People v. Ormiston, 105 Cal.App.4th 676 (Cal. Ct. App. Jan. 22, 2003) (California Penal Code 11379, transportation of drugs, can be violated by carrying drugs across a parking lot for personal use).      In People v. Ormiston, 105 Cal.App.4th 676 (Cal. Ct. App. 2003), the California Appellate Court held that the offense of transportation of drugs under California Penal Code 11379, may be committed by walking (across a parking lot). Looking to legislative history and prior caselaw, the court determined that Penal Code 11379 prohibited any volitional transportation of an illicit drug from one location to another, regardless of whether such transportation occurs by use of a motor vehicle, or by walking, and regardless of distance. Id. at 682-686. The offense was limited by the court only so much as walking from one place in a single residence to another would not violate the statute, as such movement would not be, "from one location to another." Id. at 685-686.      The statute may also be violated, "without regard to the particular purpose for which the transportation was provided." People v. Rodgers, 5 Cal.3d 129 (Cal. 1971). The court found the legislative purpose of the statute to include reducing, and inhibiting personal drug use. Id. at 685.      To qualify as an aggravated felony drug offense, a conviction must either be punishable under one of the three listed federal statutes, or must be a felony offense that involves illicit trafficking in a controlled substance.      The generic definition of "trafficking" is "the unlawful trading or dealing of any controlled substance." Matter of Davis, 20 I. & N. Dec. 536, 541 (BIA 1992). The Board of Immigration Appeals has explained that the concept of "trafficking" includes, at its essence, a "business or merchant nature, the trading or dealing in goods." Ibid. Simple possession or transfer without consideration are not included in the definition. Ibid. Additionally, transportation of drugs, not across state boarders, is not an offense punishable under federal law.      A violation of Penal Code 11379, because it includes transportation for personal use, should not constitute an aggravated felony since (a) it does not fall within the common-sense definition of commercial trafficking, and (b) the offense does not fall within the alternate definition because the offense is not a violation of any of the three listed statutes.

jurisdiction: 
Lower Courts of Ninth Circuit

 

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