Heroin Charges and Location of Crime

Violating California’s heroin laws can result in a lengthy prison term, and factors known as sentencing enhancements can add substantially to your sentence. One possible sentencing enhancement in a California heroin case has to do with the location where the alleged offense occurred.

If you’re facing a California heroin charge, it’s important to fight for your rights and your freedom with the help of skilled California defense attorneys. An experienced California drug lawyer from The Kavinoky Law Firm is ready to review your case and build an aggressive defense strategy.

Sentencing enhancements must be proven beyond a reasonable doubt, just like the underlying drug charge, in order to result in additional punishment. If you are not convicted of the underlying drug charge, you can’t be punished for the sentencing enhancement.

Sentencing enhancements based on location in California heroin cases are triggered by either the allegation that you maintained a place to commit the alleged heroin offense or committed the offense in close proximity to a school, youth center or another place where children gather.

Felony offenses and certain sentencing enhancements follow California’s determinate sentencing laws — there is a lower term, a middle term and an upper term. The sentence the judge imposes if you’re convicted will depend on issues that include aggravating and mitigating factors — information that prompts the court to treat you more harshly or leniently.

These are the sentencing enhancements based on location that can be filed in a California heroin case:

Code Section Enhancement Sentence 11366 Maintain a place for sale or use Misdemeanor or 16-2-3 11366.5a Rents or makes available for manufacture or distribution Misdemeanor or 16-2-3 11366.6 Utilizing 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, manufacture upon grounds of school or within 1,000 feet of school (in a public place or place legally open to minors) when school was in session or when children using the school facility Add 3-4-5 11352b Transports for sale to non-contiguous county 3-6-9 11380.5 Possession for sale or sale at public park or oceanfront beach if drug-free zone (includes library, pool, youth center) Add one year

A location sentencing enhancement can add years to your prison sentence in a California heroin case, but not if you avoid being convicted in the first place. Knowledgeable California defense attorneys from The Kavinoky Law Firm will thoroughly examine all of the evidence in your heroin case and determine the appropriate challenges. Please contact us today at 1.800.NO.CUFFS for a free consultation.

 

 

Possession of marijuana for personal use may be prosecuted as either a misdemeanor or as a felony in California, depending on how much of the drug the accused possessed. Penalties for drug offenses can be stiff, which is why it is so important for an individual accused of marijuana possession to contact a criminal defense lawyer who focuses on this area of the law and who knows how to successfully defend these types of charges, as only an experienced attorney will know how to properly and effectively apply the defenses that are applicable to this offense.

Except as otherwise authorized by law (which basically means anyone who is exempt from criminal prosecution because they are either a patient or caregiver who has been authorized to use medical marijuana), every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a maximum of one year and by a maximum fine of $500 for a misdemeanor or may be imprisoned in the state prison for sixteen months or two or three years if charged with a felony.

Every person who possesses less than 28.5 grams (or one ounce) of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a maximum fine of $100. If the accused has been previously convicted three or more times of this offense during the two-year period immediately preceding the charged offense, he or she will also be diverted to an education, treatment or rehabilitation program. If the accused is so diverted, he or she will not be subject to the fine previously mentioned that is typically imposed in connection with this offense. If, however, he or she is not accepted into a suitable community program, he or she will be required to pay the fine. It should be noted that an individual who is arrested for a violation of this section is not subject to booking and should be released by the arresting officer if he or she shows valid identification and signs that he or she will appear in court.

If the accused is convicted of possessing more than one ounce of marijuana, other than concentrated cannabis, he or she will be subject to a misdemeanor, punishable by up to six months in the county jail and a maximum $500 fine.

Finally, any adult who possesses less than one ounce of marijuana, other than concentrated cannabis, upon the grounds of, or within, any elementary, middle or high school during school hours is subject to a misdemeanor, punishable by up to ten days in jail and a $500 fine.

Persons charged with possession of marijuana for personal use may be eligible for “deferred entry of judgment” pursuant to “Proposition 36”. This type of drug treatment allows an individual to avoid jail and to have his or her charges dismissed upon successful completion of his or her requirements. This is the type of alternative sentencing that an inexperienced attorney may not even be aware of – another reason why a skilled attorney must be retained.

The outstanding criminal attorneys at The Kavinoky Law Firm specialize in California drug defense and are dedicated to obtaining the most favorable outcomes for their clients. Through their hard-work, passion and experience, they know what it takes to win, which is revealed in their exemplary success record. When arrested for a marijuana offense, The Kavinoky Firm will do their best to have their client’s charges reduced or dismissed or will use their savvy skills to advocate for alternative sentencing where appropriate. With law offices in Los Angeles and throughout California, they are conveniently located for anyone in need of reputable marijuana defense attorney. One’s freedom is too important to trust to an inexperienced attorney. To secure the most trusted legal advice and unparalleled representation, contact The Kavinoky Law Firm today for a free consultation.

Powder Cocaine Charges and Prior Convictions

California cocaine charges carry extremely harsh penalties, and factors called sentencing enhancements can add substantially to your prison sentence. One possible sentencing enhancement in a California cocaine case is for prior convictions.

If you’re facing a California cocaine charge and have prior drug convictions, you need a defense lawyer who thoroughly understands narcotics law and will fight fearlessly for your rights. Knowledgeable California defense lawyers from The Kavinoky Law Firm has the skills needed to aggressively fight for your freedom.

In order to punish you for a sentencing enhancement in a California cocaine case, the court must find you guilty beyond a reasonable doubt of both the underlying drug charge and the enhancement. If you’re not convicted of the underlying drug offense, you cannot be punished for the sentencing enhancement.

Under California Health & Safety Code section 11370.2a, if you’re convicted of cocaine sale or possession for sale, you can be sentenced to an additional three years for each prior conviction for cocaine possession for sale (11351), possession of cocaine base for sale (11351.5), sale (11352), 11378 (possession of meth for sale), 11379 (meth sale), 11379.6 (manufacture), 11380.5 (offenses in public parks or beaches), 11383 (possession of chemicals with intent to manufacture).

If you’re convicted of 11350 (cocaine possession), possession for sale (11351), sale (11352), solicitation of a minor (11353), or agreeing to sell a controlled substance (11355), and have any prior felony narcotics conviction, you cannot receive probation, although the judge has discretion in this matter.

Under California Penal Code section 1203.07 (a)(11), if you’re convicted of sale or possession for sale and have a prior conviction for either of those offenses, you cannot receive probation. The judge has no discretion in this matter.

Under California Penal Code section 667.5b, you can receive an additional year in prison for any prior prison commitment unless five years have passed since you were released from prison and convicted of a felony.

California Health & Safety Code section 11366.5c dictates that if you’re convicted of managing a place for the manufacture, storage, and/or distribution of a controlled substance (11366.5a) and have a prior conviction for the same offense, you’ll receive an additional two, three, or four years in prison.

Your lawyer may challenge the validity of your prior convictions as part of a comprehensive defense strategy. If the court opts to strike one or more prior drug convictions from the record or otherwise invalidate the convictions, you cannot receive additional punishment for them.

If you’re facing a California powder cocaine charge and have prior convictions, you need skilled California defense lawyers fighting to safeguard your freedom. To learn more about aggressive defenses to California cocaine charges, please contact a qualified defense lawyer from The Kavinoky Law Firm today at 1.800.NO.CUFFS for a free consultation.

Mower hearings

When an individual in California is arrested for possessing, possessing for sale, cultivating or engaging in any other activity that relates to marijuana but is doing so for medical purposes, he or she may have a valid, legal defense. It should be noted that although The Compassionate Use Act only permits patients and their primary caregivers to possess and cultivate marijuana for personal medical use, any charges that relate to marijuana use may be applicable, if the defense attorney can convince the judge and/or jury that the activity was related to personal medical use and, as a result, the charges were inappropriately filed. In order to successfully plead this defense, it is imperative that the accused hires an experienced California criminal defense lawyer who has a thorough understanding of the laws that regulate medical marijuana use and the types of defenses that are applicable to them.

A Mower hearing provides an avenue to raise a medical marijuana defense. A Mower hearing is a type of pre-trial proceeding (equivalent to a motion to dismiss) that entitles the accused to argue his or her medical defense before going through the rigors of a trial, holding the prosecutor to a higher burden than he or she would normally face during the pre-trial phase in the criminal court process.

Patients and caregivers who are arrested for and charged with possession or cultivation of any amount of cannabis can file this type of motion to have their charges dismissed. This type of hearing arises out of a California Supreme Court case that was decided in July 2002 (People v. Mower). That case held that The Compassionate Use Act (also known as Proposition 215) provides more than just an affirmative defense (like self-defense in a murder trial) in that it actually provides those who are entitled to argue it with qualified immunity from prosecution.

“Mower” ruled that, in accordance with Prop. 215, patients and their caregivers should be protected from unnecessary prosecution, stating that possession and cultivation of marijuana (for medical purposes) is no more criminal than the possession and acquisition of any legal drug issued with a doctor’s prescription.

The court established a two-step process for those who are inappropriately arrested. First, they are entitled to a pre-trial hearing (now known as a Mower hearing) where they can ask the court to dismiss their case if they can establish by a “preponderance of the evidence” (which means that it is more likely than not) that they are, in fact, legal patients or caregivers. If that fails and they are held to answer at trial, they must only raise a “reasonable doubt” to prove their innocence. Unfortunately, much like the laws that are designed to protect patients and caregivers from overzealous law enforcement, this ruling does little to protect those individuals from arrest in the first place, since many police believe that they should still be arresting those who engage in any marijuana-related activity, leaving it to the courts to decide their innocence or guilt.

The exceptional criminal attorneys at The Kavinoky Law Firm have mastered this area of the law and are well qualified to successfully prevail in a Mower hearing, based on their in-depth knowledge of the Mower case, The Compassionate Use Act and the policies behind each. They are dedicated to helping their clients who have been unfairly targeted by the police put this frightening and frustrating experience behind them as compassionately, quickly and inexpensively as possible. For the most trusted legal advice and unsurpassed representation, contact them today for a free consultation.

Personal possession of marijuana – discovering the identity of an informer

A personal possession of marijuana charge may be filed as either a misdemeanor or a felony in California, depending on whether the accused possessed concentrated cannabis or more or less than one ounce of marijuana (other than concentrated cannabis). Although personal possession of marijuana is one of the less serious offenses involving the drug, a conviction can still carry severe penalties, which is why an individual accused of this crime should contact an experienced attorney who is readily familiar with the different defenses that can beat this charge.

If the accused was arrested based on an informant’s “tip,” the identity of the informer could be relevant to the defense. If the defense can prove that the informer “framed” the accused, that the informer contacted law enforcement to escape his or her own criminal culpability, that the informer’s tip was relevant to another and that the accused was mistakenly arrested (a defense that would most likely work in a situation where the accused was arrested based on constructive or joint possession of the drug) or that the informer shouldn’t have been trusted for any other reason, a skilled defense attorney could possibly make a motion to suppress any collected evidence or to dismiss the charges altogether. This would generally be the case if the defense could show that the informer’s information would help exonerate the accused of the charged offense.

Typically, an informer’s identity and the information that he or she provided to law enforcement is privileged information that is not revealed to the defense. This is based on a public safety concern to encourage informers to come forward with information without fear of retribution. However, if the arresting officers based their probable cause to search the accused on information obtained from the informer, the identity must be disclosed if the defense so requests or the testimony must be suppressed. Even so, disclosure may not be required if there was probable cause to search the suspect apart from the informer’s communications. The purpose in a criminal case of compelling disclosure of the identity of an informant, who is a material witness on the issue of guilt, is to assure the defendant a fair trial on the offense charged. The bottom line, therefore, is that there are circumstances under which an experienced criminal defense lawyer may persuade the court that the informer’s identity is critical to the defense and to reaching a fair outcome in the case if the informer’s information is relevant to the issue of guilt. The laws relating to this issue are complex and often conflict, which is simply one of the reasons why it is important for the accused to hire a criminal attorney who specializes in California drug laws and understands all of the defenses that are applicable to a personal possession charge.

An additional issue that a knowledgeable lawyer will consider is whether the arrest was with or without a warrant. Without a warrant, the attorney would likely argue that the reliability of the informant’s information must be examined in open court to provide the defense an opportunity to cross-examine the witness. If a warrant was obtained based on the provided information, the attorney would argue that the search was improper as to his or her client and that the informer’s testimony, if elicited by him or her, would be vital to the defense.

The unsurpassed criminal attorneys at The Kavinoky Law Firm know the most effective arguments that may persuade a judge that the identity of an informer is critical to the defense’s case. Because they specialize in this area of the law, they know that informant information relied upon in a personal possession of marijuana case is often unreliable and can be easily confused. These exceptional attorneys have mastered the ways that this, in addition to the many other defenses that are applicable to this charge, can help get their clients their desired outcomes. To learn more, contact them today for a free consultation.

A California PCP conviction carries substantial repercussions which often include prison time, and the addition of factors called sentencing enhancements increases the potential punishment even more. One possible sentencing enhancement in a California PCP case can be filed if you’re accused of involving minors in your alleged drug offense. Knowledgeable California defense attorneys from The Kavinoky Law Firm will fight aggressively to protect you from the harsh consequences of both a PCP drug charge and the sentencing enhancement of involving a minor.

Sentencing enhancements must be proven beyond a reasonable doubt, just like the underlying PCP charge, or you cannot receive additional punishment. If you aren’t convicted of the underlying PCP drug charge, you can’t be convicted of or receive additional punishment for a sentencing enhancement.

There is only one possible sentencing enhancement involving a minor that can be filed in a California PCP case. Under California Health & Safety Code section 11380, utilizing, soliciting or furnishing a minor with PCP is a felony sentencing enhancement punishable by three, six or nine additional years in prison. Under California’s determinate sentencing laws, the judge can impose the lower, middle or upper term depending on mitigating or aggravating factors — issues that prompt the court to impose a harsher or more lenient sentence.

If the prosecutor files a sentencing enhancement under California H&S 11380, he or she will also likely file a count under California Penal Code section 1203.07a8, which specifies that the defendant is not entitled to probation and that the judge has no discretion in the matter.

If you’re facing PCP charges that allegedly to involve minors, you face substantial punishment and need an aggressive defense strategy. An experienced California drug lawyer from The Kavinoky Law Firm has the skills needed to fight for your rights. Please contact knowledgeable California defense attorneys today at 1.800.NO.CUFFS for a free consultation.

PCP Charge and Locations

A California PCP charge carries harsh consequences, and those repercussions can be made even greater by factors known as sentencing enhancements. The location where the alleged offense was committed is one factor that can trigger a sentencing enhancement in a California PCP case. If you’re facing a California PCP Drug Charge, skilled California defense attorneys from The Kavinoky Law Firm will do everything possible to protect you from the serious consequences of a drug charge.

The same constitutional protections apply to sentencing enhancements as to underlying drug charges – your guilt must be proven beyond a reasonable doubt or you cannot receive additional punishment. Also, you cannot be convicted of a sentence enhancement unless you’re also convicted of the underlying drug charge.

These are the location sentencing enhancements that can be filed in a California PCP case:

Code Section Enhancement Additional Sentence 11366 Maintain a place for sale or use Misdemeanor or
16-2-3
11366.5a Rents or makes available for manufacture or distribution Misdemeanor or
16-2-3
11366.6 Utilizing 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 11379.5b Transports for sale to non-contiguous county 3-6-9 11380.5 Possession for sale or sale at public park or ocean-front beach Add one year

A location sentencing enhancement can add years to an already lengthy sentence in a California PCP case, so it’s critical to aggressively fight the charges. A skilled California drug lawyer from The Kavinoky Law Firm is well-versed in the defenses to PCP charges. Please contact the knowledgeable California defense attorneys today at 1.800.NO.CUFFS for a free consultation.

California Marijuana Laws – Selling, furnishing or administering marijuana

Selling, furnishing or administering marijuana (or attempting or offering to do the same) will be charged as a felony offense in California if the marijuana in question weighed more than one ounce (28.5 grams) and will be charged as a misdemeanor if the marijuana (other than concentrated cannabis) weighed one ounce or less. The felony charge is punishable by two, three or four years in state prison, the misdemeanor by a maximum $100 fine. In order to avoid the harsh consequences that are associated with a felony conviction on this charge, it is vital for the accused to hire a California drug crime defense attorney who knows how to defend against this offense.

Every person who sells, furnishes or administers marijuana is guilty of the crime of illegally selling marijuana. “Selling” marijuana means exchanging marijuana for cash, favors, services, goods or other non-cash benefits. “Furnishing” marijuana means to supply or provide the drug. “Administering” marijuana means directly applying the drug to another for that person’s immediate needs, by injection, inhalation, ingestion or any other means, by someone other than a doctor or a doctor’s staff. In order to convict the accused of this offense, it must be proven that he or she sold, furnished or administered marijuana and that he or she knew about the presence of the drug and about its narcotic character. If the accused is charged with offering to sell, furnish or administer marijuana, it must be proven that he or she offered to do the act and that he or she had the specific intent to do so.

When charged with illegally selling marijuana, the accused will likely be charged with possession of marijuana for sale. The prosecution will argue that a “for sale” charge is necessarily included in an illegal selling charge, because in order to sell the marijuana one must first possess it, either personally, constructively or jointly. However, this isn’t always the case. A good criminal defense lawyer has studied the cases and laws that relate to this charge and knows that courts have held that a possession for sale charge isn’t invariably included in a charge of furnishing marijuana. He or she also knows to review all the facts of his or her client’s case in an effort to uncover the fact that (especially in an “offer to sell” case) the accused didn’t actually possess the drug at the time the offer was made. An experienced attorney is also aware of the fact that where the only possession shown is necessarily incidental to its sale or furnishing, separate convictions for sale and possession would be invalid.

If the court finds that the accused may be charged with multiple offenses, sentencing becomes an issue – an issue that only a qualified drug attorney should attempt to address, due to the technical and complex nature of sentencing. The issue is raised if the accused is properly convicted of multiple counts because, depending on the circumstances, it may only be legal to sentence him or her on one of them. The savvy lawyer knows that in order to avoid sentencing on multiple counts, it must be shown that the different charges all arose out of the same “indivisible course of criminal conduct” and further knows the most compelling arguments to convince a judge that that was the case.

The exceptional criminal attorneys at The Kavinoky Law Firm specialize in everything that is related to California’s drug laws and defenses. They know what it takes to beat a selling, furnishing or administering marijuana charge and are dedicated to doing just that. With law offices throughout California, including several in Los Angeles, they are easily accessible to anyone needing outstanding representation from a California drug crime defense attorney. For the most valued legal advice and unsurpassed legal service, contact them today for a free consultation.

California Cocaine Charges Involving Firearms

California powder cocaine charges carry extremely harsh repercussions, and sentencing enhancements — factors that substantially increase punishment — can add years to a prison sentence. Possessing or using a firearm is one sentencing enhancement that can be filed in a California cocaine case.

If you’re facing a California cocaine charge, you want an experienced drug defense lawyer doing everything possible to safeguard your freedom. Qualified California defense attorneys from The Kavinoky Law Firm have the experience and skills you need to aggressively defend you on any cocaine charge.

Just like the underlying cocaine charge, any sentencing enhancements such as those involving guns must be proven beyond a reasonable doubt if you are to receive additional punishment. You can’t be punished for a sentencing enhancement if you’re acquitted of the underlying drug charge.

Many sentencing enhancements have the same punishment structure as felony convictions — a lower, middle and upper term expressed in months or years. The sentence that is applied depends on the facts of the case.

The following firearms enhancements can be filed in a California cocaine case:

Section Number Enhancement Sentence 11550e Possession of a loaded, operable gun while under the influence (11550) Misdemeanor or 16-2-3 11370.1 Possession of a loaded, operable firearm while possessing cocaine (11370) 2-3-4
(No diversion or DEJ) PC 12022c Possession of a loaded or unloaded, operable or inoperable firearm during sale (11351) or possession for sale (11352) Full consecutive 3-4-5
(if vicarious, 12022d,
add 1-2-3)
PC 12022a Armed with a loaded or unloaded firearm during the commission of any felony Add one year

Your California defense attorneys will thoroughly analyze your California cocaine case before planning a comprehensive defense strategy designed to address both the underlying drug charge and any guns and firearm enhancement.

One tactic your drug defense lawyer may employ is a motion to suppress evidence. This type of motion questions whether police followed proper procedure when seizing evidence, and may be directed at drug evidence, firearms, or both.

The allegation of possessing or using a firearm during the commission of a California cocaine offense can add years to an already lengthy prison sentence, but it’s possible to fight both the underlying drug charge and the sentencing enhancement.

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

Asset forfeiture is the process by which the government seizes one’s property that it believes is “reasonably” connected to illegal activities. With respect to marijuana or other drug offenses, this property can be anything from the facility used to manufacture or store the drug, to the vehicle used to transport the drug to any money that is associated with the purchase or the sale of the drug. Because the government has a relatively low burden to meet in order to obtain one’s property under forfeiture law, it is absolutely necessary for an individual who has been accused of any marijuana-related activity to immediately contact one of the well versed and experienced criminal attorneys at The Kavinoky Law Firm in order to protect his or her rights and assets.

Non-judicial forfeiture proceedings are one type of asset forfeiture proceeding – civil and criminal are the other two. Non-judicial forfeiture proceedings include “summary forfeiture” and “administrative forfeiture” proceedings, neither of which requires judicial involvement. A “summary forfeiture” is the process by which the government seizes property without any notice to or hearing for the owner. The only type of property that may be summarily forfeited is that which is illegal “per se,” which means illegal on its face and includes dangerous, toxic or hazardous raw materials or products and their containers. “Administrative forfeiture” must be specifically permitted by law, otherwise property may only be forfeited through formal court action. An administrative forfeiture is the process by which property is forfeited to the government by the investigative agency that seized it.

A non-judicial, administrative forfeiture proceeding, if applicable, pertains to property that does not exceed $500,000 (which includes vehicles, merchandise or baggage), is illegally imported (regardless of its value), is a vehicle that was used to import, export, transport or store marijuana (regardless of its value) or is a monetary instrument (that is, any money, domestic or foreign, traveler’s checks, stocks, checks, bank notes and money orders) whose value again, is irrelevant. Real property (such as buildings and homes) and multiple items of property that are seized that total more than $500,000 must be forfeited through judicial proceedings.

Property that has been seized may be returned to an individual who shares an ownership in the property if it is proven that the individual had no knowledge or reason to know of the property’s illegal use or of the accused individual’s criminal record or reputation. Property that is likely to perish, waste, greatly depreciate in value or that is simply too expensive to maintain during the administrative proceeding may be sold by the seizing agency (under certain conditions) and the proceeds will be treated as a substitute for the original property in the ensuing forfeiture.

When an agency decides to proceed with an administrative forfeiture proceeding, it must inform the owner within 60 days of the date of seizure (in most circumstances) in order to avoid a claim by the property owner that his or her Constitutional rights were violated. There are very specific guidelines that regulate how notice must be given, which is one of the reasons why it is so important to retain a skilled attorney who has mastered this area of the law and who therefore knows when rules and regulations have not been followed.

Judicial review of an administrative forfeiture may take place if the property owner feels that he or she is entitled to lawful possession of the property because his or her property was accidentally, fraudulently or improperly seized. In order to obtain such a review, the property owner must overcome some serious hurdles. The outstanding attorneys at The Kavinoky Law Firm are dedicated to protecting the rights and property of their clients and know what arguments to raise to effectively challenge asset forfeitures. To speak to one of their exceptional lawyers, contact the firm today for a free consultation.