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California Health and Safety Code § [Section] 11377(a) – Possession of Methamphetamine

California Health and Safety Code § [Section] 11377(a) – Possession of Methamphetamine

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Health and Safety Code [HSC] §11377(a)Possession of Methamphetamine – HSC §11377(a) makes it a crime to possess several different drugs, among them methamphetamine, although it does not punish possession for sale purposes. Possession may be excused if it is required by a physician of some kind.

Violation of HSC §11377(a) can result in a term of up to one year in a county jail and a fine of up to $1,000. If you're found guilty under this Section and you have a prior sex crime conviction or a conviction for committing a “serious” crime as defined in the Penal Code, however, you face a minimum of three years in a county jail and a fine of up to $10,000. Furthermore, since HSC §11377(a) is punished as part of California's “Three Strikes” sentencing regime, a conviction under HSC §11377(a) can result in a minimum of twenty-five years in a state prison if you have two previous “strikes” on your record. 

What Does Health and Safety Code §11377(a) [Possession of Methamphetamine] Prohibit?

In sum, to be guilty of Possession of Methamphetamine under HSC §11377(a), the prosecution must prove that:

  • You unlawfully possessed methamphetamine; AND,
  • You knew it was present; AND,
  • You knew it was a controlled substance; AND,
  • There was a usable amount.

Defining “Possession of Methamphetamine” Under Health and Safety Code §11377(a)

To convict you under HSC §11377(a), the prosecution must prove the following beyond a reasonable doubt:

  • Unlawfully Possessed: You unlawfully possessed[1] methamphetamine[2]; AND,
  • Knew/Presence: You knew of its presence; AND,
  • Knew/Nature or Character: You knew methamphetamine's nature or character as a controlled substance; AND,
  • Listed In The Schedules: Methamphetamine is listed in the schedules set forth in the Health and Safety Code[3]; AND,
  • A Usable Amount: The methamphetamine was in a usable amount.[4]

Note: You do not necessarily have control over an illegal substance merely by agreeing to purchase it.

Example: Defendant Dale is arrested for being drunk in public. His blood is tested at Hospital.  The blood work reveals that Dale has methamphetamine in his system. Prosecutor decides to charge Dale with violating HSC §11377(a) based on this evidence. Is Dale innocent of possessing methamphetamine?

Conclusion: Dale's blood test revealed methamphetamine, a controlled substance listed in the state Health and Safety Code schedules. It's also a drug he would know to be a controlled substance. These are the only elements of the offense present, however. “Possession” does not include having a substance in one's body. Thus Dale also couldn't have known of the drug's supposed “presence” at the time he ‘possessed' it. It is, finally, obvious that Dale did not possess a “usable amount” of the drug, since the methamphetamine was only in his blood. Dale should be acquitted of violating HSC §11377(a).  

Penalties For “Possession of Methamphetamines” Under Health and Safety Code §11377(a)

As noted previously, conviction under HSC §11377(a) carries a potential sentence of one (1) year in a county jail,[5] a fine of up to $1,000 (one-thousand dollars), or both a fine and imprisonment.[6] However, while a charge under this Section is ordinarily a Misdemeanor, you can be convicted of a Felony if you violate Section 11377(a) after committing a sex crime[7] or a “serious offense.”[8]

Additionally, since a violation of HSC §11377(a) is punishable as a part of California's “Three Strikes” system,[9] you can receive a “strike” for conviction under this Section. If you receive three such “strikes” you will spend a minimum of twenty-five (25) years in a state prison.[10]

Defenses To Possession of Methamphetamine Under HSC §11377(a)

Four common defenses against a charge of Possession of Methamphetamine under HSC §11377(a) are:

The Methamphetamine Wasn't Yours

Example: Thief steals Defendant Dee's backpack when she isn't looking and replaces Dee's backpack with an identical version. The backpack Thief takes has a sack lunch inside; the pack she leaves has a gram-sized vial of methamphetamine and a bundle of trash inside it. Dee takes the backpack without looking inside and only realizes she took someone else's bag when she's arrested later on an unrelated charge and police search her possessions. Dee is charged under §11377(a). Should she be convicted?   

Conclusion: Dee was in possession of a Schedule II drug prohibited by the Code Section. A gram is also enough methamphetamine to be used, considering that the drug is often sold in gram increments. However, without considering whether Dee was aware of the presence of the drug or whether she would've known of its character, Dee did not possess the drug willingly. In fact, considering that the backpack wasn't hers, Dee had no right to control the contents of the backpack. The drug was actually Thief's; Dee only secured some form of control over it because Thief tricked Dee into taking the wrong backpack. Therefore, while she was in possession of an illegal drug, Dee should be acquitted of violating HSC §11377(a) because the methamphetamine wasn't hers.      

You Had A Valid Prescription For The Methamphetamine

Example: Defendant Damian, an eighteen-year-old high school senior, is preparing to take the SAT   (Scholastic Aptitude Test). Damian also has concentration problems that have been identified as “ADHD” (Attention Deficit Hyperactivity Disorder[11]) by Doctor, a licensed physician. Doctor, knowing that Damian is taking the SAT, writes Damian a prescription for Desoxyn,[12] a form of methamphetamine used to treat ADHD. Doctor also advises Damian regarding the nature of the drug and its effects. Damian is arrested on an unrelated charge while on his way to the exam. Police find his bottle of Desoxyn and 100 pills. Damian isn't holding his prescription at the time. He's charged under HSC §11377(a). Is Damian guilty?

Conclusion: Damian was arrested while in knowing possession of a drug prohibited under §11377(a). He knew of the drug's nature because Doctor explained it to him. We can also assume Damian wouldn't need to ingest more than 100 pills for the Desoxyn to take effect; thus he possessed a usable amount. We can even assume that Damian was aware he had the bottle in his possession, as he was on his way to the exam for which he'd had the Desoxyn prescribed when he was arrested. But Damian had a valid prescription for the Desoxyn provided to him by Doctor, a physician with authority to recommend the drug. Thus Damian needs only to present proof of his legal right to possess Desoxyn and the drug charge should be withdrawn. He is innocent because he had a valid prescription for the methamphetamine.[13]    

The Statute Does Not Define What You Did As Illegal Possession

Example: Defendant Daniel has a job making late night prescription deliveries for Pharmacy if patients request delivery service. While Daniel drives his own, unmarked car, he usually brings identification, proof of employment, and a prescription record when working. But Daniel forgets to do so one night.  He is stopped for speeding. Officer spies a bag that contains a vial of prescription methamphetamines and demands that Daniel prove he has the right to possess the drug. Daniel swears that he's only in possession to deliver the drug and that he is doing so at the request of Prescription Holder. Officer charges Daniel under HSC §11377(a) nonetheless. Should he be convicted or acquitted of the charge?

Conclusion: Section 11377(a) permits possession of methamphetamine if the possession occurs “at the direction or with the express authorization of the prescription holder” and if the “sole intent of the possessor is to deliver the prescription to the prescription holder for its prescribed use or to discard the substance in a lawful manner.”[14] Both elements must be present if this defense is to be permissible. However, where both are, an accused person is excused from illegal possession charges. Turning to the facts, Daniel was only in possession of the methamphetamine in order to deliver it, which was his job. He did so only at the request of Prescription Holder, as delivery is a service Pharmacy provides when asked. These are the only elements required to plead for safe harbor under the statute's exception.  Thus Daniel should be acquitted because the statute does not define what he did as illegal possession.

You Were The Victim Of Illegal Police Conduct

Example:  Defendant Derek is arrested while driving under the influence of methamphetamine. His blood, tested at Precinct, provides physical proof. Arresting Officer, however, decides that he needs more evidence. He goes to Derek's apartment, where Derek lives alone, forces open the door, and searches without a warrant. Arresting Officer finds a half-a-gram of methamphetamine. He decides to add a charge of violating HSC §11377(a) against Derek and claims that he didn't need a warrant to enter Derek's home because the drugs he found were ‘an inevitable discovery.' Has Derek violated §11377(a)?     

Conclusion: There are multiple forms of misconduct in this fact pattern. Arresting Officer, first of all, did not need to seek evidence beyond what he already had in order to charge Derek with driving under the influence. He had no reason to be in Derek's home. This alone is misconduct. But he also searched the home without a warrant. This is a problem because Derek lived alone and was in police custody; there were no ‘exigent circumstances,' like the presence of a roommate who might destroy evidence or the threat of physical harm to the police, which might otherwise have justified the warrantless search. Thus Arresting Officer had no reason not to seek a warrant for the apartment search. Finally, while Arresting Officer wants the methamphetamine treated as the equivalent of evidence he would've found inevitably if performing a search of Derek's person, there was no reason for Arresting Officer to be in Derek's apartment in the first place. Thus there was nothing ‘inevitable' about the drug discovery - which would otherwise have permitted admitting the methamphetamine to be used as evidence against Derek in a trial without a warrant. Derek should be acquitted because he was the victim of illegal police conduct.

Related Offenses

Note: The crimes below are described as “related” because they're frequently charged with HSC §11377(a) and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

Included in the California Health and Safety Code are a number of offenses related to Possession of Methamphetamine: Possession for Sale of Controlled Substance - Persons Eligible For Sentencing Under CPC §1170(h) [HSC §11378], Sale, Transportation for Sale, etc., Of Controlled Substance (HSC §11379(a)), Possession Of Controlled Substance (HSC §11350(a)), Possession For Sale Of Controlled Substance (HSC §11351(a)), Sale, Transportation, etc., Of A Controlled Substance (HSC §11352(a)), Using Or Being Under The Influence Of Controlled Substance (HSC §11550), Manufacturing A Controlled Substance (HSC §11379.6(a)), Possession With Intent To Manufacture Methamphetamine Or N-ethylamphetamine (HSC §11383.5(a)), and Driving Under The Influence Of A Drug (California Vehicle Code [CVC] §23152(f)).

Possession for Sale of Controlled Substance - Persons Eligible For Sentencing Under CPC §1170(h)

Possession for Sale of Controlled Substance - Persons Eligible For Sentencing Under CPC §1170(h) [HSC §11378] calls for sentencing specified groups under California's “Three Strikes” system for selling or possessing certain drugs for sale. The statute creates five additional categories of offenders who are eligible for enhanced sentencing, including persons possessing for sale anything “classified in Schedule III, IV, or V [that] is not a narcotic drug.”[15]  

If you're convicted of violating HSC §11378, the penalty, without sentence enhancement, may be:

  • A term of up to three (3) years in a state prison;[16] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[17]

Note: Penalties for persons with more than one “strike” on their records are significantly more severe.[18]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and we guarantee it.

California Criminal Jury Instructions - Possession for Sale of Controlled Substance - Persons Eligible For Sentencing Under CPC §1170(h)

To convict you under HSC §11378, the prosecution must prove the following beyond a reasonable doubt:

You unlawfully possessed a controlled substance listed in the statute and knew of its presence. You also knew of the substance's nature or character as a controlled substance and you intended to sell it or that someone else sell it. The substance is listed in the schedules set forth in sections 11054 through 11058 of the Health and Safety Code or it was an analog of some type of controlled substance. The controlled substance was, finally, in a usable amount.

Example: Defendant Dallas, a pharmacist, occasionally takes drugs from Hospital, his employer, for his recreational use. Dallas is careful not to pilfer anything classified as a Schedule I or II drug or any well-known intoxicating substance. But, when he's arrested with ten stolen phenobarbital[19] pills, Dallas is charged with illegal possession of a drug in violation of HSC §11378. Police try to sentence Dallas and put a “strike” on his record. Dallas says he can't be convicted. Should he be acquitted on these facts?    

Conclusion: Dallas unlawfully possessed a Schedule IV non-narcotic drug[20] prohibited under §11378. He knowingly took the phenobarbital, we can assume, as he avoided stealing any drug that was well-known or listed in the primary schedules. Ten pills would likely qualify as a usable amount and Dallas likely also knew of the presence of the drug; the facts suggest nothing to the contrary. These are elements of the crime. The facts, however, say nothing about Dallas wanting to sell the drug. This is a critical element of the offense, if not the most important of all. Thus Dallas is correct. He can't be convicted under §11378. 

Sale, Transportation for Sale, etc., of Controlled Substance

The law prohibiting Sale, Transportation for Sale, etc., of Controlled Substance (HSC §11379(a)) applies whenever anyone actually transports, or arranges to transport, any of the drugs recited in the statute. This includes any controlled substance “classified in Schedule III, IV, or V” which isn't “a narcotic drug.”[21]

If you're convicted of Sale, Transportation for Sale, etc., of Controlled Substance, the penalty may be:

  • A term of up to four (4) years in a state prison;[22] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine.[23]

Note: Section 11379(a) also makes it illegal to sell, furnish, administer or give away banned substances or to offer to do any of these things. This Code Section is punished under the “Three Strikes” system.[24]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer – guaranteed.

California Criminal Jury Instructions - Sale, Transportation for Sale, etc., of Controlled Substance

To convict you under HSC §11379(a), the prosecution must prove the following beyond a reasonable doubt:

You transported for sale, or imported, a controlled substance. You knew of its presence and of the substance's nature or character as a controlled substance. The substance is listed in the schedules set forth in sections 11054 through 11058 of the Health and Safety Code or it was an analog of a controlled substance. The substance was, finally, in a usable amount.

Example: Defendant Deegan is released from jail having been convicted of selling illegal drugs. Deegan returns to the business but starts selling Didrex, a doctor-prescribed benzphetamine,[25]  because, as he concludes, “it's just a prescription diet drug, so it's just a little illegal,” if he's apprehended again. Deegan buys Didrex and takes it to Public Park to sell it. But Deegan finds himself charged with a violation of §11379(a) after he's arrested with thirty tablets that he tries to sell to Undercover Officer. Is Deegan guilty of the charge?    

Conclusion: Deegan was arrested while in possession of a usable amount of a drug listed as a Schedule III controlled substance in California.[26] Deegan transported the drug to Public Park for sales purposes. He tried to sell the benzphetamine to Undercover Officer; thus he knew the Didrex was present at the time of arrest. Deegan also indicated his awareness of the nature of the substance when he referred to it as “illegal.” Thirty tablets is, finally, a usable amount of any drug. Deegan, it follows, should be convicted.     

Possession Of Controlled Substance

Possession Of Controlled Substance (HSC §11350(a)) involves possessing any of the drugs listed in the statute without a valid prescription. You must know the drug is present and know of its nature as a controlled substance to violate the law. The drug must, finally, be in a usable amount.

Since you can be charged with a Misdemeanor or a Felony, depending on the facts of your case, Section 11350(a) is considered a “wobbler” offense.[27] If you're charged with the Felony form of the offense, the penalty, without enhancement, may be:

  • A term of up to three (3) years in a state prison;[28] OR,
  • A fine of up to $20,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[29]

More information can be found in the California Drug Possession Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer – and that is guaranteed.

California Criminal Jury Instructions - Possession Of Controlled Substance

To convict you under HSC §11350(a)), the prosecution must prove the following beyond a reasonable doubt:

You unlawfully possessed a controlled substance. You knew of its presence and of the substance's nature or character as a controlled substance. The substance is listed in the schedules set forth in sections 11054 through 11058 of the Health and Safety Code or it was an analog of a controlled substance. The substance was, finally, in a usable amount.

Example: An opioid addict, Defendant Devlin, is working towards recovery with the help of Physician. Devlin's therapy includes use of a drug called Buprenorphine[30] to ease withdrawal symptoms. Physician explains to Devlin the nature and effects of the drug at the time Physician prescribes the substance and tells Devlin to take one tablet per day. But Arresting Officer, who knows that the drug is a controlled substance, doesn't believe any of this when she pulls over Devlin's car on an unrelated charge and finds a Buprenorphine tablet in Devlin's front pocket. Devlin doesn't have his prescription at the time. She arrests Devlin. He's charged under §11350(a). Should Devlin be convicted or acquitted on these facts? 

Conclusion: Devlin was arrested while in possession of a substance listed as a Schedule V drug.[31] The facts do not suggest that Devlin was unaware of the presence of the tablets at the time of his arrest. Physician previously explained the nature of Buprenorphine to Devlin. He also prescribed one tablet per day, meaning that a single tablet was a usable amount. All these facts support Devlin's conviction. But HSC §11350(a) only criminalizes the possession of drugs classified as narcotics in the relevant Section.[32] Buprenorphine is actually an opioid. More important still is the fact that Devlin had a prescription to use Buprenorphine. This provides a statutory defense against illegal possession. Devlin should be acquitted.    

Possession For Sale Of Controlled Substance

Possession For Sale Of Controlled Substance (HSC §11351) occurs whenever anyone possesses or purchases for sale any of the drugs listed in the statute. The statute lists “any controlled substance classified in Schedule III, IV, or V which is a narcotic drug”[33] among several prohibited substances.

If you're convicted of Possession For Sale Of Controlled Substance, the penalty for each offense may be:

  • A term of up to four (4) years in a state prison;[34] OR,
  • A fine of up to $20,000 (twenty-thousand dollars); OR,
  • Both a fine and imprisonment.[35]

Note: This Section is also punishable under the “Three Strikes” system.[36]  

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that's guaranteed.

California Criminal Jury Instructions – Possession For Sale Of Controlled Substance

To convict you under HSC §11351, the prosecution must prove the following beyond a reasonable doubt:

You unlawfully possessed a controlled substance and knew of its presence. You also knew of the substance's nature or character as a controlled substance and, when you possessed the controlled substance, you intended to sell it or that someone else sell it. The controlled substance is listed in the schedules set forth in sections 11054 through 11058 of the Health and Safety Code or it was an analog of some type of controlled substance. The controlled substance was, finally, in a usable amount.

Example:  Defendant Danica, a Los Angeles resident, reads an article about the City of Oakland making psilocybin (“magic mushrooms”)[37] legal.[38] Delighted, she buys an eighth of an ounce of mushrooms from Supplier and goes to LA's Griffith Park, where she lays out the mushrooms by size on a picnic table. Danica is about to consume a mushroom when Officer approaches. Officer arrests Danica for violating HSC §11351. Danica insists that psilocybin is now perfectly legal in California. Should she be convicted?

Conclusion: Danica, unfortunately, is incorrect. The City of Oakland has declared that psilocybin will be legal within its borders. But Danica is in Los Angeles, where State law continues to dictate the legal status of ‘magic mushrooms.' Thus Danica was arrested while in unlawful possession of a Schedule I drug.[39] The psilocybin was also in a usable amount and Danica knew it was present when at the park. That Danica was wrong about the law, finally, doesn't excuse her act. But Danica didn't intend on selling the psilocybin nor did she intend on anyone else selling it. This is an element of the offense that the prosecution must plead and prove. If the State fails to prove even one element of any offense, the courts of this country require finding for the accused. Danica, it follows, should be acquitted of the charge even though she's incorrect about the legal status of psilocybin under State of California law.

Sale, Transportation, etc., Of A Controlled Substance

Sale, Transportation, etc., Of A Controlled Substance (HSC §11352(a)) involves transporting, or importing into the state for sale, any one of a significant list of drugs recited in the statute.[40] Simply attempting to import or transport drugs for sale is also punishable under subpart (a). The Code Section even describes administering or making an offer to administer a listed drug as a crime. Section 11352 differs from HSC §11351 in that §11352 addresses possession for sale in actual drug purchases, not just the intent to sell.

If you're convicted of Sale, Transportation, etc., Of A Controlled Substance, the penalty may be:

  • A term of up to five (5) years in a state prison;[41] OR,
  • A fine of up to $20,000 (twenty-thousand dollars); OR,
  • Both a fine and imprisonment.[42]

Note: “A person transports something if he or she carries or moves it from one location to another for sale, even if the distance is short.”[43] Section 11352 is punished as a part of California's “Three Strikes” sentencing system, furthermore.[44]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that's guaranteed.

California Criminal Jury Instructions - Sale, Transportation, etc., Of A Controlled Substance

To convict you under HSC §11352(a), the prosecution must prove the following beyond a reasonable doubt:

You sold, administered, or transported for sale or imported a controlled substance. You knew of its presence and its nature or character as a controlled substance. The substance was listed in sections 11054 through 11058 of the Health and Safety Code or it was an analog of such a substance. The controlled substance was, finally, in a usable amount.

Example: Defendant Demi is snorting cocaine[45] in her bathroom. Victim Veronica, her roommate, walks in, discovers Demi using the drug, and begins to berate her for using illegal drugs in their home. Demi, who has had this argument before and has grown tired of the criticism, takes in hand a line of cocaine and blows it into Veronica's face. Veronica inhales the cocaine and becomes furious. She calls the police and reports Demi for violating HSC §11352(a). When Demi is arrested she insists that she isn't guilty because she didn't sell the cocaine. Is Demi correct?

Conclusion: Cocaine (not cocaine base) is listed as a Schedule II drug.[46] A line of cocaine is enough to use since cocaine is often consumed in small amounts formed into lines. Demi also knew the drug's nature and character if only because Veronica railed at “her for using illegal drugs[.]” Demi obviously knew of the presence of the cocaine as well. The only question is whether blowing the powder in Veronica's face qualifies as criminal conduct under the statute. Section 11352(a) doesn't merely criminalize selling or importing controlled substances; it also makes it illegal to “administer” a drug prohibited by the statute. Causing a person to inhale a controlled substance is considered administration of a drug, according to the Criminal Jury Instructions.[47] Thus Demi didn't actually need to sell the cocaine to Veronica. But HSC §11352(a) criminalizes administration of a drug in connection with an actual drug purchase. Veronica didn't purchase a drug, nor did Demi intend on selling one. Thus, while elements of the offense are present, Demi should be acquitted simply because she was charged under an incorrect Code Section.[48]      

Using Or Being Under The Influence Of Controlled Substance

The crime of Using Or Being Under The Influence Of Controlled Substance (HSC §11550(a)) occurs when anyone consumes any of the drugs listed in the statute without a prescription. The statute references, among other controlled substances, narcotics “classified in Schedule III, IV, or V” drugs.[49]

If you're convicted of Using Or Being Under The Influence Of Controlled Substance, the penalty may be:

  • A term of up to one (1) year in a county jail; [50]OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment. [51]

Note:  “A violation of Health and Safety Code section 11550 […] requires [ ] ‘current use' or ‘use immediately prior to arrest,'” which has been interpreted as extending up to forty-eight hours.[52] You   are also eligible to receive as many as five years' Probation instead of imprisonment under this Section.[53]

More information can be found in the California Controlled Substance Lawyer section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that is a guarantee.

California Criminal Jury Instructions - Using Or Being Under The Influence Of Controlled Substance

To convict you under HSC §11550(a), the prosecution must prove the following beyond a reasonable doubt:

You willfully and unlawfully used a controlled substance listed in HSC §11550 a short time before your arrest or you were willfully and unlawfully under the influence of a controlled substance listed in HSC §11550 when you were arrested.

Example: Defendant Darrell, who is struggling with withdrawal symptoms as he weans himself off a narcotic, reads about the Tabernanthe iboga, a plant that produces a powder called Ibogaine.[54] The powder is said to help addicts struggling with withdrawal symptoms. Darrell acquires Ibogaine powder and takes it before leaving his home. He's arrested on an unrelated charge and reveals to Arresting Officer that he consumed the powder an hour before the arrest. Arresting Officer presses an additional charge of violating HSC §11550 against Darrell as a result. Ironically, Darrell says that he was only using the powder as part of a therapy directed at ending his use of drugs. Should Darrell be acquitted?       

Conclusion: Darrell willfully consumed a drug listed as a Schedule I controlled substance.[55] He did so only an hour before being confronted by Arresting Officer. These are elements of the offense. But Ibogaine is not one of the substances prohibited within Section 11550; thus, being under the influence of the drug isn't actually illegal under the Code Section. Thus Darrell should be acquitted of the charge even though he took a Schedule I drug shortly before his arrest.

Manufacturing A Controlled Substance

Manufacturing A Controlled Substance (HSC §11379.6(a)) when anyone “manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any” of the substances listed in the statute. The law specifies “any controlled substance specified in [HSC §§] 11054, 11055, 11056, 11057, or 11058.”[56]

If you're convicted of Manufacturing A Controlled Substance, the penalty may be:

  • A term of up to seven (7) years in a state prison; OR;
  • A fine of up to $50,000 (fifty-thousand dollars); OR,
  • Both a fine and imprisonment.[57]

Note: The prosecution does not need to prove that you “completed the process of manufacturing or producing a controlled substance. Rather,” the prosecution must prove that you “knowingly participated in the beginning or intermediate steps to process or make a controlled substance.”[58] Section 11376.9(a) is also punished under the state's “Three Strikes” system.[59]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that is a guarantee.

California Criminal Jury Instructions - Manufacturing A Controlled Substance

To convict you of violating HSC §11379.6(a), the prosecution must prove the following beyond a reasonable doubt:

You manufactured, compounded, converted, produced, derived, processed, or prepared a specific controlled substance using chemical extraction or independent chemical synthesis. You also knew of the substance's nature or character as a controlled substance.

Example: Defendant Devi is a chemistry student who finds herself in need of money. Friend, who wants to manufacture drugs for sale, offers Devi $50 to explain to her the chemical process behind MDMA (“Molly”)[60] and to show her how to use online informational resources used by chemists. Devi agrees, shows Friend what she wants to see, then tells her about the drug and takes the money. Devi is arrested a few weeks later after Friend is arrested and charged with Manufacturing A Controlled Substance. Police say Devi is Friend's partner and charge her under §11379.6(a) as well. Should Devi be convicted?

Conclusion: Without addressing whether Conspiracy charges are possible, Devi can only be accused of providing Friend with information on a drug Devi knew to be a controlled substance, since Devi didn't participate in generating the drug in any way. Devi, therefore, should be acquitted of the accusation.   

Possession With Intent To Manufacture Methamphetamine Or N-ethylamphetamine

The crime of Possession With Intent To Manufacture Methamphetamine Or N-ethylamphetamine (HSC §11383.5(a)) occurs if you possess either methylamine[61] or ethylamine[62] and phenyl-2-propanone[63] with the intent of manufacturing methamphetamine or the stimulant N-ethylamphetamine.[64] But you must possess both chemicals at the same time if you're to violate this Code Section.

If you're convicted of Possession With Intent To Manufacture Methamphetamine Or N-ethylamphetamine, the penalty may be:

  • A term of up to six (6) years in a state prison;[65] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[66]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that's always guaranteed.

California Criminal Jury Instructions - Possession With Intent To Manufacture Methamphetamine Or N-ethylamphetamine

To convict you under HSC §11383.5(a), the prosecution must prove the following beyond a reasonable doubt:

You possessed both methylamine and phenyl-2-propanone or ethylamine and phenyl-2-propanone at the same time and intended to use them to manufacture methamphetamine or N-ethylamphetamine.

Example: Defendant Deane uses phenyl-2-propanone and methylamine to produce methamphetamine. He sells the drug on the black market. Buyer, who is arrested after purchasing methamphetamine from Deane, tells police that Deane has the components to make the drug in his garage. Police raid Deane's home, find a gallon of methylamine, and arrest Deane for violating §11383.5(a). Should he be convicted?

Conclusion: Deane had methylamine in his garage and intended on manufacturing methamphetamine. These are elements of the crime. But Deane had to possess both methylamine and phenyl-2-proponane (with the required criminal intent) to violate the law. Deane, therefore, is not guilty of the charge even though he was in possession of a chemical component with the intent of producing methamphetamine.     

Driving Under The Influence Of A Drug

Driving Under The Influence Of A Drug (California Vehicle Code [CVC] §23152(f)) occurs whenever a person drives a motor vehicle while under the influence of a drug. You are considered to be “under the influence” if your “mental or physical abilities are so impaired that” you are “no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.” However, ”[t]he manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence.”[67]

If you're convicted of Driving Under The Influence Of A Drug, the penalty may be:

  • A term of up to six (6) months in a county jail; [68] OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.[69]

Note:  “It is not a defense that” you were “legally entitled to use the drug.” Also, “it is not a defense that something else [ ]impaired [your] ability to drive.”[70]

More information can be found in the California Driving Under The Influence Of Drugs Defense Attorneys section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and we guarantee it.

California Criminal Jury Instructions - Driving Under The Influence Of A Drug

To convict you under CVC §23152(f), the prosecution must prove the following beyond a reasonable doubt:

You drove a vehicle and, when you drove, you were under the influence of a drug.

Example: Defendant Danni goes to a party and takes three Oxycodone[71] pills. Finding that she's still intoxicated at the end of the evening, Danni goes to her car, puts her keys in the ignition and, feeling an overwhelming desire to sleep, slips quickly into unconsciousness. She awakens to the sound of Officer tapping on the driver's side window. Officer suspects that Danni is under the influence and arrests her. Later, when Danni's blood is drawn and tested, Danni is charged with violating §23152(f). Danni insists that she didn't break the law because she didn't drive her car. Is Danni correct about the accusation?  

Conclusion: Danni was in her car while under the influence of a substance categorized as a Schedule II drug.[72] The question is whether she drove merely by putting her keys in the ignition and sitting behind the wheel of her vehicle. In short, she did. California courts have concluded that being behind the wheel and putting one's keys in the ignition of one's car is an expression of the intent to drive. Thus, where an intoxicated person does these things, he or she can be convicted of driving under the influence without actually moving. Therefore, since she sat behind the wheel of her car and put the keys in the ignition while under the influence of a drug, Danni is incorrect. She should be convicted of violating §23152(f).  

What Can I Do If I'm Charged With Possession of Methamphetamine?

Bigstock beautiful young female call ce 237229156

The State of California regards Possession of Methamphetamine as a serious offense. If you're charged with Possession of Methamphetamine, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. 

If you or someone you know has been arrested or charged with Possession of Methamphetamine, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.                               

References

[1] “The People do not need to prove that [ ] [you] knew which specific controlled substance [you] possessed. [¶]  Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something, to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.” See California Criminal Jury Instructions 2304 (CALCRIM) (2017).           

[2] See “Methamphetamine” at Wikipedia.org.

[3] See HSC §11055 (d) (2).

[4] Any “usable amount is a quantity that is enough to be used by someone[.] […] Useless traces or debris are not usable… On the other hand, a usable amount” doesn't have to be enough “in either amount or strength, to affect the user.” See California Criminal Jury Instructions 2304 (CALCRIM) (2017).

[5] See HSC §11377 (a).

[6] See California Penal Code (CPC) §672.

[7] See CPC §290 (c). [Amended as amended by Stats. 2017, Ch. 541, Sec. 1.5 by Stats. 2018, Ch. 423, Sec. 51. (SB 1494) Effective January 1, 2019.]   

[8] See CPC §667 (e) (2) (C) (iv) (I) – (VIII).

[9] See CPC §1170 (h). [Amended as amended by Stats. 2018, Ch. 36, Sec. 17 by Stats. 2018, Ch. 1001, Sec. 1. (AB 2942) Effective January 1, 2019.]  

[10] See CPC §667 (e) (2) (A) (ii).

[11] See “Attention Deficit Hyperactivity Disorder” at National Institute of Mental Health (NIH).

[12] See “Desoxyn” at Psychology.wikia.org.

[13] The prosecution has “the burden of proving beyond a reasonable doubt that” you “did not have a valid prescription.” See California Criminal Jury Instructions 2304 (CALCRIM) (2017).

[14] See HSC §11377 (c) (1)-(2)

[15] See HSC §11378 (1).

[16] See Endnote 9.

[17] See Endnote 6. 

[18] See Endnote 10.

[19] See “Phenobarbital” at Wikipedia.org.  

[20] See HSC §11057 (d) (26).

[21] See HSC §11379 (a) (1).

[22] See HSC §11379 (a).

[23] See Endnote 6. 

[24] See Endnote 9.

[25] See “Benzphetamine” at Wikipedia.org.

[26] See HSC §11056 (b) (2).

[27] See “Wobbler” definition at USLegal.com.  

[28] See Endnote 9.

[29] See HSC §11372 (a).

[30] See “Buprenorphine” at Wikipedia.org.

[31] See HSC §11058 (d).

[32] See HSC §11350 (a) (2).

[33] See HSC §11351 (2).  

[34] See HSC §11351.

[35] See Endnote 29.

[36] See Endnote 9.

[37] See “Psilocybin mushroom” at Wikipedia.org.

[38] See “NorCal City of Oakland Decriminalizes Psilocybin” by Helen Christophi. Courthouse News Service, June 5, 2019.

[39]  See HSC §11504 (d) (18).

[40] The statute references, for example, “any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055,” among other drugs. See HSC §11352 (a).

[41] See HSC §11352 (a).

[42] See Endnote 29.

[43] See California Criminal Jury Instructions 2300 (CALCRIM) (2017).

[44] See Endnote 9.

[45] See “Cocaine” at Wikipedia.org.

[46] See HSC §11055 (b) (6).

[47] See Endnote 43. 

[48] Demi should probably be charged under HSC §11350 (a) instead.

[49] See HSC §11550 (a) (2).

[50] See HSC §11550 (a).

[51] See Endnote 6.

[52] See “Bench Notes,” California Criminal Jury Instructions 2400 (CALCRIM) (2017).

[53] See Endnote 50.

[54] See “Ibogaine” at Wikipedia.org.

[55] See HSC §11054 (d) (11).

[56] See HSC §11379.6 (a).

[57] See above.

[58] See California Criminal Jury Instructions 2330 (CALCRIM) (2017).

[59] See Endnote 9.

[60] See “MDMA” at Wikipedia.org.

[61] See “Methylamine” at Wikipedia.org.  

[62] See “Ethylamine” at Wikipedia.org.  

[63] See “Phenylacetone” at Wikipedia.org.   

[64] See “Etilafetamine” at Wikipedia.org.   

[65] See HSC §11383.5 (a).  

[66] See Endnote 6.   

[67] See California Criminal Jury Instructions 2110 (CALCRIM) (2017).  

[68] See CPC §19.

[69] See Endnote 6.

[70] See Endnote 67.

[71] See “Oxycodone” at Wikipedia.org.

[72] See HSC §11055 (b) (1) (M).

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