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Anyone remember H&S 11910?

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  • Anyone remember H&S 11910?

    Was that strictly a felony beef, or was it a 'wobbler' back when it was still used as an offense code?

    Thanx in advance.
    FFC

  • #2
    Another way in which a burden may be shifted to the defendant is illustrated by numerous drug statutes which provide for conviction on a showing that the defendant possessed a dangerous or restricted drug except upon prescription of a physician. (E.g., Health & Safety Code §§ 11500, 11910.) [Now Sections 11350 and 11377

    http://www.norml.org/index.cfm?Group_ID=4946

    No case has been found holding that knowledge of the nature of restricted dangerous drugs, possession of which is illegal under section 11910 of the Health and Safety Code, is a necessary element of the offense. (See however Fr***ini v. Superior Court, 7 Cal.App.3d 1005, 1015 [87 {Page 16 Cal.App.3d 872} Cal.Rptr. 32]; People v. Allen, 254 Cal.App.2d 597, 600-601 [62 Cal.Rptr. 235].) Both sides assume that such knowledge is an element and we can see no legitimate reason for differentiating between restricted dangerous drugs and narcotics. (Cf. People v. Winston, 46 Cal.2d 151, 159-161 [293 P.2d 40].) [7] By the same token it seems clear that the quantum of evidence necessary to show knowledge should be the same for both types of contraband. [8] The authority of cases such as People v. White, 71 Cal.2d 80, 83 [75 Cal.Rptr. 208, 450 P.2d 600]; People v. Roth, 261 Cal.App.2d 430, 445 [68 Cal.Rptr. 49] and the cases on which they, in turn, rely, compels us to hold that an inference of knowledge is justified from mere possession.

    http://online.ceb.com/CalCases/CA3/16CA3d863.htm

    FELONY.

    Comment


    • #3
      Originally posted by xraodcop View Post
      The case(s) you're citing relate to whether or not the person in possession, (although they knew they possessed an illegal drug), knew what the content of the capsule was, and would it make a difference in the level of the crime (misd. or fel.)

      I have found that the court, in sentencing, has discretion in determining whether or not the crime is to record as a felony or misdemeanor. If the code reads that the sentence is (ex) "up to one year in county jail, or up to three years in state prison" then it is truly a 'wobbler'. In such cases, if the court sentences the defendant to (ex) "60 days cj, $100 fine + assessments and 1 year probation'. then it is usually indicative of the courts determination that in this case the judge has considered this a misdemeanor conviction, by the lack of prison, and the short term of probation. I was also told that in California, at least, that if a judge wants to convict a person of a felony, but with short time, they may give out (ex) 120 days cj, and 3 years probation. The tip is in the 3 year probation term. Usually, if the court wants a felony recorded, the term of probation will be 3 years or more. (Of course, a giveaway is if the def get prison time suspended, with probation=FELONY!)

      BTW, this is from the Asst Manager of the Record Support Section of the BCII of the CA DOJ. I'm banking that he has the knowledge. He has been at the DOJ for over 20 years in records, so I'm guessing that he has 'the' clue! I will know definitively within 24 hours or so. He's calling me back with the scoop.

      Thanks for any help anyone else might be able to give.

      Comment

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