ for violating HS 11358, the marijuana must be cultivated for personal use. DEJ allows the court authority to dismiss a case after a period of time (usually 6-18 months) is completed with no new arrests or convictions. However, if there is too much marijuana confiscated to be for personal use, DEJ will not be an option for a HS 11358 charge.The Law Office of Ben Mironer has been very successful in handling various types of marijuana cultivation cases. An initial allegation of a violation of HS 11358, may be reduced to a violation of Cal HS 11366.5, as part of a plea bargain deal. The main benefit of this lesser offense is that it is a “wobbler,” meaning it may be charged as misdemeanor or a felony. When it’s charged as a felony, the court still has discretion to reduce it to a misdemeanor at various portions of the case. The court will sometimes allow an individual to plead to the Felony, with the understanding the matter will be reduced to a Misdemeanor after a specific period of time.