Bill revises law against 'transporting' pot

This 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 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 that possession of over an ounce of marijuana 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 substances for personal use. People v. Rogers, 5 Cal. 3d 129, 134-35 (1971).

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.