Offense
Plants, cultivates, harvests, dries, etc. cannabis plants
Ranges from an infraction (age 18-20, six plants or less) to felony depending on priors and conduct.
Aggravated Felony (AF)
This is a bad plea–but see Advice for options and for the argument that the California definition of cannabis is broader than the federal definition of marijuana.
Even growing for personal use has been held an AF as an analogue to a federal manufacturing felony.1See United States v. Reveles-Espinoza, 522 F.3d 1044 (9th Cir. 2008).
See Advice and see § N.8 Controlled Substance.
Crime Involving Moral Turpitude (CIMT)
Not CIMT because no intent to sell or distribute
Other Removal Grounds
Assume deportable and inadmissible for CS conviction, although see Advice. Consider alternatives such as PC 32, 592, etc. at Advice.
Inadmissible for reason to believe trafficking. Warn D that if imm authorities find strong evidence of intent to sell, D could be charged with being inadmissible because they have “reason to believe” D participated in trafficking. This ground bars almost all relief and might extend to juvenile conduct. See 11379.
Advice and Comments
Avoid this plea because the offense – even for personal use — has been held to be analogous to a federal “aggravated felony.” There are arguments against this, below, but they are not guaranteed to win.
Argument. Arguably no California cannabis conviction from on or after November 9, 2016 is a controlled substance offense or drug trafficking aggravated felony for immigration purposes, because as of that date Prop 64 defined California “cannabis” more broadly than the federal definition of “marijuana.” See discussion at Advice at current 11357(a)(2). Under that argument, 11358 is not a controlled substance or aggravated felony conviction.
Infraction. Conservatively assume even a California infraction in adult (not juvenile) court is a “conviction” for imm purposes because some officers are treating it as such, arguably in error. If it is held a conviction, this could have the absurd result that an 11358(b) infraction is an “aggravated felony.”
AF: Plead to a non-drug crime, e.g., PC 32 or 136.1(b)(1) with less than 1 yr, 460(a), (b), 592 theft of water by fraud (wobbler), 594, disposing hazardous waste, or other offenses. (If necessary and if D’s immigration case can survive it, plead to possession per 11357(b), or to 11377 with an unspecified substance. See 11377.)
Or, take PC 1000 if D is a good candidate. Success will mean no conviction or admission of a controlled substance offense. See 11377.
If D is a refugee, asylee, or potential applicant for asylum, see Advice about trafficking at 11360, below.
Victims of human trafficking or domestic or sexual violence. Some people who work as laborers unlawfully growing mj, or in any other unlawful work (mules, drug dealers, sex workers, etc.), are victims of human trafficking and are committing crimes under duress – coerced either by the trafficker or as a direct result of their victimization (e.g., taking drugs due to despair). This could support a criminal defense to charges and/or a vehicle to obtain post-conviction relief for a prior conviction.
In 2022, the trafficking defense and vacatur were extended to survivors of intimate partner violence or sexual violence who were coerced to commit crimes. This creates possibilities for the large population of defendants who are victims of domestic violence.
D also might be eligible to apply for lawful immigration status, with a T visa, a U visa, or relief under VAWA.
If a defendant might benefit from one of these options, see further discussion at ILRC, New Options for Survivors of Trafficking and Domestic Violence (Nov. 2022), and see this endnote for basic information and free resources to assist in representation.2Survivors of trafficking, or of intimate partner or sexual violence. California has passed laws to protect criminal defendants who are survivors of human trafficking (HR) or, as of 2022, of intimate partner or sexual violence (DV), if they are found to have committed the crime/s as a direct result of their victimization. These defendants might be eligible for immigration status as well, either for a “T visa” as victims of trafficking or a “U visa” or VAWA relief as victims of domestic violence. See resources at the end of this endnote.
This section will provide basic information and resources. For further discussion see ILRC, New Options for Survivors of Trafficking and Domestic Violence (Nov. 2022), https://www.ilrc.org/resources/new-options-survivors-trafficking-and-domestic-violence.
Definitions: “Human trafficking” does not refer to taking people across national borders. It is broadly defined for this purpose as labor or services obtained by overcoming the will of the victim. “Coercion” does not require direct coercion by the trafficker or attacker; one only must be “coerced to commit the offense as a direct result” of the victimization. For example, a trafficked juvenile who illegally carried a knife with the idea of preventing the trafficker from putting him into a car was potentially eligible for the defense, because he was “coerced to commit the offense as a direct result of being a human trafficking victim.” See In re D.C., 60 Cal. App. 5th 915, 919 (2021).
Defense to a criminal charge. See PC §§ 236.23, 236.24. This is a potential defense to any charged offense/s other than “violent felonies” as defined at PC § 667.5(c). Defendants must show that they were “coerced to commit the offense as a direct result of being a victim of [HR or DV] at the time of the offense and had a reasonable fear of harm.” For example, San Francisco public defenders have won jury trials on behalf of Hondurans charged with drug sales, by showing the Hondurans were trafficked and coerced to sell fentanyl. Also, even if one cannot win a complete defense, availability of the defense may help to bargain for a plea that is immigration-neutral or otherwise beneficial. For example, a group of undocumented Chinese defendants who had worked in a marijuana grow house were charged with H&S C §§ 11358 and 11359, which are immigration “aggravated felonies” even after Prop 64. By demonstrating that defendants fit the profile and were likely victims of human trafficking, Sacramento public defenders were able to negotiate pleas to misdemeanor PC § 32, a far better plea for a noncitizen. This was accomplished even though the defense itself could not go forward because the survivors were afraid to testify against their traffickers.
Post-conviction relief. California provides a vehicle to obtain post-conviction relief (PCR) to erase a prior conviction if the conduct was due to being a victim of HR or, as of 2022, of DV. See PC §§ 236.14, 236.15. In some cases, this PCR vehicle may be more acceptable to the prosecution than, e.g., a PC § 1473.7.
To have effect in immigration proceedings, any PCR must be based on a legal error in the original case. Effective 2023, §§ 236.14 and 235.15 were amended to clarify that the vacatur is based on error, which was that the defendant did not have the mens rea required to commit the offense, due to the coercion. As always with PCR for immigrants, it is critical to draft a proposed order for the judge that clearly identifies legal error as the basis. Consult with a PCR expert if needed, and see PCR resources at the end of this note.
Immigration remedies. In some cases, the defendant may be eligible for a “T” visa for trafficking victims or a U visa for victims of certain crimes including violent or sexual assault. See 8 USC §§ 1101(a)(43)(T), (U). In this process, one first applies for a temporary, non-immigrant T or U visa and later for lawful permanent residence (a green card). It is possible that the person’s children and (innocent) spouse can obtain status as well. Victims of intimate partner violence also may qualify for relief under VAWA, if the abuser was their USC or LPR spouse. Some nonprofit agencies are expert in these applications and can offer free help to the defendant.
Resources: For the criminal case, CAST (Coalition to Abolish Slavery and Trafficking) in Los Angeles is an excellent resource. See www.castla.org. They offer free technical assistance to California criminal defenders, immigration advocates, and others, as well as free training. They may refer you to nonprofits in your area that could take the person’s immigration case. For information on relief, see CAST materials as well as the brief summary of requirements for, and criminal record bars to, T visas, U visas, and VAWA in § N.17 Immigration Relief Toolkit, and see a variety of materials at https://www.ilrc.org/u-visa-t-visa-vawa, which also has links to webinars and manuals.
For information on post-conviction relief, see ILRC Practice Advisory, Overview of California Post-Conviction Relief (July 2022) and see the ILRC manual, California Post-Conviction Relief for Immigrants: How to Use Criminal Courts to Erase the Immigration Consequences of Crimes (Jan. 2023), https://store.ilrc.org/publications/california-post-conviction-relief-immigrants-how-use-criminal-courts-erase-immigration.