LOS ANGELES

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FRIDAY, JULY 17, 2015

PERSPECTIVE

Bill revises law against transporting pot

By Allison B. Margolin and Raza Lawrence

his week, in Assembly Bill 730,

California revised a law that had
allowed people to be convicted
of felonies for transporting personal-use
amounts of marijuana and other drugs like
PCP (aka Angel Dust) and psilocybin (i.e.,
psychedelic) mushrooms. Previously, the
law imposed up to four years in state prison
for people who merely walked, biked,
skateboarded or drove their own bag of
marijuana down the street, with no intent to
sell it to anyone.
Interestingly, while transportation of
marijuana is considered a misdemeanor
only when it is under an ounce, and a
felony if more, transporting any amount of
mushrooms under Health and Safety Code
Section 11391 is a wobbler meaning it can
be charged as or reduced to a misdemeanor.
On Monday, however, Gov. Jerry Brown
approved AB 730, which amended Health
and Safety Code Sections 11360, 11379.5
and 11391 to clarify that for the purpose of
these sections, transport means to transport
for sale. Now, no one can be convicted of
felony transportation of marijuana unless
the prosecution proves beyond a reasonable
doubt that the marijuana was for purposes of
sales. This change applies marijuana as well
as PCP and psilocybin mushrooms.
In 2013, California enacted AB 721,
which similarly amended two Health and
Safety Code Sections 11352 and 11379 to
provide that, [f]or purposes of this section
transports means to transport for sale. This
restricted definition of felony transportation
applied to numerous drugs, including heroin,
cocaine and methamphetamine effectively
converting transportation for personal use
into simple misdemeanor possession. Yet for

The New York Times

A man rolls a joint in Arcata.

Under the revised law, a defendant could

fight allegations of felony transportation
of a large quantity of marijuana, PCP or
mushrooms by contending that the drugs
were for personal use. For example, a person
driving a large amount of psychedelic
mushrooms to a music festival could no
longer be convicted of felony transportation,
nor could he be convicted of possession
for sale, unless prosecutors could show he
intended to sell the mushrooms. Even if
the drugs are clearly more than would be
reasonable for personal use, the prosecutor
could not secure a felony transportation
conviction without proving beyond a
reasonable doubt the defendant intended to
exchange the drugs for money.
Because AB 730 does not expressly state
that it applies retroactively, people with prior
convictions for transporting marijuana for
personal use or furnishing would likely not
be eligible to reduce them to a misdemeanor
unless their case is still being appealed. We
encourage the state Legislature and governor
to put forward an amendment that would
allow for these changes to be retroactive.

no apparent reason, this amended definition

of drug transportation did not apply to
marijuana, PCP or psilocybin mushrooms.
Until this week, that is. Effective Jan. 1,
2016, AB 730 requires that a person have
the intent to sell these controlled substances
heroin, cocaine, methamphetamine, PCP,
psilocybin mushrooms and marijuana in
order to be convicted of felony transportation.
The previous incarnation of the law had
allowed district attorneys to arbitrarily
charge some individuals carrying marijuana
for personal use with felony marijuana
transportation even though state law provides Allison B. Margolin and Raza Lawrence
that possession of over an ounce of marijuana are partners at Margolin & Lawrence.
is a misdemeanor. The only additional
conduct the district attorney needed to prove
to turn those relatively minor offenses into
felonies was that the defendant had moved
the marijuana even the slightest distance.
Transportation was established by simply
carrying or conveying a usable quantity of
a controlled substance with knowledge of
its presence and illegal character. People v.
Emmal, 68 Cal. App. 4th 1313, 1316 (1998).
The crime included transport of controlled
RAZA LAWRENCE
substances for personal use. People v. ALLISON MARGOLIN
Margolin & Lawrence
Margolin & Lawrence
Rogers, 5 Cal. 3d 129, 134-35 (1971).

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