11364. (a) It is unlawful to possess an opium pipe or any device,
contrivance, instrument, or paraphernalia used for unlawfully
injecting or smoking (1) a controlled substance specified in
subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of
Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, specified in subdivision (b) or (c)
of Section 11055, or specified in paragraph (2) of subdivision (d)
of Section 11055, or (2) a controlled substance which is a narcotic
drug classified in Schedule III, IV, or V.
(b) This section shall not apply to hypodermic needles or syringes
that have been containerized for safe disposal in a container that
meets state and federal standards for disposal of sharps waste.
(c) Pursuant to authorization by a county, with respect to all of
the territory within the county, or a city, with respect to the
territory within in the city, for the period commencing January 1,
2005, and ending December 31, 2018, subdivision (a) shall not apply
to the possession solely for personal use of 10 or fewer hypodermic
needles or syringes if acquired from an authorized source.
11364.5. (a) Except as authorized by law, no person shall maintain
or operate any place of business in which drug paraphernalia is kept,
displayed or offered in any manner, sold, furnished, transferred or
given away unless such drug paraphernalia is completely and wholly
kept, displayed or offered within a separate room or enclosure to
which persons under the age of 18 years not accompanied by a parent
or legal guardian are excluded. Each entrance to such a room or
enclosure shall be signposted in reasonably visible and legible words
to the effect that drug paraphernalia is kept, displayed or offered
in such room or enclosure and that minors, unless accompanied by a
parent or legal guardian, are excluded.
(b) Except as authorized by law, no owner, manager, proprietor or
other person in charge of any room or enclosure, within any place of
business, in which drug paraphernalia is kept, displayed or offered
in any manner, sold, furnished, transferred or given away shall
permit or allow any person under the age of 18 years to enter, be in,
remain in or visit such room or enclosure unless such minor person
is accompanied by one of his or her parents or by his or her legal
guardian.
(c) Unless authorized by law, no person under the age of 18 years
shall enter, be in, remain in or visit any room or enclosure in any
place of business in which drug paraphernalia is kept, displayed or
offered in any manner, sold, furnished, transferred or given away
unless accompanied by one of his or her parents or by his or her
legal guardian.
(d) As used in this section, "drug paraphernalia" means all
equipment, products, and materials of any kind which are intended for
use or designed for use, in planting, propagating, cultivating,
growing, harvesting, manufacturing, compounding, converting,
producing, processing, preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing, injecting, ingesting,
inhaling, or otherwise introducing into the human body a controlled
substance. "Drug paraphernalia" includes, but is not limited to, all
of the following:
(1) Kits intended for use or designed for use in planting,
propagating, cultivating, growing or harvesting of any species of
plant which is a controlled substance or from which a controlled
substance can be derived.
(2) Kits intended for use or designed for use in manufacturing,
compounding, converting, producing, processing, or preparing
controlled substances.
(3) Isomerization devices intended for use or designed for use in
increasing the potency of any species of plant which is a controlled
substance.
(4) Testing equipment intended for use or designed for use in
identifying, or in analyzing the strength, effectiveness or purity of
controlled substances.
(5) Scales and balances intended for use or designed for use in
weighing or measuring controlled substances.
(6) Diluents and adulterants, such as quinine hydrochloride,
mannitol, mannite, dextrose, and lactose, intended for use or
designed for use in cutting controlled substances.
(7) Separation gins and sifters intended for use or designed for
use in removing twigs and seeds from, or in otherwise cleaning or
refining, marijuana.
(8) Blenders, bowls, containers, spoons, and mixing devices
intended for use or designed for use in compounding controlled
substances.
(9) Capsules, balloons, envelopes, and other containers intended
for use or designed for use in packaging small quantities of
controlled substances.
(10) Containers and other objects intended for use or designed for
use in storing or concealing controlled substances.
(11) Hypodermic syringes, needles, and other objects intended for
use or designed for use in parenterally injecting controlled
substances into the human body.
(12) Objects intended for use or designed for use in ingesting,
inhaling, or otherwise introducing marijuana, cocaine, hashish, or
hashish oil into the human body, such as the following:
(A) Metal, wooden, acrylic, glass, stone, plastic, or ceramic
pipes with or without screens, permanent screens, hashish heads, or
punctured metal bowls.
(B) Water pipes.
(C) Carburetion tubes and devices.
(D) Smoking and carburetion masks.
(E) Roach clips, meaning objects used to hold burning material,
such as a marijuana cigarette that has become too small or too short
to be held in the hand.
(F) Miniature cocaine spoons, and cocaine vials.
(G) Chamber pipes.
(H) Carburetor pipes.
(I) Electric pipes.
(J) Air-driven pipes.
(K) Chillums.
(L) Bongs.
(M) Ice pipes or chillers.
(e) In determining whether an object is drug paraphernalia, a
court or other authority may consider, in addition to all other
logically relevant factors, the following:
(1) Statements by an owner or by anyone in control of the object
concerning its use.
(2) Prior convictions, if any, of an owner, or of anyone in
control of the object, under any state or federal law relating to any
controlled substance.
(3) Direct or circumstantial evidence of the intent of an owner,
or of anyone in control of the object, to deliver it to persons whom
he or she knows, or should reasonably know, intend to use the object
to facilitate a violation of this section. The innocence of an owner,
or of anyone in control of the object, as to a direct violation of
this section shall not prevent a finding that the object is intended
for use, or designed for use, as drug paraphernalia.
(4) Instructions, oral or written, provided with the object
concerning its use.
(5) Descriptive materials, accompanying the object which explain
or depict its use.
(6) National and local advertising concerning its use.
(7) The manner in which the object is displayed for sale.
(8) Whether the owner, or anyone in control of the object, is a
legitimate supplier of like or related items to the community, such
as a licensed distributor or dealer of tobacco products.
(9) The existence and scope of legitimate uses for the object in
the community.
(10) Expert testimony concerning its use.
(f) This section shall not apply to any of the following:
(1) Any pharmacist or other authorized person who sells or
furnishes drug paraphernalia described in paragraph (11) of
subdivision (d) upon the prescription of a physician, dentist,
podiatrist or veterinarian.
(2) Any physician, dentist, podiatrist or veterinarian who
furnishes or prescribes drug paraphernalia described in paragraph
(11) of subdivision (d) to his or her patients.
(3) Any manufacturer, wholesaler or retailer licensed by the
California State Board of Pharmacy to sell or transfer drug
paraphernalia described in paragraph (11) of subdivision (d).
(g) Notwithstanding any other provision of law, including Section
11374, violation of this section shall not constitute a criminal
offense, but operation of a business in violation of the provisions
of this section shall be grounds for revocation or nonrenewal of any
license, permit, or other entitlement previously issued by a city,
county, or city and county for the privilege of engaging in such
business and shall be grounds for denial of any future license,
permit, or other entitlement authorizing the conduct of such business
or any other business, if the business includes the sale of drug
paraphernalia.
11364.7. (a) Except as authorized by law, any person who delivers,
furnishes, or transfers, possesses with intent to deliver, furnish,
or transfer, or manufactures with the intent to deliver, furnish, or
transfer, drug paraphernalia, knowing, or under circumstances where
one reasonably should know, that it will be used to plant, propagate,
cultivate, grow, harvest, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain, conceal,
inject, ingest, inhale, or otherwise introduce into the human body a
controlled substance, except as provided in subdivision (b), in
violation of this division, is guilty of a misdemeanor.
No public entity, its agents, or employees shall be subject to
criminal prosecution for distribution of hypodermic needles or
syringes to participants in clean needle and syringe exchange
projects authorized by the public entity pursuant to Chapter 18
(commencing with Section 121349) of Part 4 of Division 105.
(b) Except as authorized by law, any person who manufactures with
intent to deliver, furnish, or transfer drug paraphernalia knowing,
or under circumstances where one reasonably should know, that it will
be used to plant, propagate, cultivate, grow, harvest, manufacture,
compound, convert, produce, process, prepare, test, analyze, pack,
repack, store, contain, conceal, inject, ingest, inhale, or otherwise
introduce into the human body cocaine, cocaine base, heroin,
phencyclidine, or methamphetamine in violation of this division shall
be punished by imprisonment in a county jail for not more than one
year, or in the state prison.
(c) Except as authorized by law, any person, 18 years of age or
over, who violates subdivision (a) by delivering, furnishing, or
transferring drug paraphernalia to a person under 18 years of age who
is at least three years his or her junior, or who, upon the grounds
of a public or private elementary, vocational, junior high, or high
school, possesses a hypodermic needle, as defined in paragraph (7) of
subdivision (a) of Section 11014.5, with the intent to deliver,
furnish, or transfer the hypodermic needle, knowing, or under
circumstances where one reasonably should know, that it will be used
by a person under 18 years of age to inject into the human body a
controlled substance, is guilty of a misdemeanor and shall be
punished by imprisonment in a county jail for not more than one year,
by a fine of not more than one thousand dollars ($1,000), or by both
that imprisonment and fine.
(d) The violation, or the causing or the permitting of a
violation, of subdivision (a), (b), or (c) by a holder of a business
or liquor license issued by a city, county, or city and county, or by
the State of California, and in the course of the licensee's
business shall be grounds for the revocation of that license.
(e) All drug paraphernalia defined in Section 11014.5 is subject
to forfeiture and may be seized by any peace officer pursuant to
Section 11471.
(f) If any provision of this section or the application thereof to
any person or circumstance is held invalid, it is the intent of the
Legislature that the invalidity shall not affect other provisions or
applications of this section which can be given effect without the
invalid provision or application and to this end the provisions of
this section are severable.
11365. (a) It is unlawful to visit or to be in any room or place
where any controlled substances which are specified in subdivision
(b), (c), or (e), or paragraph (1) of subdivision (f) of Section
11054, specified in paragraph (14), (15), or (20) of subdivision (d)
of Section 11054, or specified in subdivision (b) or (c) or paragraph
(2) of subdivision (d) of Section 11055, or which are narcotic drugs
classified in Schedule III, IV, or V, are being unlawfully smoked or
used with knowledge that such activity is occurring.
(b) This section shall apply only where the defendant aids,
assists, or abets the perpetration of the unlawful smoking or use of
a controlled substance specified in subdivision (a). This subdivision
is declaratory of existing law as expressed in People v. Cressey
(1970) 2 Cal. 3d 836.
11366. Every person who opens or maintains any place for the
purpose of unlawfully selling, giving away, or using any controlled
substance which is (1) specified in subdivision (b), (c), or (e), or
paragraph (1) of subdivision (f) of Section 11054, specified in
paragraph (13), (14), (15), or (20) of subdivision (d) of Section
11054, or specified in subdivision (b), (c), paragraph (1) or (2) of
subdivision (d), or paragraph (3) of subdivision (e) of Section
11055, or (2) which is a narcotic drug classified in Schedule III,
IV, or V, shall be punished by imprisonment in the county jail for a
period of not more than one year or the state prison.
11366.5. (a) Any person who has under his or her management or
control any building, room, space, or enclosure, either as an owner,
lessee, agent, employee, or mortgagee, who knowingly rents, leases,
or makes available for use, with or without compensation, the
building, room, space, or enclosure for the purpose of unlawfully
manufacturing, storing, or distributing any controlled substance for
sale or distribution shall be punished by imprisonment in the county
jail for not more than one year, or in the state prison.
(b) Any person who has under his or her management or control any
building, room, space, or enclosure, either as an owner, lessee,
agent, employee, or mortgagee, who knowingly allows the building,
room, space, or enclosure to be fortified to suppress law enforcement
entry in order to further the sale of any amount of cocaine base as
specified in paragraph (1) of subdivision (f) of Section 11054,
cocaine as specified in paragraph (6) of subdivision (b) of Section
11055, heroin, phencyclidine, amphetamine, methamphetamine, or
lysergic acid diethylamide and who obtains excessive profits from the
use of the building, room, space, or enclosure shall be punished by
imprisonment in the state prison for two, three, or four years.
(c) Any person who violates subdivision (a) after previously being
convicted of a violation of subdivision (a) shall be punished by
imprisonment in the state prison for two, three, or four years.
(d) For the purposes of this section, "excessive profits" means
the receipt of consideration of a value substantially higher than
fair market value.
11366.6. Any person who utilizes a building, room, space, or
enclosure specifically designed to suppress law enforcement entry in
order to sell, manufacture, or possess for sale any amount of cocaine
base as specified in paragraph (1) of subdivision (f) of Section
11054, cocaine as specified in paragraph (6) of subdivision (b) of
Section 11055, heroin, phencyclidine, amphetamine, methamphetamine,
or lysergic acid diethylamide shall be punished by imprisonment in
the state prison for three, four, or five years.
11366.7. (a) This section shall apply to the following:
(1) Any chemical or drug.
(2) Any laboratory apparatus or device.
(b) Any retailer or wholesaler who sells any item in paragraph (1)
or (2) of subdivision (a) with knowledge or the intent that it will
be used to unlawfully manufacture, compound, convert, process, or
prepare a controlled substance for unlawful sale or distribution,
shall be punished by imprisonment in a county jail for not more than
one year, or in the state prison, or by a fine not exceeding
twenty-five thousand dollars ($25,000), or by both that imprisonment
and fine. Any fine collected pursuant to this section shall be
distributed as specified in Section 1463.10 of the Penal Code.
11366.8. (a) Every person who possesses, uses, or controls a false
compartment with the intent to store, conceal, smuggle, or transport
a controlled substance within the false compartment shall be punished
by imprisonment in a county jail for a term of imprisonment not to
exceed one year or in the state prison.
(b) Every person who designs, constructs, builds, alters, or
fabricates a false compartment for, or installs or attaches a false
compartment to, a vehicle with the intent to store, conceal, smuggle,
or transport a controlled substance shall be punished by
imprisonment in the state prison for 16 months or two or three years.
(c) The term "vehicle" means any of the following vehicles without
regard to whether the vehicles are private or commercial, including,
but not limited to, cars, trucks, buses, aircraft, boats, ships,
yachts, and vessels.
(d) The term "false compartment" means any box, container, space,
or enclosure that is intended for use or designed for use to conceal,
hide, or otherwise prevent discovery of any controlled substance
within or attached to a vehicle, including, but not limited to, any
of the following:
(1) False, altered, or modified fuel tanks.
(2) Original factory equipment of a vehicle that is modified,
altered, or changed.
(3) Compartment, space, or box that is added to, or fabricated,
made, or created from, existing compartments, spaces, or boxes within
a vehicle.
11367. All duly authorized peace officers, while investigating
violations of this division in performance of their official duties,
and any person working under their immediate direction, supervision
or instruction, are immune from prosecution under this division.
11367.5. (a) Any sheriff, chief of police, the Chief of the Bureau
of Narcotic Enforcement, or the Commissioner of the California
Highway Patrol, or a designee thereof, may, in his or her discretion,
provide controlled substances in his or her possession and control
to any duly authorized peace officer or civilian drug detection
canine trainer working under the direction of a law enforcement
agency, provided the controlled substances are no longer needed as
criminal evidence and provided the person receiving the controlled
substances, if required by the Drug Enforcement Administration,
possesses a current and valid Drug Enforcement Administration
registration which specifically authorizes the recipient to possess
controlled substances while providing substance abuse training to law
enforcement or the community or while providing canine drug
detection training.
(b) All duly authorized peace officers, while providing substance
abuse training to law enforcement or the community or while providing
canine drug detection training, in performance of their official
duties, and any person working under their immediate direction,
supervision, or instruction, are immune from prosecution under this
division.
(c) (1) Any person receiving controlled substances pursuant to
subdivision (a) shall maintain custody and control of the controlled
substances and shall keep records regarding any loss of, or damage
to, those controlled substances.
(2) All controlled substances shall be maintained in a secure
location approved by the dispensing agency.
(3) Any loss shall be reported immediately to the dispensing
agency.
(4) All controlled substances shall be returned to the dispensing
agency upon the conclusion of the training or upon demand by the
dispensing agency.
11368. Every person who forges or alters a prescription or who
issues or utters an altered prescription, or who issues or utters a
prescription bearing a forged or fictitious signature for any
narcotic drug, or who obtains any narcotic drug by any forged,
fictitious, or altered prescription, or who has in possession any
narcotic drug secured by a forged, fictitious, or altered
prescription, shall be punished by imprisonment in the county jail
for not less than six months nor more than one year, or in the state
prison.
11369. When there is reason to believe that any person arrested for
a violation of Section 11350, 11351, 11351.5, 11352, 11353, 11355,
11357, 11359, 11360, 11361, 11363, 11366, 11368 or 11550, may not be
a citizen of the United States, the arresting agency shall notify the
appropriate agency of the United States having charge of deportation
matters.
11370. (a) Any person convicted of violating Section 11350, 11351,
11351.5, 11352, 11353, 11355, 11357, 11359, 11360, 11361, 11363,
11366, or 11368, or of committing any offense referred to in those
sections, shall not, in any case, be granted probation by the trial
court or have the execution of the sentence imposed upon him or her
suspended by the court, if he or she has been previously convicted of
any offense described in subdivision (c).
(b) Any person who was 18 years of age or over at the time of the
commission of the offense and is convicted for the first time of
selling, furnishing, administering, or giving a controlled substance
which is (1) specified in subdivision (b), (c), (e), or paragraph (1)
of subdivision (f) of Section 11054, specified in paragraph (14),
(15), or (20) of subdivision (d) of Section 11054, or specified in
subdivision (b) or (c) of Section 11055, or (2) which is a narcotic
drug classified in Schedule III, IV, or V, to a minor or inducing a
minor to use such a controlled substance in violation of law shall
not, in any case, be granted probation by the trial court or have the
execution of the sentence imposed upon him or her suspended by the
court.
(c) Any previous conviction of any of the following offenses, or
of an offense under the laws of another state or of the United States
which, if committed in this state, would have been punishable as
such an offense, shall render a person ineligible for probation or
suspension of sentence pursuant to subdivision (a) of this section:
(1) Any felony offense described in this division involving a
controlled substance specified in subdivision (b), (c), (e), or
paragraph (1) of subdivision (f) of Section 11054, specified in
paragraph (13), (14), (15), or (20) of subdivision (d) of Section
11054, or specified in subdivision (b) or (c) of Section 11055.
(2) Any felony offense described in this division involving a
narcotic drug classified in Schedule III, IV, or V.
(d) The existence of any previous conviction or fact which would
make a person ineligible for suspension of sentence or probation
under this section shall be alleged in the information or indictment,
and either admitted by the defendant in open court, or found to be
true by the jury trying the issue of guilt or by the court where
guilt is established by a plea of guilty or nolo contendere or by
trial by the court sitting without a jury.
11370.1. (a) Notwithstanding Section 11350 or 11377 or any other
provision of law, every person who unlawfully possesses any amount of
a substance containing cocaine base, a substance containing cocaine,
a substance containing heroin, a substance containing
methamphetamine, a crystalline substance containing phencyclidine, a
liquid substance containing phencyclidine, plant material containing
phencyclidine, or a hand-rolled cigarette treated with phencyclidine
while armed with a loaded, operable firearm is guilty of a felony
punishable by imprisonment in the state prison for two, three, or
four years.
As used in this subdivision, "armed with" means having available
for immediate offensive or defensive use.
(b) Any person who is convicted under this section shall be
ineligible for diversion or deferred entry of judgment under Chapter
2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal
Code.
11370.2. (a) Any person convicted of a violation of, or of a
conspiracy to violate, Section 11351, 11351.5, or 11352 shall
receive, in addition to any other punishment authorized by law,
including Section 667.5 of the Penal Code, a full, separate, and
consecutive three-year term for each prior felony conviction of, or
for each prior felony conviction of conspiracy to violate, Section
11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6,
11380, 11380.5, or 11383, whether or not the prior conviction
resulted in a term of imprisonment.
(b) Any person convicted of a violation of, or of a conspiracy to
violate, Section 11378.5, 11379.5, 11379.6, 11380.5, or 11383 shall
receive, in addition to any other punishment authorized by law,
including Section 667.5 of the Penal Code, a full, separate, and
consecutive three-year term for each prior felony conviction of, or
for each prior felony conviction of conspiracy to violate, Section
11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6,
11380, 11380.5, or 11383, whether or not the prior conviction
resulted in a term of imprisonment.
(c) Any person convicted of a violation of, or of a conspiracy to
violate, Section 11378 or 11379 with respect to any substance
containing a controlled substance specified in paragraph (1) or (2)
of subdivision (d) of Section 11055 shall receive, in addition to any
other punishment authorized by law, including Section 667.5 of the
Penal Code, a full, separate, and consecutive three-year term for
each prior felony conviction of, or for each prior felony conviction
of conspiracy to violate, Section 11351, 11351.5, 11352, 11378,
11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether
or not the prior conviction resulted in a term of imprisonment.
(d) The enhancements provided for in this section shall be pleaded
and proven as provided by law.
(e) The conspiracy enhancements provided for in this section shall
not be imposed unless the trier of fact finds that the defendant
conspirator was substantially involved in the planning, direction,
execution, or financing of the underlying offense.
(f) Prior convictions from another jurisdiction qualify for use
under this section pursuant to Section 668.
11370.4. (a) Any person convicted of a violation of, or of a
conspiracy to violate, Section 11351, 11351.5, or 11352 with respect
to a substance containing heroin, cocaine base as specified in
paragraph (1) of subdivision (f) of Section 11054, or cocaine as
specified in paragraph (6) of subdivision (b) of Section 11055 shall
receive an additional term as follows:
(1) Where the substance exceeds one kilogram by weight, the person
shall receive an additional term of three years.
(2) Where the substance exceeds four kilograms by weight, the
person shall receive an additional term of five years.
(3) Where the substance exceeds 10 kilograms by weight, the person
shall receive an additional term of 10 years.
(4) Where the substance exceeds 20 kilograms by weight, the person
shall receive an additional term of 15 years.
(5) Where the substance exceeds 40 kilograms by weight, the person
shall receive an additional term of 20 years.
(6) Where the substance exceeds 80 kilograms by weight, the person
shall receive an additional term of 25 years.
The conspiracy enhancements provided for in this subdivision shall
not be imposed unless the trier of fact finds that the defendant
conspirator was substantially involved in the planning, direction,
execution, or financing of the underlying offense.
(b) Any person convicted of a violation of, or of conspiracy to
violate, Section 11378, 11378.5, 11379, or 11379.5 with respect to a
substance containing methamphetamine, amphetamine, phencyclidine
(PCP) and its analogs shall receive an additional term as follows:
(1) Where the substance exceeds one kilogram by weight, or 30
liters by liquid volume, the person shall receive an additional term
of three years.
(2) Where the substance exceeds four kilograms by weight, or 100
liters by liquid volume, the person shall receive an additional term
of five years.
(3) Where the substance exceeds 10 kilograms by weight, or 200
liters by liquid volume, the person shall receive an additional term
of 10 years.
(4) Where the substance exceeds 20 kilograms by weight, or 400
liters by liquid volume, the person shall receive an additional term
of 15 years.
In computing the quantities involved in this subdivision, plant or
vegetable material seized shall not be included.
The conspiracy enhancements provided for in this subdivision shall
not be imposed unless the trier of fact finds that the defendant
conspirator was substantially involved in the planning, direction,
execution, or financing of the underlying offense.
(c) The additional terms provided in this section shall not be
imposed unless the allegation that the weight of the substance
containing heroin, cocaine base as specified in paragraph (1) of
subdivision (f) of Section 11054, cocaine as specified in paragraph
(6) of subdivision (b) of Section 11055, methamphetamine,
amphetamine, or phencyclidine (PCP) and its analogs exceeds the
amounts provided in this section is charged in the accusatory
pleading and admitted or found to be true by the trier of fact.
(d) The additional terms provided in this section shall be in
addition to any other punishment provided by law.
(e) Notwithstanding any other provision of law, the court may
strike the additional punishment for the enhancements provided in
this section if it determines that there are circumstances in
mitigation of the additional punishment and states on the record its
reasons for striking the additional punishment.
11370.6. (a) Every person who possesses any moneys or negotiable
instruments in excess of one hundred thousand dollars ($100,000)
which have been obtained as the result of the unlawful sale,
possession for sale, transportation, manufacture, offer for sale, or
offer to manufacture any controlled substance listed in Section
11054, 11055, 11056, 11057, or 11058, with knowledge that the moneys
or negotiable instruments have been so obtained, and any person who
possesses any moneys or negotiable instruments in excess of one
hundred thousand dollars ($100,000) which are intended by that person
for the unlawful purchase of any controlled substance listed in
Section 11054, 11055, 11056, 11057, or 11058 and who commits an act
in substantial furtherance of the unlawful purchase, shall be
punished by imprisonment in the county jail for a term not to exceed
one year, or by imprisonment in the state prison for two, three, or
four years.
(b) In consideration of the constitutional right to counsel
afforded by the Sixth Amendment to the United States Constitution and
Section 15 of Article 1 of the California Constitution, when a case
charged under subdivision (a) involves an attorney who accepts a fee
for representing a client in a criminal investigation or proceeding,
the prosecution shall additionally be required to prove that the
moneys or negotiable instruments were accepted by the attorney with
the intent to participate in the unlawful conduct described in
subdivision (a) or to disguise or aid in disguising the source of the
funds or the nature of the criminal activity.
(c) In determining the guilt or innocence of a person charged
under subdivision (a), the trier of fact may consider the following
in addition to any other relevant evidence:
(1) The lack of gainful employment by the person charged.
(2) The expert opinion of a qualified controlled substances expert
as to the source of the assets.
(3) The existence of documents or ledgers that indicate sales of
controlled substances.
11370.9. (a) It is unlawful for any person knowingly to receive or
acquire proceeds, or engage in a transaction involving proceeds,
known to be derived from any violation of this division or Division
10.1 with the intent to conceal or disguise or aid in concealing or
disguising the nature, location, ownership, control, or source of the
proceeds or to avoid a transaction reporting requirement under state
or federal law.
(b) It is unlawful for any person knowingly to give, sell,
transfer, trade, invest, conceal, transport, or maintain an interest
in, or otherwise make available, anything of value which that person
knows is intended to be used for the purpose of committing, or
furthering the commission of, any violation of this division or
Division 10.1 with the intent to conceal or disguise or aid in
concealing or disguising the nature, location, ownership, control, or
source of the proceeds or to avoid a transaction reporting
requirement under state or federal law.
(c) It is unlawful for any person knowingly to direct, plan,
organize, initiate, finance, manage, supervise, or facilitate the
transportation or transfer of proceeds known to be derived from any
violation of this division or Division 10.1 with the intent to
conceal or disguise or aid in concealing or disguising the nature,
location, ownership, control, or source of the proceeds or to avoid a
transaction reporting requirement under state or federal law.
(d) It is unlawful for any person knowingly to conduct a
transaction involving proceeds derived from a violation of this
division or Division 10.1 when the transaction is designed in whole
or in part to conceal or disguise the nature, location, source,
ownership, or control of the proceeds known to be derived from a
violation of this division or Division 10.1 with the intent to
conceal or disguise or aid in concealing or disguising the nature,
location, ownership, control, or source of the proceeds or to avoid a
transaction reporting requirement under state or federal law.
(e) A violation of this section shall be punished by imprisonment
in a county jail for not more than one year or in the state prison
for a period of two, three, or four years, by a fine of not more than
two hundred fifty thousand dollars ($250,000) or twice the value of
the proceeds or property involved in the violation, whichever is
greater, or by both that imprisonment and fine. Notwithstanding any
other provision of law, each violation of this section shall
constitute a separate, punishable offense without limitation.
(f) This section shall apply only to a transaction, or series of
related transactions within a 30-day period, involving over
twenty-five thousand dollars ($25,000) or to proceeds of a value
exceeding twenty-five thousand dollars ($25,000).
(g) In consideration of the constitutional right to counsel
afforded by the Sixth Amendment to the United States Constitution and
Section 15 of Article 1 of the California Constitution, this section
is not intended to apply to the receipt of, or a related transaction
involving, a fee by an attorney for the purpose of providing advice
or representing a person in a criminal investigation or prosecution.
(h) For the purposes of this section, the following terms have the
following meanings:
(1) "Proceeds" means property acquired or derived directly or
indirectly from, produced through, or realized through any violation
of this division or Division 10.1.
(2) "Transaction" includes a purchase, sale, trade, loan, pledge,
investment, gift, transfer, transmission, delivery, deposit,
withdrawal, payment, electronic, magnetic, or manual transfer between
accounts, exchange of currency, extension of credit, purchase or
sale of any monetary instrument, or any other acquisition or
disposition of property by whatever means effected.
(3) "Represented by a law enforcement officer" means any
representation of fact made by a peace officer as defined in Section
7 of the Penal Code, or a federal officer described in subsection (e)
of Sections 1956 and 1957 of Title 18 of the United States Code, or
by another person at the direction of, or with the approval of, that
peace officer or federal officer.
11371. Any person who shall knowingly violate any of the provisions
of Section 11153, 11154, 11155, or 11156 with respect to (1) a
controlled substance specified in subdivision (b), (c), or (d) of
Section 11055, or (2) a controlled substance specified in paragraph
(1) of subdivision (b) of Section 11056, or (3) a controlled
substance which is a narcotic drug classified in Schedule III, IV, or
V, or who in any voluntary manner solicits, induces, encourages or
intimidates any minor with the intent that such minor shall commit
any such offense, shall be punished by imprisonment in the state
prison or in a county jail not exceeding one year, or by a fine not
exceeding twenty thousand dollars ($20,000), or by both such fine and
imprisonment.
11371.1. Any person who shall knowingly violate any of the
provisions of Section 11173 or 11174 with respect to (1) a controlled
substance specified in subdivision (b), (c), or (d) of Section
11055, or (2) a controlled substance specified in paragraph (1) of
subdivision (b) of Section 11056, or (3) a controlled substance which
is a narcotic drug classified in Schedule III, IV, or V, or who in
any voluntary manner solicits, induces, encourages or intimidates any
minor with the intent that such minor shall commit any such offense,
shall be punished by imprisonment in the state prison, or in a
county jail not exceeding one year.
11372. (a) In addition to the term of imprisonment provided by law
for persons convicted of violating Section 11350, 11351, 11351.5,
11352, 11353, 11355, 11359, 11360, or 11361, the trial court may
impose a fine not exceeding twenty thousand dollars ($20,000) for
each offense. In no event shall a fine be levied in lieu of or in
substitution for the term of imprisonment provided by law for any of
these offenses.
(b) Any person receiving an additional term pursuant to paragraph
(1) of subdivision (a) of Section 11370.4, may, in addition, be fined
by an amount not exceeding one million dollars ($1,000,000) for each
offense.
(c) Any person receiving an additional term pursuant to paragraph
(2) of subdivision (a) of Section 11370.4, may, in addition, be fined
by an amount not to exceed four million dollars ($4,000,000) for
each offense.
(d) Any person receiving an additional term pursuant to paragraph
(3) of subdivision (a) of Section 11370.4, may, in addition, be fined
by an amount not to exceed eight million dollars ($8,000,000) for
each offense.
(e) The court shall make a finding, prior to the imposition of the
fines authorized by subdivisions (b) to (e), inclusive, that there
is a reasonable expectation that the fine, or a substantial portion
thereof, could be collected within a reasonable period of time,
taking into consideration the defendant's income, earning capacity,
and financial resources.
11372.5. (a) Every person who is convicted of a violation of
Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361,
11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5,
11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or
subdivision (a) or (c) of Section 11357, or subdivision (a) of
Section 11360 of this code, or Section 4230 of the Business and
Professions Code shall pay a criminal laboratory analysis fee in the
amount of fifty dollars ($50) for each separate offense. The court
shall increase the total fine necessary to include this increment.
With respect to those offenses specified in this subdivision for
which a fine is not authorized by other provisions of law, the court
shall, upon conviction, impose a fine in an amount not to exceed
fifty dollars ($50), which shall constitute the increment prescribed
by this section and which shall be in addition to any other penalty
prescribed by law.
(b) The county treasurer shall maintain a criminalistics
laboratories fund. The sum of fifty dollars ($50) shall be deposited
into the fund for every conviction under Section 11350, 11351,
11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368,
11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380,
11380.5, 11382, 11383, 11390, 11391, or 11550, subdivision (a) or (c)
of Section 11357, or subdivision (a) of Section 11360 of this code,
or Section 4230 of the Business and Professions Code, in addition to
fines, forfeitures, and other moneys which are transmitted by the
courts to the county treasurer pursuant to Section 11502. The
deposits shall be made prior to any transfer pursuant to Section
11502. The county may retain an amount of this money equal to its
administrative cost incurred pursuant to this section. Moneys in the
criminalistics laboratories fund shall, except as otherwise provided
in this section, be used exclusively to fund (1) costs incurred by
criminalistics laboratories providing microscopic and chemical
analyses for controlled substances, in connection with criminal
investigations conducted within both the incorporated or
unincorporated portions of the county, (2) the purchase and
maintenance of equipment for use by these laboratories in performing
the analyses, and (3) for continuing education, training, and
scientific development of forensic scientists regularly employed by
these laboratories. Moneys in the criminalistics laboratory fund
shall be in addition to any allocations pursuant to existing law. As
used in this section, "criminalistics laboratory" means a laboratory
operated by, or under contract with, a city, county, or other public
agency, including a criminalistics laboratory of the Department of
Justice, (1) which has not less than one regularly employed forensic
scientist engaged in the analysis of solid-dose controlled
substances, and (2) which is registered as an analytical laboratory
with the Drug Enforcement Administration of the United States
Department of Justice for the possession of all scheduled controlled
substances. In counties served by criminalistics laboratories of the
Department of Justice, amounts deposited in the criminalistics
laboratories fund, after deduction of appropriate and reasonable
county overhead charges not to exceed 5 percent attributable to the
collection thereof, shall be paid by the county treasurer once a
month to the Controller for deposit into the state General Fund, and
shall be excepted from the expenditure requirements otherwise
prescribed by this subdivision.
(c) The county treasurer shall, at the conclusion of each fiscal
year, determine the amount of any funds remaining in the special fund
established pursuant to this section after expenditures for that
fiscal year have been made for the purposes herein specified. The
board of supervisors may, by resolution, assign the treasurer's duty
to determine the amount of remaining funds to the auditor or another
county officer. The county treasurer shall annually distribute those
surplus funds in accordance with the allocation scheme for
distribution of fines and forfeitures set forth in Section 11502.
11372.7. (a) Except as otherwise provided in subdivision (b) or
(e), each person who is convicted of a violation of this chapter
shall pay a drug program fee in an amount not to exceed one hundred
fifty dollars ($150) for each separate offense. The court shall
increase the total fine, if necessary, to include this increment,
which shall be in addition to any other penalty prescribed by law.
(b) The court shall determine whether or not the person who is
convicted of a violation of this chapter has the ability to pay a
drug program fee. If the court determines that the person has the
ability to pay, the court may set the amount to be paid and order the
person to pay that sum to the county in a manner that the court
believes is reasonable and compatible with the person's financial
ability. In its determination of whether a person has the ability to
pay, the court shall take into account the amount of any fine imposed
upon that person and any amount that person has been ordered to pay
in restitution. If the court determines that the person does not have
the ability to pay a drug program fee, the person shall not be
required to pay a drug program fee.
(c) The county treasurer shall maintain a drug program fund. For
every drug program fee assessed and collected pursuant to
subdivisions (a) and (b), an amount equal to this assessment shall be
deposited into the fund for every conviction pursuant to this
chapter, in addition to fines, forfeitures, and other moneys which
are transmitted by the courts to the county treasurer pursuant to
Sections 11372.5 and 11502. These deposits shall be made prior to any
transfer pursuant to Section 11502. Amounts deposited in the drug
program fund shall be allocated by the administrator of the county's
drug program to drug abuse programs in the schools and the community,
subject to the approval of the board of supervisors, as follows:
(1) The moneys in the fund shall be allocated through the planning
process established pursuant to Sections 11983, 11983.1, 11983.2,
and 11983.3.
(2) A minimum of 33 percent of the fund shall be allocated to
primary prevention programs in the schools and the community. Primary
prevention programs developed and implemented under this article
shall emphasize cooperation in planning and program implementation
among schools and community drug abuse agencies, and shall
demonstrate coordination through an interagency agreement among
county offices of education, school districts, and the county drug
program administrator. These primary prevention programs may include:
(A) School- and classroom-oriented programs, including, but not
limited to, programs designed to encourage sound decisionmaking, an
awareness of values, an awareness of drugs and their effects,
enhanced self-esteem, social and practical skills that will assist
students toward maturity, enhanced or improved school climate and
relationships among all school personnel and students, and
furtherance of cooperative efforts of school- and community-based
personnel.
(B) School- or community-based nonclassroom alternative programs,
or both, including, but not limited to, positive peer group programs,
programs involving youth and adults in constructive activities
designed as alternatives to drug use, and programs for special target
groups, such as women, ethnic minorities, and other high-risk,
high-need populations.
(C) Family-oriented programs, including, but not limited to,
programs aimed at improving family relationships and involving
parents constructively in the education and nurturing of their
children, as well as in specific activities aimed at preventing drug
abuse.
(d) Moneys deposited into a county drug program fund pursuant to
this section shall supplement, and shall not supplant, any local
funds made available to support the county's drug abuse prevention
and treatment efforts.
(e) This section shall not apply to any person convicted of a
violation of subdivision (b) of Section 11357 of the Health and
Safety Code.
11373. (a) Whenever any person who is otherwise eligible for
probation is granted probation by the trial court after conviction
for a violation of any controlled substance offense under this
division, the trial court shall, as a condition of probation, order
that person to secure education or treatment from a local community
agency designated by the court, if the service is available and the
person is likely to benefit from the service.
If the defendant is a minor, the trial court shall also order his
or her parents or guardian to participate in the education or
treatment to the extent the court determines that participation will
aid the education or treatment of the minor.
If a minor is found by a juvenile court to have been in possession
of any controlled substance, in addition to any other order it may
make, the juvenile court shall order the minor to receive education
or treatment from a local community agency designated by the court,
if the service is available and the person is likely to benefit from
the service, and it shall also order his or her parents or guardian
to participate in the education or treatment to the extent the court
determines that participation will aid the education or treatment of
the minor.
(b) The willful failure to complete a court ordered education or
treatment program shall be a circumstance in aggravation for purposes
of sentencing for any subsequent prosecution for a violation of
Section 11353, 11354, or 11380. The failure to complete an education
or treatment program because of the person's inability to pay the
costs of the program or because of the unavailability to the
defendant of appropriate programs is not a willful failure to
complete the program.
11374. Every person who violates or fails to comply with any
provision of this division, except one for which a penalty is
otherwise in this division specifically provided, is guilty of a
misdemeanor punishable by a fine in a sum not less than thirty
dollars ($30) nor more than five hundred dollars ($500), or by
imprisonment for not less than 15 nor more than 180 days, or by both.
11374.5. (a) Any manufacturer of a controlled substance who
disposes of any hazardous substance that is a controlled substance or
a chemical used in, or is a byproduct of, the manufacture of a
controlled substance in violation of any law regulating the disposal
of hazardous substances or hazardous waste is guilty of a public
offense punishable by imprisonment in the state prison for two,
three, or four years or in the county jail not exceeding one year.
(b) (1) In addition to any other penalty or liability imposed by
law, a person who is convicted of violating subdivision (a), or any
person who is convicted of the manufacture, sale, possession for
sale, possession, transportation, or disposal of any hazardous
substance that is a controlled substance or a chemical used in, or is
a byproduct of, the manufacture of a controlled substance in
violation of any law, shall pay a penalty equal to the amount of the
actual cost incurred by the state or local agency to remove and
dispose of the hazardous substance that is a controlled substance or
a chemical used in, or is a byproduct of, the manufacture of a
controlled substance and to take removal action with respect to any
release of the hazardous substance or any items or materials
contaminated by that release, if the state or local agency requests
the prosecuting authority to seek recovery of that cost. The court
shall transmit all penalties collected pursuant to this subdivision
to the county treasurer of the county in which the court is located
for deposit in a special account in the county treasury. The county
treasurer shall pay that money at least once a month to the agency
that requested recovery of the cost for the removal action. The
county may retain up to 5 percent of any assessed penalty for
appropriate and reasonable administrative costs attributable to the
collection and disbursement of the penalty.
(2) If the Department of Toxic Substances Control has requested
recovery of the cost of removing the hazardous substance that is a
controlled substance or a chemical used in, or is a byproduct of, the
manufacture of a controlled substance or taking removal action with
respect to any release of the hazardous substance, the county
treasurer shall transfer funds in the amount of the penalty collected
to the Treasurer, who shall deposit the money in the Illegal Drug
Lab Cleanup Account, which is hereby created in the General Fund in
the State Treasury. The Department of Toxic Substances Control may
expend the money in the Illegal Drug Lab Cleanup Account, upon
appropriation by the Legislature, to cover the cost of taking removal
actions pursuant to Section 25354.5.
(3) If a local agency and the Department of Toxic Substances
Control have both requested recovery of removal costs with respect to
a hazardous substance that is a controlled substance or a chemical
used in, or is a byproduct of, the manufacture of a controlled
substance, the county treasurer shall apportion any penalty collected
among the agencies involved in proportion to the costs incurred.
(c) As used in this section the following terms have the following
meaning:
(1) "Dispose" means to abandon, deposit, intern, or otherwise
discard as a final action after use has been achieved or a use is no
longer intended.
(2) "Hazardous substance" has the same meaning as defined in
Section 25316.
(3) "Hazardous waste" has the same meaning as defined in Section
25117.
(4) For purposes of this section, "remove" or "removal" has the
same meaning as set forth in Section 25323.
11375. (a) As to the substances specified in subdivision (c), this
section, and not Sections 11377, 11378, 11379, and 11380, shall
apply.
(b) (1) Every person who possesses for sale, or who sells, any
substance specified in subdivision (c) shall be punished by
imprisonment in the county jail for a period of not more than one
year or state prison.
(2) Every person who possesses any controlled substance specified
in subdivision (c), unless upon the prescription of a physician,
dentist, podiatrist, or veterinarian, licensed to practice in this
state, shall be guilty of an infraction or a misdemeanor.
(c) This section shall apply to any material, compound, mixture,
or preparation containing any of the following substances:
(1) Chlordiazepoxide.
(2) Clonazepam.
(3) Clorazepate.
(4) Diazepam.
(5) Flurazepam.
(6) Lorazepam.
(7) Mebutamate.
(8) Oxazepam.
(9) Prazepam.
(10) Temazepam.
(11) Halazepam.
(12) Alprazolam.
(13) Propoxyphene.
(14) Diethylpropion.
(15) Phentermine.
(16) Pemoline.
(17) Fenfluramine.
(18) Triazolam.
11375. (a) As to the substances specified in subdivision (c), this
section, and not Sections 11377, 11378, 11379, and 11380, shall
apply.
(b) (1) Every person who possesses for sale, or who sells, any
substance specified in subdivision (c) shall be punished by
imprisonment in the county jail for a period of not more than one
year or state prison.
(2) Every person who possesses any controlled substance specified
in subdivision (c), unless upon the prescription of a physician,
dentist, podiatrist, or veterinarian, licensed to practice in this
state, shall be guilty of an infraction or a misdemeanor.
(c) This section shall apply to any material, compound, mixture,
or preparation containing any of the following substances:
(1) Chlordiazepoxide.
(2) Clonazepam.
(3) Clorazepate.
(4) Diazepam.
(5) Flurazepam.
(6) Lorazepam.
(7) Mebutamate.
(8) Oxazepam.
(9) Prazepam.
(10) Temazepam.
(11) Halazepam.
(12) Alprazolam.
(13) Propoxyphene.
(14) Diethylpropion.
(15) Phentermine.
(16) Pemoline.
(17) Triazolam.
11376. Upon the diversion or conviction of a person for any offense
involving substance abuse, the court may require, in addition to any
or all other terms of diversion or imprisonment, fine, or other
reasonable conditions of sentencing or probation imposed by the
court, that the defendant participate in and complete counseling or
education programs, or both, including, but not limited to, parent
education or parenting programs operated by community colleges,
school districts, other public agencies, or private agencies.
11364. (a) It is unlawful to possess an opium pipe or any device,
contrivance, instrument, or paraphernalia used for unlawfully
injecting or smoking (1) a controlled substance specified in
subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of
Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, specified in subdivision (b) or (c)
of Section 11055, or specified in paragraph (2) of subdivision (d)
of Section 11055, or (2) a controlled substance which is a narcotic
drug classified in Schedule III, IV, or V.
(b) This section shall not apply to hypodermic needles or syringes
that have been containerized for safe disposal in a container that
meets state and federal standards for disposal of sharps waste.
(c) Pursuant to authorization by a county, with respect to all of
the territory within the county, or a city, with respect to the
territory within in the city, for the period commencing January 1,
2005, and ending December 31, 2018, subdivision (a) shall not apply
to the possession solely for personal use of 10 or fewer hypodermic
needles or syringes if acquired from an authorized source.
11364.5. (a) Except as authorized by law, no person shall maintain
or operate any place of business in which drug paraphernalia is kept,
displayed or offered in any manner, sold, furnished, transferred or
given away unless such drug paraphernalia is completely and wholly
kept, displayed or offered within a separate room or enclosure to
which persons under the age of 18 years not accompanied by a parent
or legal guardian are excluded. Each entrance to such a room or
enclosure shall be signposted in reasonably visible and legible words
to the effect that drug paraphernalia is kept, displayed or offered
in such room or enclosure and that minors, unless accompanied by a
parent or legal guardian, are excluded.
(b) Except as authorized by law, no owner, manager, proprietor or
other person in charge of any room or enclosure, within any place of
business, in which drug paraphernalia is kept, displayed or offered
in any manner, sold, furnished, transferred or given away shall
permit or allow any person under the age of 18 years to enter, be in,
remain in or visit such room or enclosure unless such minor person
is accompanied by one of his or her parents or by his or her legal
guardian.
(c) Unless authorized by law, no person under the age of 18 years
shall enter, be in, remain in or visit any room or enclosure in any
place of business in which drug paraphernalia is kept, displayed or
offered in any manner, sold, furnished, transferred or given away
unless accompanied by one of his or her parents or by his or her
legal guardian.
(d) As used in this section, "drug paraphernalia" means all
equipment, products, and materials of any kind which are intended for
use or designed for use, in planting, propagating, cultivating,
growing, harvesting, manufacturing, compounding, converting,
producing, processing, preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing, injecting, ingesting,
inhaling, or otherwise introducing into the human body a controlled
substance. "Drug paraphernalia" includes, but is not limited to, all
of the following:
(1) Kits intended for use or designed for use in planting,
propagating, cultivating, growing or harvesting of any species of
plant which is a controlled substance or from which a controlled
substance can be derived.
(2) Kits intended for use or designed for use in manufacturing,
compounding, converting, producing, processing, or preparing
controlled substances.
(3) Isomerization devices intended for use or designed for use in
increasing the potency of any species of plant which is a controlled
substance.
(4) Testing equipment intended for use or designed for use in
identifying, or in analyzing the strength, effectiveness or purity of
controlled substances.
(5) Scales and balances intended for use or designed for use in
weighing or measuring controlled substances.
(6) Diluents and adulterants, such as quinine hydrochloride,
mannitol, mannite, dextrose, and lactose, intended for use or
designed for use in cutting controlled substances.
(7) Separation gins and sifters intended for use or designed for
use in removing twigs and seeds from, or in otherwise cleaning or
refining, marijuana.
(8) Blenders, bowls, containers, spoons, and mixing devices
intended for use or designed for use in compounding controlled
substances.
(9) Capsules, balloons, envelopes, and other containers intended
for use or designed for use in packaging small quantities of
controlled substances.
(10) Containers and other objects intended for use or designed for
use in storing or concealing controlled substances.
(11) Hypodermic syringes, needles, and other objects intended for
use or designed for use in parenterally injecting controlled
substances into the human body.
(12) Objects intended for use or designed for use in ingesting,
inhaling, or otherwise introducing marijuana, cocaine, hashish, or
hashish oil into the human body, such as the following:
(A) Metal, wooden, acrylic, glass, stone, plastic, or ceramic
pipes with or without screens, permanent screens, hashish heads, or
punctured metal bowls.
(B) Water pipes.
(C) Carburetion tubes and devices.
(D) Smoking and carburetion masks.
(E) Roach clips, meaning objects used to hold burning material,
such as a marijuana cigarette that has become too small or too short
to be held in the hand.
(F) Miniature cocaine spoons, and cocaine vials.
(G) Chamber pipes.
(H) Carburetor pipes.
(I) Electric pipes.
(J) Air-driven pipes.
(K) Chillums.
(L) Bongs.
(M) Ice pipes or chillers.
(e) In determining whether an object is drug paraphernalia, a
court or other authority may consider, in addition to all other
logically relevant factors, the following:
(1) Statements by an owner or by anyone in control of the object
concerning its use.
(2) Prior convictions, if any, of an owner, or of anyone in
control of the object, under any state or federal law relating to any
controlled substance.
(3) Direct or circumstantial evidence of the intent of an owner,
or of anyone in control of the object, to deliver it to persons whom
he or she knows, or should reasonably know, intend to use the object
to facilitate a violation of this section. The innocence of an owner,
or of anyone in control of the object, as to a direct violation of
this section shall not prevent a finding that the object is intended
for use, or designed for use, as drug paraphernalia.
(4) Instructions, oral or written, provided with the object
concerning its use.
(5) Descriptive materials, accompanying the object which explain
or depict its use.
(6) National and local advertising concerning its use.
(7) The manner in which the object is displayed for sale.
(8) Whether the owner, or anyone in control of the object, is a
legitimate supplier of like or related items to the community, such
as a licensed distributor or dealer of tobacco products.
(9) The existence and scope of legitimate uses for the object in
the community.
(10) Expert testimony concerning its use.
(f) This section shall not apply to any of the following:
(1) Any pharmacist or other authorized person who sells or
furnishes drug paraphernalia described in paragraph (11) of
subdivision (d) upon the prescription of a physician, dentist,
podiatrist or veterinarian.
(2) Any physician, dentist, podiatrist or veterinarian who
furnishes or prescribes drug paraphernalia described in paragraph
(11) of subdivision (d) to his or her patients.
(3) Any manufacturer, wholesaler or retailer licensed by the
California State Board of Pharmacy to sell or transfer drug
paraphernalia described in paragraph (11) of subdivision (d).
(g) Notwithstanding any other provision of law, including Section
11374, violation of this section shall not constitute a criminal
offense, but operation of a business in violation of the provisions
of this section shall be grounds for revocation or nonrenewal of any
license, permit, or other entitlement previously issued by a city,
county, or city and county for the privilege of engaging in such
business and shall be grounds for denial of any future license,
permit, or other entitlement authorizing the conduct of such business
or any other business, if the business includes the sale of drug
paraphernalia.
11364.7. (a) Except as authorized by law, any person who delivers,
furnishes, or transfers, possesses with intent to deliver, furnish,
or transfer, or manufactures with the intent to deliver, furnish, or
transfer, drug paraphernalia, knowing, or under circumstances where
one reasonably should know, that it will be used to plant, propagate,
cultivate, grow, harvest, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain, conceal,
inject, ingest, inhale, or otherwise introduce into the human body a
controlled substance, except as provided in subdivision (b), in
violation of this division, is guilty of a misdemeanor.
No public entity, its agents, or employees shall be subject to
criminal prosecution for distribution of hypodermic needles or
syringes to participants in clean needle and syringe exchange
projects authorized by the public entity pursuant to Chapter 18
(commencing with Section 121349) of Part 4 of Division 105.
(b) Except as authorized by law, any person who manufactures with
intent to deliver, furnish, or transfer drug paraphernalia knowing,
or under circumstances where one reasonably should know, that it will
be used to plant, propagate, cultivate, grow, harvest, manufacture,
compound, convert, produce, process, prepare, test, analyze, pack,
repack, store, contain, conceal, inject, ingest, inhale, or otherwise
introduce into the human body cocaine, cocaine base, heroin,
phencyclidine, or methamphetamine in violation of this division shall
be punished by imprisonment in a county jail for not more than one
year, or in the state prison.
(c) Except as authorized by law, any person, 18 years of age or
over, who violates subdivision (a) by delivering, furnishing, or
transferring drug paraphernalia to a person under 18 years of age who
is at least three years his or her junior, or who, upon the grounds
of a public or private elementary, vocational, junior high, or high
school, possesses a hypodermic needle, as defined in paragraph (7) of
subdivision (a) of Section 11014.5, with the intent to deliver,
furnish, or transfer the hypodermic needle, knowing, or under
circumstances where one reasonably should know, that it will be used
by a person under 18 years of age to inject into the human body a
controlled substance, is guilty of a misdemeanor and shall be
punished by imprisonment in a county jail for not more than one year,
by a fine of not more than one thousand dollars ($1,000), or by both
that imprisonment and fine.
(d) The violation, or the causing or the permitting of a
violation, of subdivision (a), (b), or (c) by a holder of a business
or liquor license issued by a city, county, or city and county, or by
the State of California, and in the course of the licensee's
business shall be grounds for the revocation of that license.
(e) All drug paraphernalia defined in Section 11014.5 is subject
to forfeiture and may be seized by any peace officer pursuant to
Section 11471.
(f) If any provision of this section or the application thereof to
any person or circumstance is held invalid, it is the intent of the
Legislature that the invalidity shall not affect other provisions or
applications of this section which can be given effect without the
invalid provision or application and to this end the provisions of
this section are severable.
11365. (a) It is unlawful to visit or to be in any room or place
where any controlled substances which are specified in subdivision
(b), (c), or (e), or paragraph (1) of subdivision (f) of Section
11054, specified in paragraph (14), (15), or (20) of subdivision (d)
of Section 11054, or specified in subdivision (b) or (c) or paragraph
(2) of subdivision (d) of Section 11055, or which are narcotic drugs
classified in Schedule III, IV, or V, are being unlawfully smoked or
used with knowledge that such activity is occurring.
(b) This section shall apply only where the defendant aids,
assists, or abets the perpetration of the unlawful smoking or use of
a controlled substance specified in subdivision (a). This subdivision
is declaratory of existing law as expressed in People v. Cressey
(1970) 2 Cal. 3d 836.
11366. Every person who opens or maintains any place for the
purpose of unlawfully selling, giving away, or using any controlled
substance which is (1) specified in subdivision (b), (c), or (e), or
paragraph (1) of subdivision (f) of Section 11054, specified in
paragraph (13), (14), (15), or (20) of subdivision (d) of Section
11054, or specified in subdivision (b), (c), paragraph (1) or (2) of
subdivision (d), or paragraph (3) of subdivision (e) of Section
11055, or (2) which is a narcotic drug classified in Schedule III,
IV, or V, shall be punished by imprisonment in the county jail for a
period of not more than one year or the state prison.
11366.5. (a) Any person who has under his or her management or
control any building, room, space, or enclosure, either as an owner,
lessee, agent, employee, or mortgagee, who knowingly rents, leases,
or makes available for use, with or without compensation, the
building, room, space, or enclosure for the purpose of unlawfully
manufacturing, storing, or distributing any controlled substance for
sale or distribution shall be punished by imprisonment in the county
jail for not more than one year, or in the state prison.
(b) Any person who has under his or her management or control any
building, room, space, or enclosure, either as an owner, lessee,
agent, employee, or mortgagee, who knowingly allows the building,
room, space, or enclosure to be fortified to suppress law enforcement
entry in order to further the sale of any amount of cocaine base as
specified in paragraph (1) of subdivision (f) of Section 11054,
cocaine as specified in paragraph (6) of subdivision (b) of Section
11055, heroin, phencyclidine, amphetamine, methamphetamine, or
lysergic acid diethylamide and who obtains excessive profits from the
use of the building, room, space, or enclosure shall be punished by
imprisonment in the state prison for two, three, or four years.
(c) Any person who violates subdivision (a) after previously being
convicted of a violation of subdivision (a) shall be punished by
imprisonment in the state prison for two, three, or four years.
(d) For the purposes of this section, "excessive profits" means
the receipt of consideration of a value substantially higher than
fair market value.
11366.6. Any person who utilizes a building, room, space, or
enclosure specifically designed to suppress law enforcement entry in
order to sell, manufacture, or possess for sale any amount of cocaine
base as specified in paragraph (1) of subdivision (f) of Section
11054, cocaine as specified in paragraph (6) of subdivision (b) of
Section 11055, heroin, phencyclidine, amphetamine, methamphetamine,
or lysergic acid diethylamide shall be punished by imprisonment in
the state prison for three, four, or five years.
11366.7. (a) This section shall apply to the following:
(1) Any chemical or drug.
(2) Any laboratory apparatus or device.
(b) Any retailer or wholesaler who sells any item in paragraph (1)
or (2) of subdivision (a) with knowledge or the intent that it will
be used to unlawfully manufacture, compound, convert, process, or
prepare a controlled substance for unlawful sale or distribution,
shall be punished by imprisonment in a county jail for not more than
one year, or in the state prison, or by a fine not exceeding
twenty-five thousand dollars ($25,000), or by both that imprisonment
and fine. Any fine collected pursuant to this section shall be
distributed as specified in Section 1463.10 of the Penal Code.
11366.8. (a) Every person who possesses, uses, or controls a false
compartment with the intent to store, conceal, smuggle, or transport
a controlled substance within the false compartment shall be punished
by imprisonment in a county jail for a term of imprisonment not to
exceed one year or in the state prison.
(b) Every person who designs, constructs, builds, alters, or
fabricates a false compartment for, or installs or attaches a false
compartment to, a vehicle with the intent to store, conceal, smuggle,
or transport a controlled substance shall be punished by
imprisonment in the state prison for 16 months or two or three years.
(c) The term "vehicle" means any of the following vehicles without
regard to whether the vehicles are private or commercial, including,
but not limited to, cars, trucks, buses, aircraft, boats, ships,
yachts, and vessels.
(d) The term "false compartment" means any box, container, space,
or enclosure that is intended for use or designed for use to conceal,
hide, or otherwise prevent discovery of any controlled substance
within or attached to a vehicle, including, but not limited to, any
of the following:
(1) False, altered, or modified fuel tanks.
(2) Original factory equipment of a vehicle that is modified,
altered, or changed.
(3) Compartment, space, or box that is added to, or fabricated,
made, or created from, existing compartments, spaces, or boxes within
a vehicle.
11367. All duly authorized peace officers, while investigating
violations of this division in performance of their official duties,
and any person working under their immediate direction, supervision
or instruction, are immune from prosecution under this division.
11367.5. (a) Any sheriff, chief of police, the Chief of the Bureau
of Narcotic Enforcement, or the Commissioner of the California
Highway Patrol, or a designee thereof, may, in his or her discretion,
provide controlled substances in his or her possession and control
to any duly authorized peace officer or civilian drug detection
canine trainer working under the direction of a law enforcement
agency, provided the controlled substances are no longer needed as
criminal evidence and provided the person receiving the controlled
substances, if required by the Drug Enforcement Administration,
possesses a current and valid Drug Enforcement Administration
registration which specifically authorizes the recipient to possess
controlled substances while providing substance abuse training to law
enforcement or the community or while providing canine drug
detection training.
(b) All duly authorized peace officers, while providing substance
abuse training to law enforcement or the community or while providing
canine drug detection training, in performance of their official
duties, and any person working under their immediate direction,
supervision, or instruction, are immune from prosecution under this
division.
(c) (1) Any person receiving controlled substances pursuant to
subdivision (a) shall maintain custody and control of the controlled
substances and shall keep records regarding any loss of, or damage
to, those controlled substances.
(2) All controlled substances shall be maintained in a secure
location approved by the dispensing agency.
(3) Any loss shall be reported immediately to the dispensing
agency.
(4) All controlled substances shall be returned to the dispensing
agency upon the conclusion of the training or upon demand by the
dispensing agency.
11368. Every person who forges or alters a prescription or who
issues or utters an altered prescription, or who issues or utters a
prescription bearing a forged or fictitious signature for any
narcotic drug, or who obtains any narcotic drug by any forged,
fictitious, or altered prescription, or who has in possession any
narcotic drug secured by a forged, fictitious, or altered
prescription, shall be punished by imprisonment in the county jail
for not less than six months nor more than one year, or in the state
prison.
11369. When there is reason to believe that any person arrested for
a violation of Section 11350, 11351, 11351.5, 11352, 11353, 11355,
11357, 11359, 11360, 11361, 11363, 11366, 11368 or 11550, may not be
a citizen of the United States, the arresting agency shall notify the
appropriate agency of the United States having charge of deportation
matters.
11370. (a) Any person convicted of violating Section 11350, 11351,
11351.5, 11352, 11353, 11355, 11357, 11359, 11360, 11361, 11363,
11366, or 11368, or of committing any offense referred to in those
sections, shall not, in any case, be granted probation by the trial
court or have the execution of the sentence imposed upon him or her
suspended by the court, if he or she has been previously convicted of
any offense described in subdivision (c).
(b) Any person who was 18 years of age or over at the time of the
commission of the offense and is convicted for the first time of
selling, furnishing, administering, or giving a controlled substance
which is (1) specified in subdivision (b), (c), (e), or paragraph (1)
of subdivision (f) of Section 11054, specified in paragraph (14),
(15), or (20) of subdivision (d) of Section 11054, or specified in
subdivision (b) or (c) of Section 11055, or (2) which is a narcotic
drug classified in Schedule III, IV, or V, to a minor or inducing a
minor to use such a controlled substance in violation of law shall
not, in any case, be granted probation by the trial court or have the
execution of the sentence imposed upon him or her suspended by the
court.
(c) Any previous conviction of any of the following offenses, or
of an offense under the laws of another state or of the United States
which, if committed in this state, would have been punishable as
such an offense, shall render a person ineligible for probation or
suspension of sentence pursuant to subdivision (a) of this section:
(1) Any felony offense described in this division involving a
controlled substance specified in subdivision (b), (c), (e), or
paragraph (1) of subdivision (f) of Section 11054, specified in
paragraph (13), (14), (15), or (20) of subdivision (d) of Section
11054, or specified in subdivision (b) or (c) of Section 11055.
(2) Any felony offense described in this division involving a
narcotic drug classified in Schedule III, IV, or V.
(d) The existence of any previous conviction or fact which would
make a person ineligible for suspension of sentence or probation
under this section shall be alleged in the information or indictment,
and either admitted by the defendant in open court, or found to be
true by the jury trying the issue of guilt or by the court where
guilt is established by a plea of guilty or nolo contendere or by
trial by the court sitting without a jury.
11370.1. (a) Notwithstanding Section 11350 or 11377 or any other
provision of law, every person who unlawfully possesses any amount of
a substance containing cocaine base, a substance containing cocaine,
a substance containing heroin, a substance containing
methamphetamine, a crystalline substance containing phencyclidine, a
liquid substance containing phencyclidine, plant material containing
phencyclidine, or a hand-rolled cigarette treated with phencyclidine
while armed with a loaded, operable firearm is guilty of a felony
punishable by imprisonment in the state prison for two, three, or
four years.
As used in this subdivision, "armed with" means having available
for immediate offensive or defensive use.
(b) Any person who is convicted under this section shall be
ineligible for diversion or deferred entry of judgment under Chapter
2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal
Code.
11370.2. (a) Any person convicted of a violation of, or of a
conspiracy to violate, Section 11351, 11351.5, or 11352 shall
receive, in addition to any other punishment authorized by law,
including Section 667.5 of the Penal Code, a full, separate, and
consecutive three-year term for each prior felony conviction of, or
for each prior felony conviction of conspiracy to violate, Section
11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6,
11380, 11380.5, or 11383, whether or not the prior conviction
resulted in a term of imprisonment.
(b) Any person convicted of a violation of, or of a conspiracy to
violate, Section 11378.5, 11379.5, 11379.6, 11380.5, or 11383 shall
receive, in addition to any other punishment authorized by law,
including Section 667.5 of the Penal Code, a full, separate, and
consecutive three-year term for each prior felony conviction of, or
for each prior felony conviction of conspiracy to violate, Section
11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6,
11380, 11380.5, or 11383, whether or not the prior conviction
resulted in a term of imprisonment.
(c) Any person convicted of a violation of, or of a conspiracy to
violate, Section 11378 or 11379 with respect to any substance
containing a controlled substance specified in paragraph (1) or (2)
of subdivision (d) of Section 11055 shall receive, in addition to any
other punishment authorized by law, including Section 667.5 of the
Penal Code, a full, separate, and consecutive three-year term for
each prior felony conviction of, or for each prior felony conviction
of conspiracy to violate, Section 11351, 11351.5, 11352, 11378,
11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether
or not the prior conviction resulted in a term of imprisonment.
(d) The enhancements provided for in this section shall be pleaded
and proven as provided by law.
(e) The conspiracy enhancements provided for in this section shall
not be imposed unless the trier of fact finds that the defendant
conspirator was substantially involved in the planning, direction,
execution, or financing of the underlying offense.
(f) Prior convictions from another jurisdiction qualify for use
under this section pursuant to Section 668.
11370.4. (a) Any person convicted of a violation of, or of a
conspiracy to violate, Section 11351, 11351.5, or 11352 with respect
to a substance containing heroin, cocaine base as specified in
paragraph (1) of subdivision (f) of Section 11054, or cocaine as
specified in paragraph (6) of subdivision (b) of Section 11055 shall
receive an additional term as follows:
(1) Where the substance exceeds one kilogram by weight, the person
shall receive an additional term of three years.
(2) Where the substance exceeds four kilograms by weight, the
person shall receive an additional term of five years.
(3) Where the substance exceeds 10 kilograms by weight, the person
shall receive an additional term of 10 years.
(4) Where the substance exceeds 20 kilograms by weight, the person
shall receive an additional term of 15 years.
(5) Where the substance exceeds 40 kilograms by weight, the person
shall receive an additional term of 20 years.
(6) Where the substance exceeds 80 kilograms by weight, the person
shall receive an additional term of 25 years.
The conspiracy enhancements provided for in this subdivision shall
not be imposed unless the trier of fact finds that the defendant
conspirator was substantially involved in the planning, direction,
execution, or financing of the underlying offense.
(b) Any person convicted of a violation of, or of conspiracy to
violate, Section 11378, 11378.5, 11379, or 11379.5 with respect to a
substance containing methamphetamine, amphetamine, phencyclidine
(PCP) and its analogs shall receive an additional term as follows:
(1) Where the substance exceeds one kilogram by weight, or 30
liters by liquid volume, the person shall receive an additional term
of three years.
(2) Where the substance exceeds four kilograms by weight, or 100
liters by liquid volume, the person shall receive an additional term
of five years.
(3) Where the substance exceeds 10 kilograms by weight, or 200
liters by liquid volume, the person shall receive an additional term
of 10 years.
(4) Where the substance exceeds 20 kilograms by weight, or 400
liters by liquid volume, the person shall receive an additional term
of 15 years.
In computing the quantities involved in this subdivision, plant or
vegetable material seized shall not be included.
The conspiracy enhancements provided for in this subdivision shall
not be imposed unless the trier of fact finds that the defendant
conspirator was substantially involved in the planning, direction,
execution, or financing of the underlying offense.
(c) The additional terms provided in this section shall not be
imposed unless the allegation that the weight of the substance
containing heroin, cocaine base as specified in paragraph (1) of
subdivision (f) of Section 11054, cocaine as specified in paragraph
(6) of subdivision (b) of Section 11055, methamphetamine,
amphetamine, or phencyclidine (PCP) and its analogs exceeds the
amounts provided in this section is charged in the accusatory
pleading and admitted or found to be true by the trier of fact.
(d) The additional terms provided in this section shall be in
addition to any other punishment provided by law.
(e) Notwithstanding any other provision of law, the court may
strike the additional punishment for the enhancements provided in
this section if it determines that there are circumstances in
mitigation of the additional punishment and states on the record its
reasons for striking the additional punishment.
11370.6. (a) Every person who possesses any moneys or negotiable
instruments in excess of one hundred thousand dollars ($100,000)
which have been obtained as the result of the unlawful sale,
possession for sale, transportation, manufacture, offer for sale, or
offer to manufacture any controlled substance listed in Section
11054, 11055, 11056, 11057, or 11058, with knowledge that the moneys
or negotiable instruments have been so obtained, and any person who
possesses any moneys or negotiable instruments in excess of one
hundred thousand dollars ($100,000) which are intended by that person
for the unlawful purchase of any controlled substance listed in
Section 11054, 11055, 11056, 11057, or 11058 and who commits an act
in substantial furtherance of the unlawful purchase, shall be
punished by imprisonment in the county jail for a term not to exceed
one year, or by imprisonment in the state prison for two, three, or
four years.
(b) In consideration of the constitutional right to counsel
afforded by the Sixth Amendment to the United States Constitution and
Section 15 of Article 1 of the California Constitution, when a case
charged under subdivision (a) involves an attorney who accepts a fee
for representing a client in a criminal investigation or proceeding,
the prosecution shall additionally be required to prove that the
moneys or negotiable instruments were accepted by the attorney with
the intent to participate in the unlawful conduct described in
subdivision (a) or to disguise or aid in disguising the source of the
funds or the nature of the criminal activity.
(c) In determining the guilt or innocence of a person charged
under subdivision (a), the trier of fact may consider the following
in addition to any other relevant evidence:
(1) The lack of gainful employment by the person charged.
(2) The expert opinion of a qualified controlled substances expert
as to the source of the assets.
(3) The existence of documents or ledgers that indicate sales of
controlled substances.
11370.9. (a) It is unlawful for any person knowingly to receive or
acquire proceeds, or engage in a transaction involving proceeds,
known to be derived from any violation of this division or Division
10.1 with the intent to conceal or disguise or aid in concealing or
disguising the nature, location, ownership, control, or source of the
proceeds or to avoid a transaction reporting requirement under state
or federal law.
(b) It is unlawful for any person knowingly to give, sell,
transfer, trade, invest, conceal, transport, or maintain an interest
in, or otherwise make available, anything of value which that person
knows is intended to be used for the purpose of committing, or
furthering the commission of, any violation of this division or
Division 10.1 with the intent to conceal or disguise or aid in
concealing or disguising the nature, location, ownership, control, or
source of the proceeds or to avoid a transaction reporting
requirement under state or federal law.
(c) It is unlawful for any person knowingly to direct, plan,
organize, initiate, finance, manage, supervise, or facilitate the
transportation or transfer of proceeds known to be derived from any
violation of this division or Division 10.1 with the intent to
conceal or disguise or aid in concealing or disguising the nature,
location, ownership, control, or source of the proceeds or to avoid a
transaction reporting requirement under state or federal law.
(d) It is unlawful for any person knowingly to conduct a
transaction involving proceeds derived from a violation of this
division or Division 10.1 when the transaction is designed in whole
or in part to conceal or disguise the nature, location, source,
ownership, or control of the proceeds known to be derived from a
violation of this division or Division 10.1 with the intent to
conceal or disguise or aid in concealing or disguising the nature,
location, ownership, control, or source of the proceeds or to avoid a
transaction reporting requirement under state or federal law.
(e) A violation of this section shall be punished by imprisonment
in a county jail for not more than one year or in the state prison
for a period of two, three, or four years, by a fine of not more than
two hundred fifty thousand dollars ($250,000) or twice the value of
the proceeds or property involved in the violation, whichever is
greater, or by both that imprisonment and fine. Notwithstanding any
other provision of law, each violation of this section shall
constitute a separate, punishable offense without limitation.
(f) This section shall apply only to a transaction, or series of
related transactions within a 30-day period, involving over
twenty-five thousand dollars ($25,000) or to proceeds of a value
exceeding twenty-five thousand dollars ($25,000).
(g) In consideration of the constitutional right to counsel
afforded by the Sixth Amendment to the United States Constitution and
Section 15 of Article 1 of the California Constitution, this section
is not intended to apply to the receipt of, or a related transaction
involving, a fee by an attorney for the purpose of providing advice
or representing a person in a criminal investigation or prosecution.
(h) For the purposes of this section, the following terms have the
following meanings:
(1) "Proceeds" means property acquired or derived directly or
indirectly from, produced through, or realized through any violation
of this division or Division 10.1.
(2) "Transaction" includes a purchase, sale, trade, loan, pledge,
investment, gift, transfer, transmission, delivery, deposit,
withdrawal, payment, electronic, magnetic, or manual transfer between
accounts, exchange of currency, extension of credit, purchase or
sale of any monetary instrument, or any other acquisition or
disposition of property by whatever means effected.
(3) "Represented by a law enforcement officer" means any
representation of fact made by a peace officer as defined in Section
7 of the Penal Code, or a federal officer described in subsection (e)
of Sections 1956 and 1957 of Title 18 of the United States Code, or
by another person at the direction of, or with the approval of, that
peace officer or federal officer.
11371. Any person who shall knowingly violate any of the provisions
of Section 11153, 11154, 11155, or 11156 with respect to (1) a
controlled substance specified in subdivision (b), (c), or (d) of
Section 11055, or (2) a controlled substance specified in paragraph
(1) of subdivision (b) of Section 11056, or (3) a controlled
substance which is a narcotic drug classified in Schedule III, IV, or
V, or who in any voluntary manner solicits, induces, encourages or
intimidates any minor with the intent that such minor shall commit
any such offense, shall be punished by imprisonment in the state
prison or in a county jail not exceeding one year, or by a fine not
exceeding twenty thousand dollars ($20,000), or by both such fine and
imprisonment.
11371.1. Any person who shall knowingly violate any of the
provisions of Section 11173 or 11174 with respect to (1) a controlled
substance specified in subdivision (b), (c), or (d) of Section
11055, or (2) a controlled substance specified in paragraph (1) of
subdivision (b) of Section 11056, or (3) a controlled substance which
is a narcotic drug classified in Schedule III, IV, or V, or who in
any voluntary manner solicits, induces, encourages or intimidates any
minor with the intent that such minor shall commit any such offense,
shall be punished by imprisonment in the state prison, or in a
county jail not exceeding one year.
11372. (a) In addition to the term of imprisonment provided by law
for persons convicted of violating Section 11350, 11351, 11351.5,
11352, 11353, 11355, 11359, 11360, or 11361, the trial court may
impose a fine not exceeding twenty thousand dollars ($20,000) for
each offense. In no event shall a fine be levied in lieu of or in
substitution for the term of imprisonment provided by law for any of
these offenses.
(b) Any person receiving an additional term pursuant to paragraph
(1) of subdivision (a) of Section 11370.4, may, in addition, be fined
by an amount not exceeding one million dollars ($1,000,000) for each
offense.
(c) Any person receiving an additional term pursuant to paragraph
(2) of subdivision (a) of Section 11370.4, may, in addition, be fined
by an amount not to exceed four million dollars ($4,000,000) for
each offense.
(d) Any person receiving an additional term pursuant to paragraph
(3) of subdivision (a) of Section 11370.4, may, in addition, be fined
by an amount not to exceed eight million dollars ($8,000,000) for
each offense.
(e) The court shall make a finding, prior to the imposition of the
fines authorized by subdivisions (b) to (e), inclusive, that there
is a reasonable expectation that the fine, or a substantial portion
thereof, could be collected within a reasonable period of time,
taking into consideration the defendant's income, earning capacity,
and financial resources.
11372.5. (a) Every person who is convicted of a violation of
Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361,
11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5,
11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or
subdivision (a) or (c) of Section 11357, or subdivision (a) of
Section 11360 of this code, or Section 4230 of the Business and
Professions Code shall pay a criminal laboratory analysis fee in the
amount of fifty dollars ($50) for each separate offense. The court
shall increase the total fine necessary to include this increment.
With respect to those offenses specified in this subdivision for
which a fine is not authorized by other provisions of law, the court
shall, upon conviction, impose a fine in an amount not to exceed
fifty dollars ($50), which shall constitute the increment prescribed
by this section and which shall be in addition to any other penalty
prescribed by law.
(b) The county treasurer shall maintain a criminalistics
laboratories fund. The sum of fifty dollars ($50) shall be deposited
into the fund for every conviction under Section 11350, 11351,
11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368,
11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380,
11380.5, 11382, 11383, 11390, 11391, or 11550, subdivision (a) or (c)
of Section 11357, or subdivision (a) of Section 11360 of this code,
or Section 4230 of the Business and Professions Code, in addition to
fines, forfeitures, and other moneys which are transmitted by the
courts to the county treasurer pursuant to Section 11502. The
deposits shall be made prior to any transfer pursuant to Section
11502. The county may retain an amount of this money equal to its
administrative cost incurred pursuant to this section. Moneys in the
criminalistics laboratories fund shall, except as otherwise provided
in this section, be used exclusively to fund (1) costs incurred by
criminalistics laboratories providing microscopic and chemical
analyses for controlled substances, in connection with criminal
investigations conducted within both the incorporated or
unincorporated portions of the county, (2) the purchase and
maintenance of equipment for use by these laboratories in performing
the analyses, and (3) for continuing education, training, and
scientific development of forensic scientists regularly employed by
these laboratories. Moneys in the criminalistics laboratory fund
shall be in addition to any allocations pursuant to existing law. As
used in this section, "criminalistics laboratory" means a laboratory
operated by, or under contract with, a city, county, or other public
agency, including a criminalistics laboratory of the Department of
Justice, (1) which has not less than one regularly employed forensic
scientist engaged in the analysis of solid-dose controlled
substances, and (2) which is registered as an analytical laboratory
with the Drug Enforcement Administration of the United States
Department of Justice for the possession of all scheduled controlled
substances. In counties served by criminalistics laboratories of the
Department of Justice, amounts deposited in the criminalistics
laboratories fund, after deduction of appropriate and reasonable
county overhead charges not to exceed 5 percent attributable to the
collection thereof, shall be paid by the county treasurer once a
month to the Controller for deposit into the state General Fund, and
shall be excepted from the expenditure requirements otherwise
prescribed by this subdivision.
(c) The county treasurer shall, at the conclusion of each fiscal
year, determine the amount of any funds remaining in the special fund
established pursuant to this section after expenditures for that
fiscal year have been made for the purposes herein specified. The
board of supervisors may, by resolution, assign the treasurer's duty
to determine the amount of remaining funds to the auditor or another
county officer. The county treasurer shall annually distribute those
surplus funds in accordance with the allocation scheme for
distribution of fines and forfeitures set forth in Section 11502.
11372.7. (a) Except as otherwise provided in subdivision (b) or
(e), each person who is convicted of a violation of this chapter
shall pay a drug program fee in an amount not to exceed one hundred
fifty dollars ($150) for each separate offense. The court shall
increase the total fine, if necessary, to include this increment,
which shall be in addition to any other penalty prescribed by law.
(b) The court shall determine whether or not the person who is
convicted of a violation of this chapter has the ability to pay a
drug program fee. If the court determines that the person has the
ability to pay, the court may set the amount to be paid and order the
person to pay that sum to the county in a manner that the court
believes is reasonable and compatible with the person's financial
ability. In its determination of whether a person has the ability to
pay, the court shall take into account the amount of any fine imposed
upon that person and any amount that person has been ordered to pay
in restitution. If the court determines that the person does not have
the ability to pay a drug program fee, the person shall not be
required to pay a drug program fee.
(c) The county treasurer shall maintain a drug program fund. For
every drug program fee assessed and collected pursuant to
subdivisions (a) and (b), an amount equal to this assessment shall be
deposited into the fund for every conviction pursuant to this
chapter, in addition to fines, forfeitures, and other moneys which
are transmitted by the courts to the county treasurer pursuant to
Sections 11372.5 and 11502. These deposits shall be made prior to any
transfer pursuant to Section 11502. Amounts deposited in the drug
program fund shall be allocated by the administrator of the county's
drug program to drug abuse programs in the schools and the community,
subject to the approval of the board of supervisors, as follows:
(1) The moneys in the fund shall be allocated through the planning
process established pursuant to Sections 11983, 11983.1, 11983.2,
and 11983.3.
(2) A minimum of 33 percent of the fund shall be allocated to
primary prevention programs in the schools and the community. Primary
prevention programs developed and implemented under this article
shall emphasize cooperation in planning and program implementation
among schools and community drug abuse agencies, and shall
demonstrate coordination through an interagency agreement among
county offices of education, school districts, and the county drug
program administrator. These primary prevention programs may include:
(A) School- and classroom-oriented programs, including, but not
limited to, programs designed to encourage sound decisionmaking, an
awareness of values, an awareness of drugs and their effects,
enhanced self-esteem, social and practical skills that will assist
students toward maturity, enhanced or improved school climate and
relationships among all school personnel and students, and
furtherance of cooperative efforts of school- and community-based
personnel.
(B) School- or community-based nonclassroom alternative programs,
or both, including, but not limited to, positive peer group programs,
programs involving youth and adults in constructive activities
designed as alternatives to drug use, and programs for special target
groups, such as women, ethnic minorities, and other high-risk,
high-need populations.
(C) Family-oriented programs, including, but not limited to,
programs aimed at improving family relationships and involving
parents constructively in the education and nurturing of their
children, as well as in specific activities aimed at preventing drug
abuse.
(d) Moneys deposited into a county drug program fund pursuant to
this section shall supplement, and shall not supplant, any local
funds made available to support the county's drug abuse prevention
and treatment efforts.
(e) This section shall not apply to any person convicted of a
violation of subdivision (b) of Section 11357 of the Health and
Safety Code.
11373. (a) Whenever any person who is otherwise eligible for
probation is granted probation by the trial court after conviction
for a violation of any controlled substance offense under this
division, the trial court shall, as a condition of probation, order
that person to secure education or treatment from a local community
agency designated by the court, if the service is available and the
person is likely to benefit from the service.
If the defendant is a minor, the trial court shall also order his
or her parents or guardian to participate in the education or
treatment to the extent the court determines that participation will
aid the education or treatment of the minor.
If a minor is found by a juvenile court to have been in possession
of any controlled substance, in addition to any other order it may
make, the juvenile court shall order the minor to receive education
or treatment from a local community agency designated by the court,
if the service is available and the person is likely to benefit from
the service, and it shall also order his or her parents or guardian
to participate in the education or treatment to the extent the court
determines that participation will aid the education or treatment of
the minor.
(b) The willful failure to complete a court ordered education or
treatment program shall be a circumstance in aggravation for purposes
of sentencing for any subsequent prosecution for a violation of
Section 11353, 11354, or 11380. The failure to complete an education
or treatment program because of the person's inability to pay the
costs of the program or because of the unavailability to the
defendant of appropriate programs is not a willful failure to
complete the program.
11374. Every person who violates or fails to comply with any
provision of this division, except one for which a penalty is
otherwise in this division specifically provided, is guilty of a
misdemeanor punishable by a fine in a sum not less than thirty
dollars ($30) nor more than five hundred dollars ($500), or by
imprisonment for not less than 15 nor more than 180 days, or by both.
11374.5. (a) Any manufacturer of a controlled substance who
disposes of any hazardous substance that is a controlled substance or
a chemical used in, or is a byproduct of, the manufacture of a
controlled substance in violation of any law regulating the disposal
of hazardous substances or hazardous waste is guilty of a public
offense punishable by imprisonment in the state prison for two,
three, or four years or in the county jail not exceeding one year.
(b) (1) In addition to any other penalty or liability imposed by
law, a person who is convicted of violating subdivision (a), or any
person who is convicted of the manufacture, sale, possession for
sale, possession, transportation, or disposal of any hazardous
substance that is a controlled substance or a chemical used in, or is
a byproduct of, the manufacture of a controlled substance in
violation of any law, shall pay a penalty equal to the amount of the
actual cost incurred by the state or local agency to remove and
dispose of the hazardous substance that is a controlled substance or
a chemical used in, or is a byproduct of, the manufacture of a
controlled substance and to take removal action with respect to any
release of the hazardous substance or any items or materials
contaminated by that release, if the state or local agency requests
the prosecuting authority to seek recovery of that cost. The court
shall transmit all penalties collected pursuant to this subdivision
to the county treasurer of the county in which the court is located
for deposit in a special account in the county treasury. The county
treasurer shall pay that money at least once a month to the agency
that requested recovery of the cost for the removal action. The
county may retain up to 5 percent of any assessed penalty for
appropriate and reasonable administrative costs attributable to the
collection and disbursement of the penalty.
(2) If the Department of Toxic Substances Control has requested
recovery of the cost of removing the hazardous substance that is a
controlled substance or a chemical used in, or is a byproduct of, the
manufacture of a controlled substance or taking removal action with
respect to any release of the hazardous substance, the county
treasurer shall transfer funds in the amount of the penalty collected
to the Treasurer, who shall deposit the money in the Illegal Drug
Lab Cleanup Account, which is hereby created in the General Fund in
the State Treasury. The Department of Toxic Substances Control may
expend the money in the Illegal Drug Lab Cleanup Account, upon
appropriation by the Legislature, to cover the cost of taking removal
actions pursuant to Section 25354.5.
(3) If a local agency and the Department of Toxic Substances
Control have both requested recovery of removal costs with respect to
a hazardous substance that is a controlled substance or a chemical
used in, or is a byproduct of, the manufacture of a controlled
substance, the county treasurer shall apportion any penalty collected
among the agencies involved in proportion to the costs incurred.
(c) As used in this section the following terms have the following
meaning:
(1) "Dispose" means to abandon, deposit, intern, or otherwise
discard as a final action after use has been achieved or a use is no
longer intended.
(2) "Hazardous substance" has the same meaning as defined in
Section 25316.
(3) "Hazardous waste" has the same meaning as defined in Section
25117.
(4) For purposes of this section, "remove" or "removal" has the
same meaning as set forth in Section 25323.
11375. (a) As to the substances specified in subdivision (c), this
section, and not Sections 11377, 11378, 11379, and 11380, shall
apply.
(b) (1) Every person who possesses for sale, or who sells, any
substance specified in subdivision (c) shall be punished by
imprisonment in the county jail for a period of not more than one
year or state prison.
(2) Every person who possesses any controlled substance specified
in subdivision (c), unless upon the prescription of a physician,
dentist, podiatrist, or veterinarian, licensed to practice in this
state, shall be guilty of an infraction or a misdemeanor.
(c) This section shall apply to any material, compound, mixture,
or preparation containing any of the following substances:
(1) Chlordiazepoxide.
(2) Clonazepam.
(3) Clorazepate.
(4) Diazepam.
(5) Flurazepam.
(6) Lorazepam.
(7) Mebutamate.
(8) Oxazepam.
(9) Prazepam.
(10) Temazepam.
(11) Halazepam.
(12) Alprazolam.
(13) Propoxyphene.
(14) Diethylpropion.
(15) Phentermine.
(16) Pemoline.
(17) Fenfluramine.
(18) Triazolam.
11375. (a) As to the substances specified in subdivision (c), this
section, and not Sections 11377, 11378, 11379, and 11380, shall
apply.
(b) (1) Every person who possesses for sale, or who sells, any
substance specified in subdivision (c) shall be punished by
imprisonment in the county jail for a period of not more than one
year or state prison.
(2) Every person who possesses any controlled substance specified
in subdivision (c), unless upon the prescription of a physician,
dentist, podiatrist, or veterinarian, licensed to practice in this
state, shall be guilty of an infraction or a misdemeanor.
(c) This section shall apply to any material, compound, mixture,
or preparation containing any of the following substances:
(1) Chlordiazepoxide.
(2) Clonazepam.
(3) Clorazepate.
(4) Diazepam.
(5) Flurazepam.
(6) Lorazepam.
(7) Mebutamate.
(8) Oxazepam.
(9) Prazepam.
(10) Temazepam.
(11) Halazepam.
(12) Alprazolam.
(13) Propoxyphene.
(14) Diethylpropion.
(15) Phentermine.
(16) Pemoline.
(17) Triazolam.
11376. Upon the diversion or conviction of a person for any offense
involving substance abuse, the court may require, in addition to any
or all other terms of diversion or imprisonment, fine, or other
reasonable conditions of sentencing or probation imposed by the
court, that the defendant participate in and complete counseling or
education programs, or both, including, but not limited to, parent
education or parenting programs operated by community colleges,
school districts, other public agencies, or private agencies.
11364. (a) It is unlawful to possess an opium pipe or any device,
contrivance, instrument, or paraphernalia used for unlawfully
injecting or smoking (1) a controlled substance specified in
subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of
Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, specified in subdivision (b) or (c)
of Section 11055, or specified in paragraph (2) of subdivision (d)
of Section 11055, or (2) a controlled substance which is a narcotic
drug classified in Schedule III, IV, or V.
(b) This section shall not apply to hypodermic needles or syringes
that have been containerized for safe disposal in a container that
meets state and federal standards for disposal of sharps waste.
(c) Pursuant to authorization by a county, with respect to all of
the territory within the county, or a city, with respect to the
territory within in the city, for the period commencing January 1,
2005, and ending December 31, 2018, subdivision (a) shall not apply
to the possession solely for personal use of 10 or fewer hypodermic
needles or syringes if acquired from an authorized source.
11364.5. (a) Except as authorized by law, no person shall maintain
or operate any place of business in which drug paraphernalia is kept,
displayed or offered in any manner, sold, furnished, transferred or
given away unless such drug paraphernalia is completely and wholly
kept, displayed or offered within a separate room or enclosure to
which persons under the age of 18 years not accompanied by a parent
or legal guardian are excluded. Each entrance to such a room or
enclosure shall be signposted in reasonably visible and legible words
to the effect that drug paraphernalia is kept, displayed or offered
in such room or enclosure and that minors, unless accompanied by a
parent or legal guardian, are excluded.
(b) Except as authorized by law, no owner, manager, proprietor or
other person in charge of any room or enclosure, within any place of
business, in which drug paraphernalia is kept, displayed or offered
in any manner, sold, furnished, transferred or given away shall
permit or allow any person under the age of 18 years to enter, be in,
remain in or visit such room or enclosure unless such minor person
is accompanied by one of his or her parents or by his or her legal
guardian.
(c) Unless authorized by law, no person under the age of 18 years
shall enter, be in, remain in or visit any room or enclosure in any
place of business in which drug paraphernalia is kept, displayed or
offered in any manner, sold, furnished, transferred or given away
unless accompanied by one of his or her parents or by his or her
legal guardian.
(d) As used in this section, "drug paraphernalia" means all
equipment, products, and materials of any kind which are intended for
use or designed for use, in planting, propagating, cultivating,
growing, harvesting, manufacturing, compounding, converting,
producing, processing, preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing, injecting, ingesting,
inhaling, or otherwise introducing into the human body a controlled
substance. "Drug paraphernalia" includes, but is not limited to, all
of the following:
(1) Kits intended for use or designed for use in planting,
propagating, cultivating, growing or harvesting of any species of
plant which is a controlled substance or from which a controlled
substance can be derived.
(2) Kits intended for use or designed for use in manufacturing,
compounding, converting, producing, processing, or preparing
controlled substances.
(3) Isomerization devices intended for use or designed for use in
increasing the potency of any species of plant which is a controlled
substance.
(4) Testing equipment intended for use or designed for use in
identifying, or in analyzing the strength, effectiveness or purity of
controlled substances.
(5) Scales and balances intended for use or designed for use in
weighing or measuring controlled substances.
(6) Diluents and adulterants, such as quinine hydrochloride,
mannitol, mannite, dextrose, and lactose, intended for use or
designed for use in cutting controlled substances.
(7) Separation gins and sifters intended for use or designed for
use in removing twigs and seeds from, or in otherwise cleaning or
refining, marijuana.
(8) Blenders, bowls, containers, spoons, and mixing devices
intended for use or designed for use in compounding controlled
substances.
(9) Capsules, balloons, envelopes, and other containers intended
for use or designed for use in packaging small quantities of
controlled substances.
(10) Containers and other objects intended for use or designed for
use in storing or concealing controlled substances.
(11) Hypodermic syringes, needles, and other objects intended for
use or designed for use in parenterally injecting controlled
substances into the human body.
(12) Objects intended for use or designed for use in ingesting,
inhaling, or otherwise introducing marijuana, cocaine, hashish, or
hashish oil into the human body, such as the following:
(A) Metal, wooden, acrylic, glass, stone, plastic, or ceramic
pipes with or without screens, permanent screens, hashish heads, or
punctured metal bowls.
(B) Water pipes.
(C) Carburetion tubes and devices.
(D) Smoking and carburetion masks.
(E) Roach clips, meaning objects used to hold burning material,
such as a marijuana cigarette that has become too small or too short
to be held in the hand.
(F) Miniature cocaine spoons, and cocaine vials.
(G) Chamber pipes.
(H) Carburetor pipes.
(I) Electric pipes.
(J) Air-driven pipes.
(K) Chillums.
(L) Bongs.
(M) Ice pipes or chillers.
(e) In determining whether an object is drug paraphernalia, a
court or other authority may consider, in addition to all other
logically relevant factors, the following:
(1) Statements by an owner or by anyone in control of the object
concerning its use.
(2) Prior convictions, if any, of an owner, or of anyone in
control of the object, under any state or federal law relating to any
controlled substance.
(3) Direct or circumstantial evidence of the intent of an owner,
or of anyone in control of the object, to deliver it to persons whom
he or she knows, or should reasonably know, intend to use the object
to facilitate a violation of this section. The innocence of an owner,
or of anyone in control of the object, as to a direct violation of
this section shall not prevent a finding that the object is intended
for use, or designed for use, as drug paraphernalia.
(4) Instructions, oral or written, provided with the object
concerning its use.
(5) Descriptive materials, accompanying the object which explain
or depict its use.
(6) National and local advertising concerning its use.
(7) The manner in which the object is displayed for sale.
(8) Whether the owner, or anyone in control of the object, is a
legitimate supplier of like or related items to the community, such
as a licensed distributor or dealer of tobacco products.
(9) The existence and scope of legitimate uses for the object in
the community.
(10) Expert testimony concerning its use.
(f) This section shall not apply to any of the following:
(1) Any pharmacist or other authorized person who sells or
furnishes drug paraphernalia described in paragraph (11) of
subdivision (d) upon the prescription of a physician, dentist,
podiatrist or veterinarian.
(2) Any physician, dentist, podiatrist or veterinarian who
furnishes or prescribes drug paraphernalia described in paragraph
(11) of subdivision (d) to his or her patients.
(3) Any manufacturer, wholesaler or retailer licensed by the
California State Board of Pharmacy to sell or transfer drug
paraphernalia described in paragraph (11) of subdivision (d).
(g) Notwithstanding any other provision of law, including Section
11374, violation of this section shall not constitute a criminal
offense, but operation of a business in violation of the provisions
of this section shall be grounds for revocation or nonrenewal of any
license, permit, or other entitlement previously issued by a city,
county, or city and county for the privilege of engaging in such
business and shall be grounds for denial of any future license,
permit, or other entitlement authorizing the conduct of such business
or any other business, if the business includes the sale of drug
paraphernalia.
11364.7. (a) Except as authorized by law, any person who delivers,
furnishes, or transfers, possesses with intent to deliver, furnish,
or transfer, or manufactures with the intent to deliver, furnish, or
transfer, drug paraphernalia, knowing, or under circumstances where
one reasonably should know, that it will be used to plant, propagate,
cultivate, grow, harvest, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain, conceal,
inject, ingest, inhale, or otherwise introduce into the human body a
controlled substance, except as provided in subdivision (b), in
violation of this division, is guilty of a misdemeanor.
No public entity, its agents, or employees shall be subject to
criminal prosecution for distribution of hypodermic needles or
syringes to participants in clean needle and syringe exchange
projects authorized by the public entity pursuant to Chapter 18
(commencing with Section 121349) of Part 4 of Division 105.
(b) Except as authorized by law, any person who manufactures with
intent to deliver, furnish, or transfer drug paraphernalia knowing,
or under circumstances where one reasonably should know, that it will
be used to plant, propagate, cultivate, grow, harvest, manufacture,
compound, convert, produce, process, prepare, test, analyze, pack,
repack, store, contain, conceal, inject, ingest, inhale, or otherwise
introduce into the human body cocaine, cocaine base, heroin,
phencyclidine, or methamphetamine in violation of this division shall
be punished by imprisonment in a county jail for not more than one
year, or in the state prison.
(c) Except as authorized by law, any person, 18 years of age or
over, who violates subdivision (a) by delivering, furnishing, or
transferring drug paraphernalia to a person under 18 years of age who
is at least three years his or her junior, or who, upon the grounds
of a public or private elementary, vocational, junior high, or high
school, possesses a hypodermic needle, as defined in paragraph (7) of
subdivision (a) of Section 11014.5, with the intent to deliver,
furnish, or transfer the hypodermic needle, knowing, or under
circumstances where one reasonably should know, that it will be used
by a person under 18 years of age to inject into the human body a
controlled substance, is guilty of a misdemeanor and shall be
punished by imprisonment in a county jail for not more than one year,
by a fine of not more than one thousand dollars ($1,000), or by both
that imprisonment and fine.
(d) The violation, or the causing or the permitting of a
violation, of subdivision (a), (b), or (c) by a holder of a business
or liquor license issued by a city, county, or city and county, or by
the State of California, and in the course of the licensee's
business shall be grounds for the revocation of that license.
(e) All drug paraphernalia defined in Section 11014.5 is subject
to forfeiture and may be seized by any peace officer pursuant to
Section 11471.
(f) If any provision of this section or the application thereof to
any person or circumstance is held invalid, it is the intent of the
Legislature that the invalidity shall not affect other provisions or
applications of this section which can be given effect without the
invalid provision or application and to this end the provisions of
this section are severable.
11365. (a) It is unlawful to visit or to be in any room or place
where any controlled substances which are specified in subdivision
(b), (c), or (e), or paragraph (1) of subdivision (f) of Section
11054, specified in paragraph (14), (15), or (20) of subdivision (d)
of Section 11054, or specified in subdivision (b) or (c) or paragraph
(2) of subdivision (d) of Section 11055, or which are narcotic drugs
classified in Schedule III, IV, or V, are being unlawfully smoked or
used with knowledge that such activity is occurring.
(b) This section shall apply only where the defendant aids,
assists, or abets the perpetration of the unlawful smoking or use of
a controlled substance specified in subdivision (a). This subdivision
is declaratory of existing law as expressed in People v. Cressey
(1970) 2 Cal. 3d 836.
11366. Every person who opens or maintains any place for the
purpose of unlawfully selling, giving away, or using any controlled
substance which is (1) specified in subdivision (b), (c), or (e), or
paragraph (1) of subdivision (f) of Section 11054, specified in
paragraph (13), (14), (15), or (20) of subdivision (d) of Section
11054, or specified in subdivision (b), (c), paragraph (1) or (2) of
subdivision (d), or paragraph (3) of subdivision (e) of Section
11055, or (2) which is a narcotic drug classified in Schedule III,
IV, or V, shall be punished by imprisonment in the county jail for a
period of not more than one year or the state prison.
11366.5. (a) Any person who has under his or her management or
control any building, room, space, or enclosure, either as an owner,
lessee, agent, employee, or mortgagee, who knowingly rents, leases,
or makes available for use, with or without compensation, the
building, room, space, or enclosure for the purpose of unlawfully
manufacturing, storing, or distributing any controlled substance for
sale or distribution shall be punished by imprisonment in the county
jail for not more than one year, or in the state prison.
(b) Any person who has under his or her management or control any
building, room, space, or enclosure, either as an owner, lessee,
agent, employee, or mortgagee, who knowingly allows the building,
room, space, or enclosure to be fortified to suppress law enforcement
entry in order to further the sale of any amount of cocaine base as
specified in paragraph (1) of subdivision (f) of Section 11054,
cocaine as specified in paragraph (6) of subdivision (b) of Section
11055, heroin, phencyclidine, amphetamine, methamphetamine, or
lysergic acid diethylamide and who obtains excessive profits from the
use of the building, room, space, or enclosure shall be punished by
imprisonment in the state prison for two, three, or four years.
(c) Any person who violates subdivision (a) after previously being
convicted of a violation of subdivision (a) shall be punished by
imprisonment in the state prison for two, three, or four years.
(d) For the purposes of this section, "excessive profits" means
the receipt of consideration of a value substantially higher than
fair market value.
11366.6. Any person who utilizes a building, room, space, or
enclosure specifically designed to suppress law enforcement entry in
order to sell, manufacture, or possess for sale any amount of cocaine
base as specified in paragraph (1) of subdivision (f) of Section
11054, cocaine as specified in paragraph (6) of subdivision (b) of
Section 11055, heroin, phencyclidine, amphetamine, methamphetamine,
or lysergic acid diethylamide shall be punished by imprisonment in
the state prison for three, four, or five years.
11366.7. (a) This section shall apply to the following:
(1) Any chemical or drug.
(2) Any laboratory apparatus or device.
(b) Any retailer or wholesaler who sells any item in paragraph (1)
or (2) of subdivision (a) with knowledge or the intent that it will
be used to unlawfully manufacture, compound, convert, process, or
prepare a controlled substance for unlawful sale or distribution,
shall be punished by imprisonment in a county jail for not more than
one year, or in the state prison, or by a fine not exceeding
twenty-five thousand dollars ($25,000), or by both that imprisonment
and fine. Any fine collected pursuant to this section shall be
distributed as specified in Section 1463.10 of the Penal Code.
11366.8. (a) Every person who possesses, uses, or controls a false
compartment with the intent to store, conceal, smuggle, or transport
a controlled substance within the false compartment shall be punished
by imprisonment in a county jail for a term of imprisonment not to
exceed one year or in the state prison.
(b) Every person who designs, constructs, builds, alters, or
fabricates a false compartment for, or installs or attaches a false
compartment to, a vehicle with the intent to store, conceal, smuggle,
or transport a controlled substance shall be punished by
imprisonment in the state prison for 16 months or two or three years.
(c) The term "vehicle" means any of the following vehicles without
regard to whether the vehicles are private or commercial, including,
but not limited to, cars, trucks, buses, aircraft, boats, ships,
yachts, and vessels.
(d) The term "false compartment" means any box, container, space,
or enclosure that is intended for use or designed for use to conceal,
hide, or otherwise prevent discovery of any controlled substance
within or attached to a vehicle, including, but not limited to, any
of the following:
(1) False, altered, or modified fuel tanks.
(2) Original factory equipment of a vehicle that is modified,
altered, or changed.
(3) Compartment, space, or box that is added to, or fabricated,
made, or created from, existing compartments, spaces, or boxes within
a vehicle.
11367. All duly authorized peace officers, while investigating
violations of this division in performance of their official duties,
and any person working under their immediate direction, supervision
or instruction, are immune from prosecution under this division.
11367.5. (a) Any sheriff, chief of police, the Chief of the Bureau
of Narcotic Enforcement, or the Commissioner of the California
Highway Patrol, or a designee thereof, may, in his or her discretion,
provide controlled substances in his or her possession and control
to any duly authorized peace officer or civilian drug detection
canine trainer working under the direction of a law enforcement
agency, provided the controlled substances are no longer needed as
criminal evidence and provided the person receiving the controlled
substances, if required by the Drug Enforcement Administration,
possesses a current and valid Drug Enforcement Administration
registration which specifically authorizes the recipient to possess
controlled substances while providing substance abuse training to law
enforcement or the community or while providing canine drug
detection training.
(b) All duly authorized peace officers, while providing substance
abuse training to law enforcement or the community or while providing
canine drug detection training, in performance of their official
duties, and any person working under their immediate direction,
supervision, or instruction, are immune from prosecution under this
division.
(c) (1) Any person receiving controlled substances pursuant to
subdivision (a) shall maintain custody and control of the controlled
substances and shall keep records regarding any loss of, or damage
to, those controlled substances.
(2) All controlled substances shall be maintained in a secure
location approved by the dispensing agency.
(3) Any loss shall be reported immediately to the dispensing
agency.
(4) All controlled substances shall be returned to the dispensing
agency upon the conclusion of the training or upon demand by the
dispensing agency.
11368. Every person who forges or alters a prescription or who
issues or utters an altered prescription, or who issues or utters a
prescription bearing a forged or fictitious signature for any
narcotic drug, or who obtains any narcotic drug by any forged,
fictitious, or altered prescription, or who has in possession any
narcotic drug secured by a forged, fictitious, or altered
prescription, shall be punished by imprisonment in the county jail
for not less than six months nor more than one year, or in the state
prison.
11369. When there is reason to believe that any person arrested for
a violation of Section 11350, 11351, 11351.5, 11352, 11353, 11355,
11357, 11359, 11360, 11361, 11363, 11366, 11368 or 11550, may not be
a citizen of the United States, the arresting agency shall notify the
appropriate agency of the United States having charge of deportation
matters.
11370. (a) Any person convicted of violating Section 11350, 11351,
11351.5, 11352, 11353, 11355, 11357, 11359, 11360, 11361, 11363,
11366, or 11368, or of committing any offense referred to in those
sections, shall not, in any case, be granted probation by the trial
court or have the execution of the sentence imposed upon him or her
suspended by the court, if he or she has been previously convicted of
any offense described in subdivision (c).
(b) Any person who was 18 years of age or over at the time of the
commission of the offense and is convicted for the first time of
selling, furnishing, administering, or giving a controlled substance
which is (1) specified in subdivision (b), (c), (e), or paragraph (1)
of subdivision (f) of Section 11054, specified in paragraph (14),
(15), or (20) of subdivision (d) of Section 11054, or specified in
subdivision (b) or (c) of Section 11055, or (2) which is a narcotic
drug classified in Schedule III, IV, or V, to a minor or inducing a
minor to use such a controlled substance in violation of law shall
not, in any case, be granted probation by the trial court or have the
execution of the sentence imposed upon him or her suspended by the
court.
(c) Any previous conviction of any of the following offenses, or
of an offense under the laws of another state or of the United States
which, if committed in this state, would have been punishable as
such an offense, shall render a person ineligible for probation or
suspension of sentence pursuant to subdivision (a) of this section:
(1) Any felony offense described in this division involving a
controlled substance specified in subdivision (b), (c), (e), or
paragraph (1) of subdivision (f) of Section 11054, specified in
paragraph (13), (14), (15), or (20) of subdivision (d) of Section
11054, or specified in subdivision (b) or (c) of Section 11055.
(2) Any felony offense described in this division involving a
narcotic drug classified in Schedule III, IV, or V.
(d) The existence of any previous conviction or fact which would
make a person ineligible for suspension of sentence or probation
under this section shall be alleged in the information or indictment,
and either admitted by the defendant in open court, or found to be
true by the jury trying the issue of guilt or by the court where
guilt is established by a plea of guilty or nolo contendere or by
trial by the court sitting without a jury.
11370.1. (a) Notwithstanding Section 11350 or 11377 or any other
provision of law, every person who unlawfully possesses any amount of
a substance containing cocaine base, a substance containing cocaine,
a substance containing heroin, a substance containing
methamphetamine, a crystalline substance containing phencyclidine, a
liquid substance containing phencyclidine, plant material containing
phencyclidine, or a hand-rolled cigarette treated with phencyclidine
while armed with a loaded, operable firearm is guilty of a felony
punishable by imprisonment in the state prison for two, three, or
four years.
As used in this subdivision, "armed with" means having available
for immediate offensive or defensive use.
(b) Any person who is convicted under this section shall be
ineligible for diversion or deferred entry of judgment under Chapter
2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal
Code.
11370.2. (a) Any person convicted of a violation of, or of a
conspiracy to violate, Section 11351, 11351.5, or 11352 shall
receive, in addition to any other punishment authorized by law,
including Section 667.5 of the Penal Code, a full, separate, and
consecutive three-year term for each prior felony conviction of, or
for each prior felony conviction of conspiracy to violate, Section
11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6,
11380, 11380.5, or 11383, whether or not the prior conviction
resulted in a term of imprisonment.
(b) Any person convicted of a violation of, or of a conspiracy to
violate, Section 11378.5, 11379.5, 11379.6, 11380.5, or 11383 shall
receive, in addition to any other punishment authorized by law,
including Section 667.5 of the Penal Code, a full, separate, and
consecutive three-year term for each prior felony conviction of, or
for each prior felony conviction of conspiracy to violate, Section
11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6,
11380, 11380.5, or 11383, whether or not the prior conviction
resulted in a term of imprisonment.
(c) Any person convicted of a violation of, or of a conspiracy to
violate, Section 11378 or 11379 with respect to any substance
containing a controlled substance specified in paragraph (1) or (2)
of subdivision (d) of Section 11055 shall receive, in addition to any
other punishment authorized by law, including Section 667.5 of the
Penal Code, a full, separate, and consecutive three-year term for
each prior felony conviction of, or for each prior felony conviction
of conspiracy to violate, Section 11351, 11351.5, 11352, 11378,
11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether
or not the prior conviction resulted in a term of imprisonment.
(d) The enhancements provided for in this section shall be pleaded
and proven as provided by law.
(e) The conspiracy enhancements provided for in this section shall
not be imposed unless the trier of fact finds that the defendant
conspirator was substantially involved in the planning, direction,
execution, or financing of the underlying offense.
(f) Prior convictions from another jurisdiction qualify for use
under this section pursuant to Section 668.
11370.4. (a) Any person convicted of a violation of, or of a
conspiracy to violate, Section 11351, 11351.5, or 11352 with respect
to a substance containing heroin, cocaine base as specified in
paragraph (1) of subdivision (f) of Section 11054, or cocaine as
specified in paragraph (6) of subdivision (b) of Section 11055 shall
receive an additional term as follows:
(1) Where the substance exceeds one kilogram by weight, the person
shall receive an additional term of three years.
(2) Where the substance exceeds four kilograms by weight, the
person shall receive an additional term of five years.
(3) Where the substance exceeds 10 kilograms by weight, the person
shall receive an additional term of 10 years.
(4) Where the substance exceeds 20 kilograms by weight, the person
shall receive an additional term of 15 years.
(5) Where the substance exceeds 40 kilograms by weight, the person
shall receive an additional term of 20 years.
(6) Where the substance exceeds 80 kilograms by weight, the person
shall receive an additional term of 25 years.
The conspiracy enhancements provided for in this subdivision shall
not be imposed unless the trier of fact finds that the defendant
conspirator was substantially involved in the planning, direction,
execution, or financing of the underlying offense.
(b) Any person convicted of a violation of, or of conspiracy to
violate, Section 11378, 11378.5, 11379, or 11379.5 with respect to a
substance containing methamphetamine, amphetamine, phencyclidine
(PCP) and its analogs shall receive an additional term as follows:
(1) Where the substance exceeds one kilogram by weight, or 30
liters by liquid volume, the person shall receive an additional term
of three years.
(2) Where the substance exceeds four kilograms by weight, or 100
liters by liquid volume, the person shall receive an additional term
of five years.
(3) Where the substance exceeds 10 kilograms by weight, or 200
liters by liquid volume, the person shall receive an additional term
of 10 years.
(4) Where the substance exceeds 20 kilograms by weight, or 400
liters by liquid volume, the person shall receive an additional term
of 15 years.
In computing the quantities involved in this subdivision, plant or
vegetable material seized shall not be included.
The conspiracy enhancements provided for in this subdivision shall
not be imposed unless the trier of fact finds that the defendant
conspirator was substantially involved in the planning, direction,
execution, or financing of the underlying offense.
(c) The additional terms provided in this section shall not be
imposed unless the allegation that the weight of the substance
containing heroin, cocaine base as specified in paragraph (1) of
subdivision (f) of Section 11054, cocaine as specified in paragraph
(6) of subdivision (b) of Section 11055, methamphetamine,
amphetamine, or phencyclidine (PCP) and its analogs exceeds the
amounts provided in this section is charged in the accusatory
pleading and admitted or found to be true by the trier of fact.
(d) The additional terms provided in this section shall be in
addition to any other punishment provided by law.
(e) Notwithstanding any other provision of law, the court may
strike the additional punishment for the enhancements provided in
this section if it determines that there are circumstances in
mitigation of the additional punishment and states on the record its
reasons for striking the additional punishment.
11370.6. (a) Every person who possesses any moneys or negotiable
instruments in excess of one hundred thousand dollars ($100,000)
which have been obtained as the result of the unlawful sale,
possession for sale, transportation, manufacture, offer for sale, or
offer to manufacture any controlled substance listed in Section
11054, 11055, 11056, 11057, or 11058, with knowledge that the moneys
or negotiable instruments have been so obtained, and any person who
possesses any moneys or negotiable instruments in excess of one
hundred thousand dollars ($100,000) which are intended by that person
for the unlawful purchase of any controlled substance listed in
Section 11054, 11055, 11056, 11057, or 11058 and who commits an act
in substantial furtherance of the unlawful purchase, shall be
punished by imprisonment in the county jail for a term not to exceed
one year, or by imprisonment in the state prison for two, three, or
four years.
(b) In consideration of the constitutional right to counsel
afforded by the Sixth Amendment to the United States Constitution and
Section 15 of Article 1 of the California Constitution, when a case
charged under subdivision (a) involves an attorney who accepts a fee
for representing a client in a criminal investigation or proceeding,
the prosecution shall additionally be required to prove that the
moneys or negotiable instruments were accepted by the attorney with
the intent to participate in the unlawful conduct described in
subdivision (a) or to disguise or aid in disguising the source of the
funds or the nature of the criminal activity.
(c) In determining the guilt or innocence of a person charged
under subdivision (a), the trier of fact may consider the following
in addition to any other relevant evidence:
(1) The lack of gainful employment by the person charged.
(2) The expert opinion of a qualified controlled substances expert
as to the source of the assets.
(3) The existence of documents or ledgers that indicate sales of
controlled substances.
11370.9. (a) It is unlawful for any person knowingly to receive or
acquire proceeds, or engage in a transaction involving proceeds,
known to be derived from any violation of this division or Division
10.1 with the intent to conceal or disguise or aid in concealing or
disguising the nature, location, ownership, control, or source of the
proceeds or to avoid a transaction reporting requirement under state
or federal law.
(b) It is unlawful for any person knowingly to give, sell,
transfer, trade, invest, conceal, transport, or maintain an interest
in, or otherwise make available, anything of value which that person
knows is intended to be used for the purpose of committing, or
furthering the commission of, any violation of this division or
Division 10.1 with the intent to conceal or disguise or aid in
concealing or disguising the nature, location, ownership, control, or
source of the proceeds or to avoid a transaction reporting
requirement under state or federal law.
(c) It is unlawful for any person knowingly to direct, plan,
organize, initiate, finance, manage, supervise, or facilitate the
transportation or transfer of proceeds known to be derived from any
violation of this division or Division 10.1 with the intent to
conceal or disguise or aid in concealing or disguising the nature,
location, ownership, control, or source of the proceeds or to avoid a
transaction reporting requirement under state or federal law.
(d) It is unlawful for any person knowingly to conduct a
transaction involving proceeds derived from a violation of this
division or Division 10.1 when the transaction is designed in whole
or in part to conceal or disguise the nature, location, source,
ownership, or control of the proceeds known to be derived from a
violation of this division or Division 10.1 with the intent to
conceal or disguise or aid in concealing or disguising the nature,
location, ownership, control, or source of the proceeds or to avoid a
transaction reporting requirement under state or federal law.
(e) A violation of this section shall be punished by imprisonment
in a county jail for not more than one year or in the state prison
for a period of two, three, or four years, by a fine of not more than
two hundred fifty thousand dollars ($250,000) or twice the value of
the proceeds or property involved in the violation, whichever is
greater, or by both that imprisonment and fine. Notwithstanding any
other provision of law, each violation of this section shall
constitute a separate, punishable offense without limitation.
(f) This section shall apply only to a transaction, or series of
related transactions within a 30-day period, involving over
twenty-five thousand dollars ($25,000) or to proceeds of a value
exceeding twenty-five thousand dollars ($25,000).
(g) In consideration of the constitutional right to counsel
afforded by the Sixth Amendment to the United States Constitution and
Section 15 of Article 1 of the California Constitution, this section
is not intended to apply to the receipt of, or a related transaction
involving, a fee by an attorney for the purpose of providing advice
or representing a person in a criminal investigation or prosecution.
(h) For the purposes of this section, the following terms have the
following meanings:
(1) "Proceeds" means property acquired or derived directly or
indirectly from, produced through, or realized through any violation
of this division or Division 10.1.
(2) "Transaction" includes a purchase, sale, trade, loan, pledge,
investment, gift, transfer, transmission, delivery, deposit,
withdrawal, payment, electronic, magnetic, or manual transfer between
accounts, exchange of currency, extension of credit, purchase or
sale of any monetary instrument, or any other acquisition or
disposition of property by whatever means effected.
(3) "Represented by a law enforcement officer" means any
representation of fact made by a peace officer as defined in Section
7 of the Penal Code, or a federal officer described in subsection (e)
of Sections 1956 and 1957 of Title 18 of the United States Code, or
by another person at the direction of, or with the approval of, that
peace officer or federal officer.
11371. Any person who shall knowingly violate any of the provisions
of Section 11153, 11154, 11155, or 11156 with respect to (1) a
controlled substance specified in subdivision (b), (c), or (d) of
Section 11055, or (2) a controlled substance specified in paragraph
(1) of subdivision (b) of Section 11056, or (3) a controlled
substance which is a narcotic drug classified in Schedule III, IV, or
V, or who in any voluntary manner solicits, induces, encourages or
intimidates any minor with the intent that such minor shall commit
any such offense, shall be punished by imprisonment in the state
prison or in a county jail not exceeding one year, or by a fine not
exceeding twenty thousand dollars ($20,000), or by both such fine and
imprisonment.
11371.1. Any person who shall knowingly violate any of the
provisions of Section 11173 or 11174 with respect to (1) a controlled
substance specified in subdivision (b), (c), or (d) of Section
11055, or (2) a controlled substance specified in paragraph (1) of
subdivision (b) of Section 11056, or (3) a controlled substance which
is a narcotic drug classified in Schedule III, IV, or V, or who in
any voluntary manner solicits, induces, encourages or intimidates any
minor with the intent that such minor shall commit any such offense,
shall be punished by imprisonment in the state prison, or in a
county jail not exceeding one year.
11372. (a) In addition to the term of imprisonment provided by law
for persons convicted of violating Section 11350, 11351, 11351.5,
11352, 11353, 11355, 11359, 11360, or 11361, the trial court may
impose a fine not exceeding twenty thousand dollars ($20,000) for
each offense. In no event shall a fine be levied in lieu of or in
substitution for the term of imprisonment provided by law for any of
these offenses.
(b) Any person receiving an additional term pursuant to paragraph
(1) of subdivision (a) of Section 11370.4, may, in addition, be fined
by an amount not exceeding one million dollars ($1,000,000) for each
offense.
(c) Any person receiving an additional term pursuant to paragraph
(2) of subdivision (a) of Section 11370.4, may, in addition, be fined
by an amount not to exceed four million dollars ($4,000,000) for
each offense.
(d) Any person receiving an additional term pursuant to paragraph
(3) of subdivision (a) of Section 11370.4, may, in addition, be fined
by an amount not to exceed eight million dollars ($8,000,000) for
each offense.
(e) The court shall make a finding, prior to the imposition of the
fines authorized by subdivisions (b) to (e), inclusive, that there
is a reasonable expectation that the fine, or a substantial portion
thereof, could be collected within a reasonable period of time,
taking into consideration the defendant's income, earning capacity,
and financial resources.
11372.5. (a) Every person who is convicted of a violation of
Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361,
11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5,
11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or
subdivision (a) or (c) of Section 11357, or subdivision (a) of
Section 11360 of this code, or Section 4230 of the Business and
Professions Code shall pay a criminal laboratory analysis fee in the
amount of fifty dollars ($50) for each separate offense. The court
shall increase the total fine necessary to include this increment.
With respect to those offenses specified in this subdivision for
which a fine is not authorized by other provisions of law, the court
shall, upon conviction, impose a fine in an amount not to exceed
fifty dollars ($50), which shall constitute the increment prescribed
by this section and which shall be in addition to any other penalty
prescribed by law.
(b) The county treasurer shall maintain a criminalistics
laboratories fund. The sum of fifty dollars ($50) shall be deposited
into the fund for every conviction under Section 11350, 11351,
11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368,
11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380,
11380.5, 11382, 11383, 11390, 11391, or 11550, subdivision (a) or (c)
of Section 11357, or subdivision (a) of Section 11360 of this code,
or Section 4230 of the Business and Professions Code, in addition to
fines, forfeitures, and other moneys which are transmitted by the
courts to the county treasurer pursuant to Section 11502. The
deposits shall be made prior to any transfer pursuant to Section
11502. The county may retain an amount of this money equal to its
administrative cost incurred pursuant to this section. Moneys in the
criminalistics laboratories fund shall, except as otherwise provided
in this section, be used exclusively to fund (1) costs incurred by
criminalistics laboratories providing microscopic and chemical
analyses for controlled substances, in connection with criminal
investigations conducted within both the incorporated or
unincorporated portions of the county, (2) the purchase and
maintenance of equipment for use by these laboratories in performing
the analyses, and (3) for continuing education, training, and
scientific development of forensic scientists regularly employed by
these laboratories. Moneys in the criminalistics laboratory fund
shall be in addition to any allocations pursuant to existing law. As
used in this section, "criminalistics laboratory" means a laboratory
operated by, or under contract with, a city, county, or other public
agency, including a criminalistics laboratory of the Department of
Justice, (1) which has not less than one regularly employed forensic
scientist engaged in the analysis of solid-dose controlled
substances, and (2) which is registered as an analytical laboratory
with the Drug Enforcement Administration of the United States
Department of Justice for the possession of all scheduled controlled
substances. In counties served by criminalistics laboratories of the
Department of Justice, amounts deposited in the criminalistics
laboratories fund, after deduction of appropriate and reasonable
county overhead charges not to exceed 5 percent attributable to the
collection thereof, shall be paid by the county treasurer once a
month to the Controller for deposit into the state General Fund, and
shall be excepted from the expenditure requirements otherwise
prescribed by this subdivision.
(c) The county treasurer shall, at the conclusion of each fiscal
year, determine the amount of any funds remaining in the special fund
established pursuant to this section after expenditures for that
fiscal year have been made for the purposes herein specified. The
board of supervisors may, by resolution, assign the treasurer's duty
to determine the amount of remaining funds to the auditor or another
county officer. The county treasurer shall annually distribute those
surplus funds in accordance with the allocation scheme for
distribution of fines and forfeitures set forth in Section 11502.
11372.7. (a) Except as otherwise provided in subdivision (b) or
(e), each person who is convicted of a violation of this chapter
shall pay a drug program fee in an amount not to exceed one hundred
fifty dollars ($150) for each separate offense. The court shall
increase the total fine, if necessary, to include this increment,
which shall be in addition to any other penalty prescribed by law.
(b) The court shall determine whether or not the person who is
convicted of a violation of this chapter has the ability to pay a
drug program fee. If the court determines that the person has the
ability to pay, the court may set the amount to be paid and order the
person to pay that sum to the county in a manner that the court
believes is reasonable and compatible with the person's financial
ability. In its determination of whether a person has the ability to
pay, the court shall take into account the amount of any fine imposed
upon that person and any amount that person has been ordered to pay
in restitution. If the court determines that the person does not have
the ability to pay a drug program fee, the person shall not be
required to pay a drug program fee.
(c) The county treasurer shall maintain a drug program fund. For
every drug program fee assessed and collected pursuant to
subdivisions (a) and (b), an amount equal to this assessment shall be
deposited into the fund for every conviction pursuant to this
chapter, in addition to fines, forfeitures, and other moneys which
are transmitted by the courts to the county treasurer pursuant to
Sections 11372.5 and 11502. These deposits shall be made prior to any
transfer pursuant to Section 11502. Amounts deposited in the drug
program fund shall be allocated by the administrator of the county's
drug program to drug abuse programs in the schools and the community,
subject to the approval of the board of supervisors, as follows:
(1) The moneys in the fund shall be allocated through the planning
process established pursuant to Sections 11983, 11983.1, 11983.2,
and 11983.3.
(2) A minimum of 33 percent of the fund shall be allocated to
primary prevention programs in the schools and the community. Primary
prevention programs developed and implemented under this article
shall emphasize cooperation in planning and program implementation
among schools and community drug abuse agencies, and shall
demonstrate coordination through an interagency agreement among
county offices of education, school districts, and the county drug
program administrator. These primary prevention programs may include:
(A) School- and classroom-oriented programs, including, but not
limited to, programs designed to encourage sound decisionmaking, an
awareness of values, an awareness of drugs and their effects,
enhanced self-esteem, social and practical skills that will assist
students toward maturity, enhanced or improved school climate and
relationships among all school personnel and students, and
furtherance of cooperative efforts of school- and community-based
personnel.
(B) School- or community-based nonclassroom alternative programs,
or both, including, but not limited to, positive peer group programs,
programs involving youth and adults in constructive activities
designed as alternatives to drug use, and programs for special target
groups, such as women, ethnic minorities, and other high-risk,
high-need populations.
(C) Family-oriented programs, including, but not limited to,
programs aimed at improving family relationships and involving
parents constructively in the education and nurturing of their
children, as well as in specific activities aimed at preventing drug
abuse.
(d) Moneys deposited into a county drug program fund pursuant to
this section shall supplement, and shall not supplant, any local
funds made available to support the county's drug abuse prevention
and treatment efforts.
(e) This section shall not apply to any person convicted of a
violation of subdivision (b) of Section 11357 of the Health and
Safety Code.
11373. (a) Whenever any person who is otherwise eligible for
probation is granted probation by the trial court after conviction
for a violation of any controlled substance offense under this
division, the trial court shall, as a condition of probation, order
that person to secure education or treatment from a local community
agency designated by the court, if the service is available and the
person is likely to benefit from the service.
If the defendant is a minor, the trial court shall also order his
or her parents or guardian to participate in the education or
treatment to the extent the court determines that participation will
aid the education or treatment of the minor.
If a minor is found by a juvenile court to have been in possession
of any controlled substance, in addition to any other order it may
make, the juvenile court shall order the minor to receive education
or treatment from a local community agency designated by the court,
if the service is available and the person is likely to benefit from
the service, and it shall also order his or her parents or guardian
to participate in the education or treatment to the extent the court
determines that participation will aid the education or treatment of
the minor.
(b) The willful failure to complete a court ordered education or
treatment program shall be a circumstance in aggravation for purposes
of sentencing for any subsequent prosecution for a violation of
Section 11353, 11354, or 11380. The failure to complete an education
or treatment program because of the person's inability to pay the
costs of the program or because of the unavailability to the
defendant of appropriate programs is not a willful failure to
complete the program.
11374. Every person who violates or fails to comply with any
provision of this division, except one for which a penalty is
otherwise in this division specifically provided, is guilty of a
misdemeanor punishable by a fine in a sum not less than thirty
dollars ($30) nor more than five hundred dollars ($500), or by
imprisonment for not less than 15 nor more than 180 days, or by both.
11374.5. (a) Any manufacturer of a controlled substance who
disposes of any hazardous substance that is a controlled substance or
a chemical used in, or is a byproduct of, the manufacture of a
controlled substance in violation of any law regulating the disposal
of hazardous substances or hazardous waste is guilty of a public
offense punishable by imprisonment in the state prison for two,
three, or four years or in the county jail not exceeding one year.
(b) (1) In addition to any other penalty or liability imposed by
law, a person who is convicted of violating subdivision (a), or any
person who is convicted of the manufacture, sale, possession for
sale, possession, transportation, or disposal of any hazardous
substance that is a controlled substance or a chemical used in, or is
a byproduct of, the manufacture of a controlled substance in
violation of any law, shall pay a penalty equal to the amount of the
actual cost incurred by the state or local agency to remove and
dispose of the hazardous substance that is a controlled substance or
a chemical used in, or is a byproduct of, the manufacture of a
controlled substance and to take removal action with respect to any
release of the hazardous substance or any items or materials
contaminated by that release, if the state or local agency requests
the prosecuting authority to seek recovery of that cost. The court
shall transmit all penalties collected pursuant to this subdivision
to the county treasurer of the county in which the court is located
for deposit in a special account in the county treasury. The county
treasurer shall pay that money at least once a month to the agency
that requested recovery of the cost for the removal action. The
county may retain up to 5 percent of any assessed penalty for
appropriate and reasonable administrative costs attributable to the
collection and disbursement of the penalty.
(2) If the Department of Toxic Substances Control has requested
recovery of the cost of removing the hazardous substance that is a
controlled substance or a chemical used in, or is a byproduct of, the
manufacture of a controlled substance or taking removal action with
respect to any release of the hazardous substance, the county
treasurer shall transfer funds in the amount of the penalty collected
to the Treasurer, who shall deposit the money in the Illegal Drug
Lab Cleanup Account, which is hereby created in the General Fund in
the State Treasury. The Department of Toxic Substances Control may
expend the money in the Illegal Drug Lab Cleanup Account, upon
appropriation by the Legislature, to cover the cost of taking removal
actions pursuant to Section 25354.5.
(3) If a local agency and the Department of Toxic Substances
Control have both requested recovery of removal costs with respect to
a hazardous substance that is a controlled substance or a chemical
used in, or is a byproduct of, the manufacture of a controlled
substance, the county treasurer shall apportion any penalty collected
among the agencies involved in proportion to the costs incurred.
(c) As used in this section the following terms have the following
meaning:
(1) "Dispose" means to abandon, deposit, intern, or otherwise
discard as a final action after use has been achieved or a use is no
longer intended.
(2) "Hazardous substance" has the same meaning as defined in
Section 25316.
(3) "Hazardous waste" has the same meaning as defined in Section
25117.
(4) For purposes of this section, "remove" or "removal" has the
same meaning as set forth in Section 25323.
11375. (a) As to the substances specified in subdivision (c), this
section, and not Sections 11377, 11378, 11379, and 11380, shall
apply.
(b) (1) Every person who possesses for sale, or who sells, any
substance specified in subdivision (c) shall be punished by
imprisonment in the county jail for a period of not more than one
year or state prison.
(2) Every person who possesses any controlled substance specified
in subdivision (c), unless upon the prescription of a physician,
dentist, podiatrist, or veterinarian, licensed to practice in this
state, shall be guilty of an infraction or a misdemeanor.
(c) This section shall apply to any material, compound, mixture,
or preparation containing any of the following substances:
(1) Chlordiazepoxide.
(2) Clonazepam.
(3) Clorazepate.
(4) Diazepam.
(5) Flurazepam.
(6) Lorazepam.
(7) Mebutamate.
(8) Oxazepam.
(9) Prazepam.
(10) Temazepam.
(11) Halazepam.
(12) Alprazolam.
(13) Propoxyphene.
(14) Diethylpropion.
(15) Phentermine.
(16) Pemoline.
(17) Fenfluramine.
(18) Triazolam.
11375. (a) As to the substances specified in subdivision (c), this
section, and not Sections 11377, 11378, 11379, and 11380, shall
apply.
(b) (1) Every person who possesses for sale, or who sells, any
substance specified in subdivision (c) shall be punished by
imprisonment in the county jail for a period of not more than one
year or state prison.
(2) Every person who possesses any controlled substance specified
in subdivision (c), unless upon the prescription of a physician,
dentist, podiatrist, or veterinarian, licensed to practice in this
state, shall be guilty of an infraction or a misdemeanor.
(c) This section shall apply to any material, compound, mixture,
or preparation containing any of the following substances:
(1) Chlordiazepoxide.
(2) Clonazepam.
(3) Clorazepate.
(4) Diazepam.
(5) Flurazepam.
(6) Lorazepam.
(7) Mebutamate.
(8) Oxazepam.
(9) Prazepam.
(10) Temazepam.
(11) Halazepam.
(12) Alprazolam.
(13) Propoxyphene.
(14) Diethylpropion.
(15) Phentermine.
(16) Pemoline.
(17) Triazolam.
11376. Upon the diversion or conviction of a person for any offense
involving substance abuse, the court may require, in addition to any
or all other terms of diversion or imprisonment, fine, or other
reasonable conditions of sentencing or probation imposed by the
court, that the defendant participate in and complete counseling or
education programs, or both, including, but not limited to, parent
education or parenting programs operated by community colleges,
school districts, other public agencies, or private agencies.
