H&S C 11358 (Analysis is not changed by Prop 64)

H&S C 11358 (Analysis is not changed by Prop 64)


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.
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.
(But if any of the included water offenses could be deemed theft, a plea to that might be a CIMT.)

Other Removal Grounds

Yes, deportable and inadmissible for CS conviction, but see 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 as the offense – even as an infraction, for personal use — is analogous to a federal “aggravated felony.” There are arguments against this, below, but they are not guaranteed to win.

Argument. See Advice at current 11357(a)(2) for an argument that California cannabis is not a controlled substance for any imm purpose, which would defeat the AF and CS charge. This would apply to convictions on or after 11/9/16.

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.2Immigration advocates may contest this. See, e.g., Yi, “Arguing that a California Infraction is not a Conviction” at www.ilrc.org/resources/arguing-that-a-california-infraction-is-not-a-conviction-test-for-non-misdemeanor-offenses. As always, advocates should pursue post-conviction relief at the same time in case the argument fails. However, there are reports that immigration officials have treated infractions as a conviction, and some unpublished Ninth Circuit decisions have held that it is a conviction. See, e.g., Heredia v Sessions (9th Cir 2017) 720 Fed Appx 376. 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), 594, water offense, 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. Some people who work as laborers unlawfully growing mj, or in other unlawful work (mules, sex workers, etc.), are victims of human trafficking and working under duress. This could support a criminal defense; a vehicle to obtain post-conviction relief; and/or a pathway to lawful immigration status. They may be afraid to admit they are victims. See endnote for information and free resources to assist in representing possible victims of human trafficking.3Victims of trafficking. California has passed laws to protect criminal defendants who are victims of human trafficking and may have committed crimes under duress. These people might be eligible for immigration status as well. See resources at the end of this endnote.

Proving that the defendant is a trafficking victim is a defense to many types of charges, including drug offenses. See Pen C § 236.23. Even if one cannot win a full § 236.23 defense, one might be able to obtain an immigration-neutral plea. 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 “aggravated felonies” even after Prop 64. By showing evidence that they were likely victims of trafficking, their public defenders were able to negotiate pleas to misdemeanor Pen C § 32, accessory after the fact, a far better plea for a noncitizen.

California also provides a vehicle to obtain post-conviction relief to erase a prior conviction if the conduct was due to being a trafficking victim. See Pen C § 236.14. To make sure that the post-conviction relief will be given effect in immigration proceedings, the Pen C § 236.14 order should set out a legal error in the case that goes beyond the elements of § 236.14, for example that the plea was in error because the person did not willfully commit the offense, or the client entered the plea under duress due to fear of the trafficker, or the defense did not offer complete advice because they were unaware of the trafficking. Draft the order for the judge and consult a post-conviction relief expert if needed. Or, consider Pen C § 1473.7.

In some cases, the defendant may be eligible for a “T” visa for trafficking victims. See 8 USC § 1101(a)(43)(T). In this process, one first applies for a temporary, non-immigrant visa called a T visa, and later for lawful permanent residence (a green card). It is possible that the person’s spouse and children can obtain status as well. Some nonprofit agencies are expert in obtaining this and can offer free help to the defendant.

CAST (Coalition to Abolish Slavery and Trafficking) in Los Angeles is an excellent resource. See www.castla.org. They offer free technical assistance on cases 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 written information, see the brief summary of T visas in § N.17 Immigration Relief Toolkit and see materials at https://www.ilrc.org/u-visa-t-visa-vawa, which also has links to webinars and manuals.

2021-05-14T16:29:17+00:00Updated May 14th, 2021|