H&S C 11359 (Analysis is not changed by Prop 64)

H&S C 11359 (Analysis is not changed by Prop 64)

Offense

Possess cannabis for sale

Aggravated Felony (AF)

Yes AF, without exception, but see Advice

Crime Involving Moral Turpitude (CIMT)

Yes CIMT.

Other Removal Grounds

Deportable and inadmissible CS offense but see Advice.

Advice and Comments

Argument. This plea should be avoided but see Advice at current 11357(a)(2) for an argument that California cannabis is not a controlled substance for imm purposes, which would defeat the AF and CS charge. This would apply to convictions on or after 11/9/16 and arguably to some earlier ones that are re-designated under Prop 64 provisions.

Bad plea. Consider options, defenses, in Advice to 11358, 11360. Assuming arguendo that the substance matches the federal definition of marijuana, then 11359 is an automatic aggravated felony, while parts of 11360 are not aggravated felonies.

Seek post-conviction relief for a prior conviction. Advising a noncitizen to plead to 11359 without advisal re 11360 is ineffective assistance of counsel.1See People v. Bautista, (2004) 115 Cal.App.4th 229; see also In re Bautista, H026395 (Ct. App. 6th Dist. September 22, 2005) (where defendant was a noncitizen, failure to advise and consider pleading up from § 11359 to § 11360 was ineffective assistance of counsel).

See § N.8 Controlled Substance.

2020-05-19T16:35:45+00:00Updated January 29th, 2020|