juvenile, possession with intent

[mich09]

What is the name of your state (only U.S. law)? CA
I have a 16 year old who is facing charges of Possession with Intent for 35 ecstasy pills. And additional alcohol/marijuana possession for small amounts and paraphenalia for a pipe.
He and a friend were pulled over for a traffic violation, the pipe was sitting in plain view and it all went from there. He had the pills in his pocket. He said to the officer "they're not all mine, they're for friends", or something like that. My question is about the possession with intent to sell/distribute - how hard/easy is it for them to prove the intent? Do they need to prove that there was going to be money exchanged in the future, or any sort of profit from it? How likely is this to stand up rather than possession? And, on a scale, how serious is this - what could he be looking at happening?

He has had prior encounters for marijuana possession (in another state) and alcohol.

Does anyone have any knowledge of 'wobblers' in CA in regards to drugs? (not in regards to the 'wobbly' that I threw at this kid) Could this turn into a 'strike'?

 

[CdwJava]

What are the specific charges he faces (code sections)? Knowing those will help determine what potential penalties he faces and what elements the state has to prove.

Note that distribution/sales can also apply when giving the dope away. With his admission that he was going to provide it to some friends, he pretty much became a dope dealer and through the possibility of rehab wight out the window absent a good plea deal.

He needs an attorney ASAP, and he probably needs to consider a plea to possession so that he can get drug treatment and a deferral to avoid a conviction. Also, he should not be talking to you about anything as there is no parent-child confidentiality under CA law. In other words, YOU could be called into court to testify as to his admissions to you.

Consult an attorney Monday morning.

- Carl

 

[mich09]

Thanks for your reply Carl.

I'm reading these from my husband's scribbles so I hope the numbers are right, the charges seem to be H&S 11357b, H&S 11379, 308 bpc, and bp 25662. These are the code sections you were looking for?

About 2 years ago he completed a diversion scheme in another state for a marijuana possession charge - would that impact on the chances of him being given a deferral in CA? This will also be his second 25662 charge in CA within the past year - any ideas on how seriously that will affect the whole situation?

We are arranging an attorney before the detention hearing. He is currently sitting in a cell. And I hope that means something to him. (unfortunately with this kid you can't be 100% sure)

Also, he should not be talking to you about anything as there is no parent-child confidentiality under CA law. In other words, YOU could be called into court to testify as to his admissions to you.

Really? Thanks for the tip.

 

[CdwJava]

Thanks for your reply Carl.

I'm reading these from my husband's scribbles so I hope the numbers are right, the charges seem to be H&S 11357b, H&S 11379, 308 bpc, and bp 25662. These are the code sections you were looking for?

In summary, these are charges for the possession of marijuana, possession of controlled substances for sale/delivery, possession of tobacco products (or items used to smoke tobacco), and possession of alcohol by a minor.

About 2 years ago he completed a diversion scheme in another state for a marijuana possession charge - would that impact on the chances of him being given a deferral in CA?

I believe he has two bites at the apple in CA, and I am not sure off hand if CA counts the out of state deferral as one against him. I'd look it up, b ut I am on a laptop waiting for a flight and don't quite have my usual quick resources saved on this computer.

This will also be his second 25662 charge in CA within the past year - any ideas on how seriously that will affect the whole situation?

A higher fine and possibly more community service, but nothing compared to the 11379 charge THAT is the offense that coul dsend him to prison if he does not make a deal. In fact, if that charge remains, he will not be eligible for diversion.

We are arranging an attorney before the detention hearing. He is currently sitting in a cell. And I hope that means something to him. (unfortunately with this kid you can't be 100% sure)

Obviously he failed to learn from his first bout with the law. Sadly, this may be his last chance to see daylight. i doubt that any future arrests will see any light at the end of the tunnel for him. He needs to work with his attorney and see if he can convince a prosecutor and then a court that he is a worthy candidate for diversion. This may not be easy.

Really? Thanks for the tip.

While it is rare to call a parent to the stand (and I have never seen it), it is possible. And if the DA hears that he has admitted his actions to you, you could find yourself subject to a subpoena. Any conversation she has must be between him and his attorney.

- Carl

 

[mich09]

I'd look it up, b ut I am on a laptop waiting for a flight and don't quite have my usual quick resources saved on this computer.

Well, you're a saint! I really appreciate this and the time you're giving.

THAT is the offense that coul dsend him to prison if he does not make a deal. In fact, if that charge remains, he will not be eligible for diversion.

"Prison", not "jail"? How much time could he be looking at? If this is reduced to possession then there may be a chance of diversion? (I'm sorry to bombard you with all these questions, this seems like a very long weekend and meeting with an attorney still seems far away)

Obviously he failed to learn from his first bout with the law.

That is his MO, yes. I think that my husband and I are slowly coming around to how serious this actually is. As a juvenile the court is going to want to know all about school and things aren't they ('things' like out of state status offending?), if they're considering him for diversion? I don't think it will be easy for him to convince them...if he is released to us at the detention hearing should we get him involved in drug programmes etc before any future court dates?

He's not our child, he's my husband's nephew. He came to us because he was beginning to head towards his last chance to see daylight at his mother's. His whole life has been a struggle to avoid this. We just try the best we can. (it doesn't bother me that he's in Juvenile Hall right now, and I don't think it will bother me a great deal if he's held a bit longer after the detention hearing, I don't want prison to be at the end of this though)

And though they are comparatively minor - does ownership of the pipe or alcohol need to be proven or can both boys be charged? I don't know if he ever claimed to own the pipe, or if it's his or not, and I don't know how they got the alcohol. According to police the alcohol was at his feet.

And I am assuming (and feeling quite ignorant of rights - this kid is my experience with the law) that anything related to consent to search is thrown out the window on the sighting of the pipe?

I have another question - about miranda rights - when do these need to be stated? His "they're for friends" statement was made after being detained but before being arrested. And was in response to questions being asked by the officer.

(I don't want him wriggle his way out of this, he needs serious consequences - but I want to make sure it's all kosher)

 

[CdwJava]

"Prison", not "jail"? How much time could he be looking at? If this is reduced to possession then there may be a chance of diversion? (I'm sorry to bombard you with all these questions, this seems like a very long weekend and meeting with an attorney still seems far away)

Sorry, I should have said "juvenile hall" for jail, and "California Youth Authority" for prison. In theory, he can go away for up to 9 years. However, since the county would have to pay the state for a good chunk of his incarceration, juvenile hall time and a lengthy probation and drug rehab would likely be the sentence. He will likely face frequent visits from police and probation officers during that time, have to take drug testing, drug treatment, possibly be subject to a curfew, be required to stay in school and maintain a specific grade level, etc.

That is his MO, yes. I think that my husband and I are slowly coming around to how serious this actually is. As a juvenile the court is going to want to know all about school and things aren't they ('things' like out of state status offending?),

Yes they will.

if he is released to us at the detention hearing should we get him involved in drug programmes etc before any future court dates?

I would. It is obvious he has a problem. Do not rely on the state to get him counseling or therapy for drugs, family problems, emotional issues, or whatever. He has committed a felony here, and his offenses are apparently getting more serious with time. He needs help.

He's not our child, he's my husband's nephew. He came to us because he was beginning to head towards his last chance to see daylight at his mother's. His whole life has been a struggle to avoid this. We just try the best we can. (it doesn't bother me that he's in Juvenile Hall right now, and I don't think it will bother me a great deal if he's held a bit longer after the detention hearing, I don't want prison to be at the end of this though)

As a foster parent myself, I understand and appreciate the ffort your making to help your nephew out. One day, maybe he, too, will understand this. In the meantime, a combination of tough love and accountability are what he might need to keep him alive (yes, 'alive' ... I've seen too many kids like him sink into the gutter and end up dead at a young age because of this life).

And though they are comparatively minor - does ownership of the pipe or alcohol need to be proven or can both boys be charged?

Both can be charged. Possession is a crime of knowledge and constructive control, not a crime of ownership.

And I am assuming (and feeling quite ignorant of rights - this kid is my experience with the law) that anything related to consent to search is thrown out the window on the sighting of the pipe?

Pretty much, yes. There are exceptions, but if the pipe was in plain view from where the officer was standing, that is effectively a green light to search further.

I have another question - about miranda rights - when do these need to be stated? His "they're for friends" statement was made after being detained but before being arrested. And was in response to questions being asked by the officer.

Miranda is required after the arrest and prior to questioning. An investigative detention is not generally sufficient to trigger Miranda. But, some judges might think it was. I am sure his attorney will explore that option, but I doubt it will go anywhere.


- Carl

 

[mich09]

juvenile hall time and a lengthy probation and drug rehab would likely be the sentence. He will likely face frequent visits from police and probation officers during that time, have to take drug testing, drug treatment, possibly be subject to a curfew, be required to stay in school and maintain a specific grade level, etc.

Ok, that sounds 'better'. Even 'great' given the circumstances. I think that would all do him well. He would find it heavy going I'm sure but....tough, I'm not bursting with sympathy.

I would. It is obvious he has a problem.

I think one of his main problems is that he's c*cky, reckless and all too willing to do something stupid without considering the consequences - he likes fun without responsibility. He's always been the kid who will start something. He thinks he's invincible and can get away with it. My husband and I were shocked at hearing that he was in possession of ecstasy, that it had gone on to that from marijuana. He does have family issues, in a family with grandparents who essentially want perfection he's the one who was born out of wedlock and whose dad took off (leaving him with a harsh disciplinarian stepfather which has not aided him a bit). As mad as I am at him at the moment, my heart aches for him. He's my southern gentleman, none of my kids ever said "yes ma'am" to me. But sorry, you're not Oprah, i'm getting off track here.

He has committed a felony here, and his offenses are apparently getting more serious with time. He needs help.

I agree completely.

One day, maybe he, too, will understand this. In the meantime, a combination of tough love and accountability are what he might need to keep him alive (yes, 'alive' ... I've seen too many kids like him sink into the gutter and end up dead at a young age because of this life).

I hope he'll understand one day too. We're trying hard with the tough love route, and I think that he respects us on some level for being fair with him (as opposed to other family members). He is usually respectful in talking to us (and in accepting the consequences we set down-he just doesnt learn from them!), we don't get the hell-raising fights, arguments and attitude that his mother got. (but when he leaves the house he's all too ready to party and fool around...he lets us down a lot). Yes, one of the reasons that it was decided to have him come to us was to keep him alive. He and his friends were doing some pretty stupid things. And he just didn't care. Well, when we went to see him in Juvenile Hall he was the most subdued I've ever seen him. He hates it in there (I hope he's been brought down to earth).

There are exceptions, but if the pipe was in plain view from where the officer was standing, that is effectively a green light to search further.

Yes, that's what I imagined.

But, some judges might think it was. I am sure his attorney will explore that option, but I doubt it will go anywhere.

He has said it's something to consider and will look into. We have met with the attorney. He wants to do all he can to get a possession charge. He has told us that realistically there are a number of things that may be raised at the detention hearing to have him detained. So,...we will see.

Carl, Thank you for all the time you've been taking to respond to my posts. And for not being judgemental at any point. This is an upsetting time and I really appreciate it.