Prior Convictions and California Methamphetamine Cases

If you’ve been arrested for a California methamphetamine charge, the prosecutor may add factors called sentencing enhancements that can add substantially to your methamphetamine sentence if convicted.

One possible sentence enhancement in a California meth case is for prior convictions. If you’re facing a repeat-offense California methamphetamine charge, skilled California defense lawyers from The Kavinoky Law Firm may be able to help you avoid some of all of the consequences you face.

Under California Health & Safety Code section 11370.2b,c, you can be sentenced to an additional three years in prison for each prior methamphetamine conviction if you are convicted of H&S 11378 (possession for sale), 11379 (sale), 11379.6 (manufacture), 11380.5 (offenses in public parks or beaches), 11383 (possession of chemicals with intent to manufacture) with prior 11351 (possession with intent to sell), 11351.5 (possession of cocaine base), 11352 (transport, import, furnish, etc.), 11378.5, 11379.5. 11379.6, or 11380.

Under California Penal Code section 1203.07(a)(11), if you have a prior conviction for H&S 11378 (possession for sale) or 11379 (sale) and are charged with either of these offenses again, you cannot receive probation. The judge has no discretion in this matter.

Under California Penal Code section 1203.073 b8, a prior conviction for H&S 11378, 11379, 11379.6, 11380, 11382, or 11383 means that you cannot receive probation for a new conviction of 11379.6, 11382, or 11383. However, the judge has discretion in this matter.

California Penal Code section 667.5b dictates that you can receive an additional year for a methamphetamine conviction for each prior prison sentence. However, this additional time cannot be imposed if you avoided additional felony convictions or incarceration for five years after being released from prison.

Under California H&S 11366.5c, if you’re convicted of 11366.5a (managing a place for manufacture, storage and/or distribution of a controlled substance and have a prior conviction for the same charge, you can be sentenced to an additional two, three or four years in prison.

Prior drug convictions in California methamphetamine cases can add years to your sentence, so it’s up to your California defense attorney to aggressively fight both the underlying drug charge and any sentencing enhancements.

To learn more about aggressive defenses to methamphetamine charges, please contact experienced California criminal defense lawyers from The Kavinoky Law Firm today at 1.800.NO.CUFFS for a free consultation.

Heroin Charges

Heroin is a Schedule I drug under California Health and Safety code section H & S 11054 (c) (11)), and it is illegal to use, sell, possess to sell, and manufacture or process in California. Violations of these laws are felonies that carry significant prison time and other penalties.

If you’re facing a California heroin charge, it’s essential to have experienced California drug defense attorneys on your team fighting for your freedom. An experienced California drug lawyer from The Kavinoky Law Firm has the skills and knowledge needed to aggressively fight your heroin charge and ensure that your rights are protected.

California has determinate sentencing laws that spell out three possible prison terms for felony offenses — the lower, the middle and the upper term — expressed in months or years. The judge determines the sentence based on information such as aggravating and mitigating factors — issues that prompt the court to treat you more harshly or leniently.

These are the charges that can be filed in a California heroin case:

Code Section Charge Sentence 11350 Possession 16-2-3 11351 Possession for sale 2-3-4 11352 Sale (transport, import, furnish, administer, give away or offers) 3-4-5 11379.6 Manufacture (process, prepare, etc.) 3-5-7 plus $50,000 11355 Agrees to sell, then sells another substance in lieu of Misdemeanor or 16-2-3 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 heroin (controlled substance) (i.e. substantially similar chemical structure or effect PC 182a1 Conspiracy to do any of the above Same as substantive charge 11532 Loitering in a public place with intent to commit a narcotics offense Misdemeanor B & P 4140 Possession of a hypodermic needle or syringe

The consequences of a heroin conviction can be extremely harsh, but it’s possible to fight these charges and win with the help of skilled California drug defense attorneys. The Kavinoky Law Firm will provide an experienced California drug lawyer that will take every step possible to protect you from the serious repercussions of a heroin conviction. To learn more, please contact us today at 1-800-NO-CUFFSfor a free consultation.

Minors and California Methamphetamine Cases

Certain factors called sentencing enhancements can be added to California methamphetamine cases that can add years to the potential sentence. The involvement or presence of minors is one sentencing enhancement that can be filed in a meth case.

Because the repercussions of a California methamphetamine charge are so severe, it’s imperative to have a skilled attorney on your side. A knowledgeable California drug lawyer from The Kavinoky Law Firm thoroughly understands the complexities of a methamphetamine charge and will aggressively defend you against both the underlying charges and any sentencing enhancements.

A prosecutor must prove both the underlying drug charge and any sentencing enhancements beyond a reasonable doubt in order for you to receive the additional punishment. If you aren’t convicted of the underlying charge, you cannot be punished for the sentencing enhancement.

California sentencing guidelines spell out a lower term, a middle term and an upper term for certain offenses. The sentence that is meted out depends on aggravating and mitigating factors — information that prompts the judge to treat you more harshly or leniently — and the facts of each case. The sentence for each offense or enhancement is spelled out in months or years in prison.

The California Health and Safety Code allows for the following sentencing enhancements to be filed in methamphetamine cases involving minors:

* 11380 — Utilizing, soliciting, furnishing a minor re: methamphetamine — 3-6-9
* 11379.7 — Manufacturing methamphetamine (H&S 11379.6) or possession of precursor chemicals with intent to manufacture (H&S 11383) with a child under 16 present, add two years. If a child under 16 suffers great bodily injury during the commission of these offenses, add five years.

California methamphetamine charges involving minors can bring sentencing enhancements that add years to a prison commitment, so it’s critical to aggressively fight both the underlying drug charge and any enhancements.

An experienced California drug defense lawyer from The Kavinoky Law Firm can thoroughly review your methamphetamine case and help you determine your next step. Please contact a skilled defense attorney today at 1.800.NO.CUFFS for a free consultation.

A civil judicial forfeiture proceeding is one type of asset forfeiture proceeding that an individual who has been involved in illegal marijuana-related activities may face. Asset forfeiture proceedings involve the government seizing an individual’s property (without offering compensation) that it believes is “reasonably connected” to the criminal activity, either as an aid in the activity or as a profit from the activity. A civil judicial forfeiture proceeding may be presented to the U.S. Attorney’s Office in one of three ways: by the seizing agency because the property seized must be forfeited judicially (as opposed to non-judicially), by the seizing agency because a claim and cost bond (an instrument used to contest an administrative forfeiture, which is a type of non-judicial forfeiture proceeding) has been filed for the property in an administrative forfeiture proceeding or prior to seizure if the investigating agency thinks that it must first obtain a warrant before seizing the property. There are certain rules that the seizing or investigating agency must follow when initiating this type of claim as well as certain rules that the U.S. Attorney must then follow when considering whether to proceed with the forfeiture, which is why it is so important for an individual accused of any marijuana-related offense to contact the skilled California criminal attorneys at The Kavinoky Law Firm who have an in-depth understanding of the rules and regulations that are involved in asset forfeiture and who therefore know how to best protect their client’s rights and assets.

Civil judicial forfeiture proceedings involve property that may not be forfeited non-judicially. This type of property, as it pertains to marijuana or other drug-related activities, may therefore include: (1) property that exceeds $500,000 in value and which is forfeitable pursuant to U.S. Customs procedures and is not a transporting vehicle (for marijuana, for example), an item that has been illegally imported or a monetary instrument (that is, any domestic or foreign money, traveler’s checks, stocks, checks, bank notes and money orders), (2) property that is forfeitable pursuant to IRS procedures that exceeds $100,000, (3) all real property (homes, buildings, etc.) regardless of its value, (4) all property that is lawfully forfeitable but doesn’t incorporate Customs laws or the Internal Revenue Code and (5) all property that has been contested by a claim and cost bond (which, again, is an instrument used to contest an administrative, non-judicial forfeiture proceeding).

When a complaint for a civil forfeiture is filed, the complaint must articulate exactly what property is being sought and how it is reasonably connected to the alleged illegal marijuana-related activity so that the property owner is able to immediately begin an investigation into the facts and is able to respond appropriately. The complaint should therefore contain the basis for the court’s jurisdiction (that is, the basis for the court’s authority), a description of the property, the place and date of the seizure, the seizing agency and the circumstances that justify the forfeiture. If these items aren’t specifically addressed or if the proper notice requirements aren’t given to the property owner, he or she may be entitled to either have the property returned or to be compensated for its value.

Defenses to a civil judicial forfeiture are numerous but only an experienced attorney will know when, which and how to most effectively present them. Examples include situations where the underlying crime that serves as the basis for the forfeiture never occurred, that all or part of the seized property had an independent innocent source and wasn’t used illegally, that “clean” money has been commingled with “dirty” money and that the clean money shouldn’t be subject to forfeiture or that the owner is an “innocent owner” and didn’t know about or had nothing to do with the illegal acts that gave rise to the forfeiture.

Civil judicial forfeiture proceedings are clearly technical and complex and require the skill of a qualified lawyer. For more information on asset forfeiture and to retain the best representation, contact the outstanding attorneys at The Kavinoky Law Firm today for a free consultation.

RICO Laws

There are a variety of laws that regulate and punish illegal marijuana-related activities. For example, local, state and federal authorities may use felony conspiracy laws to prosecute suspected persons and their business associates who knowingly participate in a scheme designed to violate the law, even if one of the suspected individual’s didn’t have any direct involvement in the manufacture or distribution of the marijuana. There are even specific federal variations on conspiracy laws that charge those who are suspected of participating in marijuana trafficking operations with the operation of a continuing criminal enterprise or with violating the Racketeer Influenced and Corrupt Organizations (RICO) Act.

Federal and state racketeering (that is, carrying on illegal business activities that involve crimes), profiteering, and RICO (Racketeer-Influenced and Corrupt Organization) laws make it illegal for criminal organizations to profit from any otherwise legitimate business operations. Violations of these laws typically lead to the confiscation and seizure of the criminal organization’s legitimate enterprise assets and are typically used against known “organized crime” groups. The goal of these laws is to financially cripple the suspected operation by cutting off the sources of cash that support its ongoing criminal activity.

These RICO laws apply to the commission of two or more specific offenses that constitute a “pattern of racketeering activity” or to the collection of an “unlawful debt”. A “pattern of racketeering activity” requires at least two acts of racketeering activity, one of which occurred after October 5, 1970, and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity. “Unlawful debt” refers to debts that were incurred as a result of gambling activity. As a result, marijuana-related activities are usually prosecuted under RICO’s “pattern of racketeering activity’s” provisions.

RICO laws (as they apply to marijuana-related offenses) hold that it is illegal for anyone to receive any income from a pattern of racketeering activity or to use or invest any part of that income in the acquisition of any interest in or the establishment or operation of any enterprise which is engaged in or affects the activities of interstate or foreign commerce. The laws also hold that it is similarly illegal for anyone to acquire or maintain interest in such an enterprise or for an employee or associate of such an enterprise to conduct or participate in the conduct of that enterprise. Conspiring to violate any of these laws is also illegal under RICO.

Criminal penalties that face an individual convicted under RICO laws include substantial fines and a maximum 20 year prison sentence. In addition, the individual will be required to forfeit any interest in the enterprise and any property constituting or derived from any proceeds obtained from the racketeering activity. This property includes real property, tangible and intangible personal property and all rights, title and interest in any such property, regardless of its location. A temporary restraining order may also be filed by the government without notice or a hearing if no criminal charges have yet been filed against the property owner if the government demonstrates that there is reason to believe that the desired property would, in the event of a conviction, be subject to forfeiture and that giving notice will jeopardize the availability of the property for forfeiture.

Civil penalties that may be issued against an individual convicted of a RICO violation include orders to divest of any interest in any enterprise, restrictions on the individual’s future activities, orders to dissolve or reorganize the guilty enterprise and restitution to innocent parties. It should also be noted that a criminal conviction under these laws will prevent the accused from denying the allegations in a subsequent civil proceeding.

The rules that regulate RICO laws are specific and technical, which is why it is critical that an individual charged with a RICO violation immediately contacts an attorney who is well-versed in this area of the law. To learn more, contact the outstanding criminal attorneys at The Kavinoky Law Firm today for a free consultation.

Personal possession – types of possession

Possession of marijuana, also known as possession of marijuana for personal use, may be charged as either a misdemeanor or as a felony offense in California, depending on the quantity and type of the marijuana. The offense is proven if the prosecution can show that the accused exercised dominion and control over the marijuana, that he or she had knowledge of its presence and that he or she had knowledge of its narcotic character. “Dominion and control” refers specifically to how the accused possessed the marijuana, which can be established through physical (or actual) possession, constructive possession or joint possession, all of which may be proven through circumstantial evidence (that is, evidence that isn’t directly observed but is inferred from events or circumstances that surround it). It should be noted that whether the marijuana was actually “owned” by the accused is not the pivotal issue – the critical issue is whether or not he or she had “possession” of it. An experienced criminal defense lawyer who specializes in California drug crimes will have an in-depth understanding of these different types of possession and will further know how to successfully challenge them.

Physical (or actual) possession of marijuana for personal use refers to situations where the accused knowingly had the marijuana on his or her person. A person having a baggie of marijuana or a joint in his or her pocket would be examples of physical possession. Although there are many defenses that may apply to this type of possession, including medical marijuana use, temporary possession for disposal and illegal search and seizure, only a skilled California drug attorney will know how to effectively persuade a judge and jurors that they are legitimate under these circumstances.

Constructive possession of marijuana for personal use refers to situations where the marijuana was immediately accessible by the accused and he or she either had direct exercise and control over the drug or the right to control the drug (or the place in which it was found) either personally or through another person or persons. This type of possession would apply, for example, if a driver was stopped and marijuana was found in the center console of the car. While the driver wasn’t in actual or physical control of the drug, he or she could still legally be charged with possession, because one could infer that he or she knew the whereabouts of the drug and had the ability to access and control it. Lack of knowledge and illegal search and seizure will be the most likely defenses to a constructive possession case.

Joint control or possession of marijuana for personal use refers to situations where two or more people may possess the marijuana. An example of this is found in a case where an officer witnessed a group of men huddled together in an area known to be a hangout for marijuana smokers. When he approached, a paper sack containing marijuana was thrown into the air and the group scattered. Joint possession allowed the officer to reasonably conclude that the marijuana was commonly possessed by all members of the group. Entrapment, illegal search and seizure, lack of knowledge and temporary possession for disposal might be the defenses that would be argued against a joint possession offense.

In addition to those noted above, a criminal lawyer who regularly practices California drug crime defense will be readily familiar with all of the defenses that are applicable to “possession of marijuana for personal use” cases. To avoid the consequences that this offense carries, it is imperative for an individual accused of personal possession to hire a qualified attorney, seasoned in this technical and complex area of the law. The exceptional attorneys at The Kavinoky Law Firm stay on top of California’s drug laws. They receive ongoing education and training in everything related to drug offenses and are well prepared to effectively tackle any issue that comes their way. Contact them today for a free consultation and for the best representation.

California PCP charges are extremely serious, and there are a number of sentencing enhancements that can substantially increase your potential punishment. One possible sentencing enhancement that can be filed against you in a California PCP case is for prior convictions.

You can’t be punished for any type of sentencing enhancement, including prior convictions, unless you’re convicted of the underlying drug charges.

These are the possible sentencing enhancements that can be filed for prior convictions in a California PCP case:

Code Section Enhancement Punishment 11370.2.b New 182.1, 11378.5, 11379.5, 11379.6, 11380.5 or 11383 with prior 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5 or 11383 Add three years for each prior conviction PC 667.5b For each prior prison commitment
(unless after release the defendant remained free of both prison and felony convictions for five years)

Add one year
11366.5c Prior 11366.5a with new 11366.5a 2-3-4

In addition to sentencing enhancements for priors, the prosecutor in a California PCP case can also file enhancements for weight, firearms, locations and minors.

A California PCP case with sentencing enhancements for prior convictions can result in years in prison, so it’s critical to mount an aggressive defense to these charges. Knowledgeable California drug lawyers from The Kavinoky Law Firm will do everything possible to help you avoid the substantial repercussions of a PCP charge. Please contact a skilled California drug attorney today at 1.800.NO.CUFFS for a free consultation.

Every person who plants, cultivates, harvests, dries or processes any marijuana or any part thereof is guilty of a felony offense in California, which is punishable by sixteen months or two or three years in the state prison, unless one can prevail at a Williamson hearing, showing that the cultivation was for personal use, which may entitle the individual to diversion instead. Because the penalties can be severe for an individual convicted of this offense, it is critical that the accused contacts a skilled California drug attorney immediately upon his or her arrest who can begin building an aggressive defense.

“Cultivating” means fostering the growth of the marijuana. Cultivating marijuana is considered a continuing offense, in that it continues at least during the period of cultivation, so one need not be physically present at the site of cultivation to be guilty of this offense. “Harvesting” means gathering the crops of the marijuana. “Processing” means changing the form of the marijuana plant to make it useful for smoking or other narcotic purposes. If it is proven that an individual participated in one of these activities (or that he or she planted or dried marijuana) and that he or she knew it was a marijuana plant or some part of a marijuana plant, he or she may be convicted of this offense.

There are a number of defenses that apply to this crime that an experienced criminal defense lawyer is familiar with and knows how to effectively convey to a judge and jury. The outstanding attorneys at The Kavinoky Law Firm have mastered this area of the law and know how to meticulously review a case to spot these defenses as well as the other issues that may raise concerns about the legitimacy of their client’s arrest.

Some of the most common defenses to cultivating marijuana include lack of knowledge, a medical marijuana exemption and illegal search and seizure. These are only a sample of some of the defenses that are applicable to this charge – a seasoned criminal attorney will know a variety of additional defenses that he or she may choose to employ based on the facts of each individual’s case.

Lack of knowledge might come into play if the marijuana plants were growing outside or were tucked away in an otherwise unused part of the property and the accused was unaware of the plant’s presence or species. This may be the case where an individual is renting a property, unaware of what a previous tenant was growing or may apply to a family member who was growing the drug without the knowledge of others who also resided on the property. Once again, this is just an example of when this defense might apply – a savvy attorney will know if this defense will work when he or she reviews one’s specific case. It should be noted that an owner of land may be charged as an aider and abettor for marijuana cultivation if he or she had knowledge of the plant’s presence.

A medical marijuana defense may be argued in situations where a patient or a patient’s caregiver has received a recommendation from a doctor stating that marijuana use would benefit the patient’s health. Using, cultivating and transporting marijuana are permitted under these circumstances, as long as the individual participating in these activities abides by the laws that regulate such uses.

A practiced criminal attorney will always scrutinize a case for any illegal search and seizure issues, as this type of defense is the most successful in having one’s case dismissed. Whether the police had a warrant, whether the warrant was based on legitimate information and whether there was sufficient probable cause to support the search are all issues that the defense attorney will consider when building a defense.

The exceptional attorneys at The Kavinoky Law Firm are here to help. They specialize in California’s drug laws and the defenses that apply to these laws and know what it takes to win. Contact them today for a free case evaluation and for unparalleled representation.

California Methamphetamine Lawyers

Methamphetamine — also known as meth, ice, crystal, crank, and dozens of other names — is one of the most addictive and abused drugs in the United States, and thousands of individuals are arrested and charged with using, possessing, selling and manufacturing it each year. Those who are convicted of a California methamphetamine charge can be punished with jail or prison and other repercussions.

Fortunately, it’s possible to fight a meth charge. If you’re facing a California methamphetamine charge, an experienced defense lawyer from The Kavinoky Law Firm is ready to review your case and begin working on an aggressive defense strategy.

Methamphetamine is a Schedule II drug under California Health & Safety Code section 11055 (d) (2). Under California law, using, possessing, selling, manufacturing, and possessing methamphetamine for sale are all against the law. There are numerous charges that can be brought in a California methamphetamine case.

If you were arrested on suspicion of manufacturing methamphetamine, you can also be charged with operating a clandestine lab. In addition to the substantial criminal repercussions that can be imposed after a conviction for running a clandestine lab, which include incarceration and heavy fines, you can also be forced to pay the costs of cleaning up the lab.

In addition, there are numerous sentencing enhancements that can significantly increase your punishment in a California methamphetamine case. These sentencing enhancements involve weight enhancements, prior convictions, firearms, locations, and minors. If the prosecutor proves both the underlying charge and the sentencing enhancement, these additional allegations can add years to a prison sentence in a California meth case.

Fortunately, it’s possible to mount an aggressive defense to a California methamphetamine charge. Your California defense lawyer will thoroughly analyze the case against you and explore the appropriate challenges, which may include a motion to suppress the evidence.

In some cases, your defense lawyer will involve a qualified substance abuse expert to determine whether untreated addiction may have contributed to your behavior. A recommendation from a substance abuse expert can lead to alternative sentencing such as a deferred entry of judgment, Prop. 36, or drug court.

A California methamphetamine charge carries extremely harsh repercussions, but it’s possible to aggressively fight the charges and obtain a favorable outcome. For answers to all of your questions about California meth laws and charges, please contact an experienced defense lawyer from The Kavinoky Law Firm today at 1.800.NO.CUFFS for a free consultation.

Criminal forfeiture proceedings are a type of asset forfeiture proceeding that may be initiated against an individual who was involved in illegal marijuana-related activities. Asset forfeiture refers to the process by which the government seizes one’s property (without compensation) when it believes that the property was either used to aid in a criminal activity or was a profit from the illegal activity. Because the laws that regulate asset forfeiture are complex, defending a forfeiture action requires the skill and experience of an attorney who has truly mastered this area of the law.

Criminal forfeiture proceedings may be initiated against an individual in the district in which his or her alleged criminal activity took place. This means that property located outside the United States may still be subject to forfeiture under a criminal proceeding. A Criminal forfeiture will be a part of a convicted defendant’s sentence for certain crimes – as a result, one is only subject to this type of proceeding if he or she has been convicted for the charged offense.

Criminal forfeiture must first be authorized by federal law. If it is, it includes property that was wrongfully used or acquired during the offense for which the defendant was convicted and only applies to property in which he or she has an ownership – but not necessarily an exclusive – interest. This may apply to all types of real property (houses, buildings, etc. and any items – such as marijuana plants – that are growing on, affixed to or found on the land) and all types of personal property (including rights, privileges and interests or claims in stocks, etc.). The government may criminally forfeit property that was involved in or was a profit from the charged offense and may also forfeit any property that it can directly trace back to the illegal activity. It must be noted that simply because an individual has used or transferred his or her profits, proceeds or other property before his or her conviction, it will not prevent the government from reaching and forfeiting the full value of the illegal property, as it can collect the money from any assets still owned by the defendant.

Marijuana and other drug offenses are additionally regulated by their own specific statutes, which is why it is so important for an individual who may be subject to this type of proceeding to retain the legal services of an experienced lawyer. With respect to certain felony marijuana offenses, it is presumed that the government may forfeit property that it declares “drug proceeds” if it can prove by a “preponderance of the evidence” (which means that it was more likely than not) that the property was acquired during the period of the felony violation or within a reasonable time thereafter and that there was no likely source for that property other than the felony violation. In addition, any property that was either used or intended to be used in any manner to commit or aid in the commission of the underlying felony marijuana offense is also subject to criminal forfeiture. This is one area where criminal forfeiture is broader than civil judicial forfeiture proceedings, as there are more limited restrictions on what type of property may be forfeited under civil law.

Depending on which laws regulate the forfeiture proceedings, the government may be held to a preponderance of the evidence standard or a “reasonable doubt” standard – the highest under the law. As a result, it is critical that a savvy criminal attorney represents the accused who understands these different burdens of proof. In addition, if an individual has his or her assets seized, he or she may wish to appeal the decision, which also requires the assistance of a knowledgeable attorney. The exceptional attorneys at The Kavinoky Law Firm are here to help. They receive on-going training and education with respect to this specific area of the law and how it relates to their client’s marijuana cases, enabling them to effectively defend against an asset forfeiture proceeding. Contact them today for a free consultation and for unparalleled legal advice.