Dying to get high — Part Five

Publisher’s note: Lassen News asked Lassen County District Attorney Susan Rios about fentanyl cases in the Lassen County Superior Court. This is her response to our question.

Melissa Rios, Lassen County District Attorney

Controlled substance cases, including fentanyl, are broken down in three ways: transportation for sale, possessing for sale and possessing for personal use.  Transportation of fentanyl for purposes of sale is a crime under CA Health & Safety Code section 11352(a) and (b).  Under (a), a person within the county transporting fentanyl for the specific purpose of sale is punishable by either 3, 4, or 5 years in “local prison” – so county jail — or can receive what we call a “split sentence” where they serve a period of incarceration and then a period of formal supervision. Under (b), if a person is transporting fentanyl from a “non-contiguous” county (meaning, a county that doesn’t touch our boundaries – think bringing a substance up from Sacramento to here), the penalty increases to 3, 6, or 9 years, again in county jail or on a split sentence.

Possession of fentanyl for purposes of sale (separate from the transportation of) is a crime under CA Health Safety Code section 11351.  It is punishable by either 2, 3, or 4 years in county jail, the same as above.

These offenses were included in AB 109 that took effect in October 2011, so offenders do not go to state prison for a conviction of this crime. Additionally, the legislature amended California’s sentencing scheme found in Penal Code section 1170 and now judges can no longer impose the maximum term absent very specific “aggravating factors” listed both in the Penal Code and as well in the California Rules of Court, that have to be pled and proven.  If none of the certain aggravating factors apply, then the maximum a judge can now sentence someone to (for almost any crime, not just controlled substances) is the middle term. So, in the information above, the maximum term of confinement for a conviction of 11352(b) would not be 9 years but would be 6 years; the court could not sentence someone to 9 years unless the aggravating factors exist and are proven or admitted to by the defendant.  The amount of fentanyl is not an aggravating factor, although it can be considered in denying probation.

There are some enhancements that can add to the penalties and each sales case is evaluated to see if those enhancements apply.

Possession for personal use is a misdemeanor, punishable by up to 1 year in the county jail, except, if an accused qualifies for deferred entry of judgment under Penal Code section 1000 they have to be diverted into a treatment plan and cannot be sentenced to custody time unless they either don’t qualify for diversion (if they have a felony conviction in the last 5 years) or they opt out of diversion and agree to just serve their jail time. Possession for personal use used to be a felony but was changed by the voters in Prop 47 back in 2015. However, if the accused is a registered sex offender, he or she can still be charged with a felony for personal possession.

Here’s some local info for you
I ran referrals from Jan. 1, 2019 to Oct. 13, 2023 for the number of fentanyl cases. Our office did not start seeing referrals for fentanyl cases until June 2022.  Our first sales case was referred in August 2022 (People v. Kenneth Owens, 22-CR0089152) and it was alleged Owens had 246.5 grams of fentanyl that he was transporting for sales. His case was adjudicated for a state prison term because he also had a firearm which exempted him from local prison. His was the first case we alleged what is known as a “Watson” advisement, commonly given in DUI cases, that provides as a notice to a person convicted of a fentanyl sales case that the selling, furnishing or otherwise administering of fentanyl is inherently dangerous to human life and if they continue to engage in that conduct and someone dies as a result, they can be charged with murder.

Since the Owens case, our office has received and filed eight other fentanyl sales cases. Of those eight, three have sentenced, one is in custody with his case set for trial in December, two are in custody with ongoing court dates, one is out of custody and is currently in rehab, but his case is active, and one defendant has since passed away, so that case was dismissed. The amounts of fentanyl we are seeing in these sales cases vary anywhere from 17 grams all the way up to two pounds (just under one kilo). All charging documents provide the “Watson” advisement, and we are requiring the defendants to acknowledge this on the record at time of either entry of plea or at sentencing.

The other fentanyl cases we received were misdemeanor possession for personal use cases. Not all of those were picked up for criminal filings.

Sometimes the substance is believed to be fentanyl but was either a minute amount not enough to be tested or for officer safety was not field tested and therefore no criminal charges could be brought (we have to be able to prove the substance is what we are alleging it to be).

Some of the individuals had other cases or more serious counts, and so our office opted to pursue the other charges.

Some of the individuals were on active parole or probation and we opted to proceed by way of probation violation rather than file new charges as the required evidentiary showing is lower.

The other cases that were filed, a determination was made if they were eligible for statutory diversion as required by Penal Code section 1000 or they could decline treatment/diversion and just serve custody time.

This information is specific to cases referred for criminal charges. It in no way reflects the number of cases law enforcement may be responding to for medical services or coroner’s cases, and I would refer you to the respective agencies (sheriff or police department) for that information.