H&S C 11378 H&S C 11351 use same analysis

H&S C 11378 H&S C 11351 use same analysis

Offense

Possess for sale any of several controlled substances (CS) that are defined by California statute. Very bad plea.

Aggravated Felony (AF)

Yes, automatic AF, except see 11377 regarding non-federal substance defenses. But even with such a defense, by far the best course is to plead down to 11377 or even up to 11379.
If a non-drug offense or 11377 is not possible, a noncitizen likely will want to plead up to 11379 offer to give away (or if necessary, offer to sell), which is not an AF in immigration proceedings arising within the Ninth Circuit only. Pleading up is counter-intuitive but may be necessary for an immigrant D who wishes to remain in the U.S.—especially if the person is an LPR. It can be ineffective assistance of counsel to fail to advise and consider the 11352/11360/11379 option, rather than 11351/11358-11359/11378 for a noncitizen D.1See discussion in People v. Bautista, (2004) 115 Cal.App.4th 229, In re Bautista, H026395 (Ct. App. 6th Dist. September 22, 2005) (if defendant is a noncitizen, failure to advise and consider pleading up from § 11378 to § 11379 is ineffective assistance of counsel). See discussion at § 11379 of benefits to pleading to that offense.

Crime Involving Moral Turpitude (CIMT)

Yes CIMT. Note that the non-federal substance defenses do not prevent a CIMT. See 11377, Part d.

Other Removal Grounds

Other removal grounds: Yes, deportable and inadmissible CS offense, unless a non-federal substance defense applies. See 11377. But best option is to use the defense with a plea to 11377 or 11379, not 11378, or better yet, to plead to a non-drug offense.
Yes, inadmissible for reason to believe. Because evidence from outside the ROC can be used, this may apply even to a conviction protected by a non-federal substance defense; see 11379.

Advice and Comments

Refugee and Asylees: Trafficking is a ‘particularly serious crime,’ very bad for asylees and refugees. See 11379 and see § N.17 Immigration Relief Toolkit.

Victims of human trafficking. If the defendant may be a victim who is working under duress, see discussion at Advice to H&S C 11358.

2020-05-19T19:55:14+00:00Updated January 29th, 2020|