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 the non-federal substance defenses. But even with such a defense, the best course is to pursue strategies discussed at 11377, including: pleading instead to a non-drug offense, even a serious one; pleading to PC 372.5 (or PC 32 with a sentence of 364 days or less), if the client can survive that (it is easier for an LPR than an undocumented person to use 372.5 or 32); plead to a specific non-federally defined substance; plead down to 11377 if the client can survive that, or seek diversion.
If none of this is possible, D should consider pleading up to 11379 offer to give away (or if necessary, offer to sell). This is a deportable and inadmissible CS conviction, but at least it is not an AF in immigration proceedings arising within the Ninth Circuit only. (If D ends up in immigration proceedings outside the Ninth Circuit, this will be an AF.) 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 has been held 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. (For that reason, it may not be that difficult to vacate a prior 11351/11358-11359/11378 conviction.)
Crime Involving Moral Turpitude (CIMT)
Yes CIMT. Note that the non-federal substance defenses do not appear prevent a CIMT. See 11377, Part 3.
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/offering, not 11378, or better yet, to plead to a non-drug offense.
Yes, inadmissible for reason to believe trafficking. Because this is a fact-based inquiry that can use evidence from outside the ROC, this ground may apply even to a conviction protected by a non-federal substance defense, or if the conviction has been vacated. If the facts of the offense show offering to give a CS away for free, it is not necessarily reason to believe “trafficking.”
Advice and Comments
Defense strategies: As with other drug offenses, counsel should try hard to plead to a non-drug offense (or, if D is likely able to complete it, to PC 1000 pretrial diversion); to simple possession if D can survive that; or to PC 372.5 or PC 32 (with a sentence of 364 days or less – but see PC 32 advice on CIMT risks) ; or to a specific non-federal CS, although this may still be a CIMT. See discussion at 11377 and at ILRC, How to Defend Immigrants Charged with Drug Offenses, including New PC 372.5 (Jan 2023). Also consider alternative pleas such as H&S C 11391, 25189.5, 459, or B&P C 4141 (sale of syringe). If none of these are possible, plead up specifically to “offering to” distribute (or sell), 11351 or 11379, which at least is not an AF in immigration proceedings within the Ninth Circuit; see above.
Refugee and Asylees: Conviction of a trafficking offense like possession for sale is a ‘particularly serious crime,’ extremely bad for asylees, refugees, and applicants for asylum. See 11379 and see § N.17 Immigration Relief Toolkit.