California Laws Manufacturing of Drugs & Narcotics
Health & Safety Code Section 11379.6 HS

In its simplest terms, California Health and Safety Code 11379.6 HS prohibits illegally manufacturing drugs, narcotics or controlled substances.  More specifically, it prohibits engaging in...or even offering to engage in...any activity that lends itself to the process of manufacturing illegal substances.1

This means that if you knowingly participate in any of the initial or intermediate steps that are involved in processing a drug, you could be liable for this offense.2

Examples

Some typical examples of manufacturing narcotics include

  • operating a methamphetamine "meth" lab or
  • mixing "precursor" chemicals that are used to make other narcotics.
Defenses

There are a number of legal defenses that apply to Health and Safety Code 11379.6 HS California's law against manufacturing drugs / narcotics.  Some of the most common include

  • your acts were merely preparatory,
  • the drug lab was discovered pursuant to an illegal search and seizure,
  • you were simply in the wrong place at the wrong time and had nothing to do with the illegal activity that was taking place, and
  • you were the victim of mistaken identity and/or false accusations.
Penalties

Health and Safety Code 11379.6 HS California's law against manufacturing controlled subsatnces is a felony, punishable by three, five or seven years in county jail and a maximum fine of $50,000.3

Offering to manufacture drugs is also a felony, subjecting you to a sentence of three, four or five years.4

If children reside in, are present in or are harmed in the location where you manufacture narcotics, you will face an additional and consecutive term of up to five years.

And you could face even longer prison sentences if you

  • are convicted of manufacturing a large quantity a substance that contains PCP, methamphetamines, or GHB,
  • are convicted of manufacturing meth or PCP and you cause another person to suffer great bodily injury or death,
  • have certain drug-related prior convictions, or
  • are involved in activity that triggers other related offenses.

In this article, our California criminal defense attorneys5 will explain California's laws against manufacturing narcotics by addressing the following:

1. California Health
and Safety Code 11379.6 HS
2. Legal Defenses

2.1. Your acts were merely preparatory

2.2. Illegal search and seizure

2.3. Wrong place, wrong time

2.4. Mistaken identity/false accusations

3. Penalties, Punishment and Sentencing

3.1. Regarding large quantities

3.2. Injury or death

3.3. Manufacturing narcotics in the presence of children

3.4. Prior drug-related convictions

3.5. Drug diversion

4. Related Offenses

4.1. Health and Safety Code 11350 HS -- possession of a controlled substance & Health and Safety Code 11377 HS -- possession of methamphetamines

4.2. Health and Safety Code 11351 HS -- possession of a controlled substance for sale

4.3. Health and Safety Code 11352 HS -- transporting or selling a controlled substance

4.4. Health and Safety Code 11550 HS -- being under the influence of a controlled substance

4.5. California's law against possessing
drug paraphernalia

4.6. Health and Safety Code 11366.5 -- allowing others to manufacture narcotics in your home or
other structure

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on California Drug Crimes; Health and Safety Code 11350 HS California's Law Against Possession of a Controlled Substance; Health and Safety Code 11351 HS California's Law Against Possession of a Controlled Substance for Sale; Health and Safety Code 11352 HS California's Law Against Transporting or Selling a Controlled Substance; Health and Safety Code 11377 California's Law Against Possession of Methamphetamines; California Clandestine Methamphetamine Laboratories; Health and Safety Code 11550 HS California's "Under the Influence of a Controlled Substance" Law; Health and Safety Code 11364 HS California's Laws Against Possession of Drug Paraphernalia; California Cocaine Laws; California Heroin Laws; California Gamma-Hydroxybutyric Acid "GHB" Laws; California Phencyclidine "PCP" Laws; California's Marijuana Laws; California Ketamine Laws; California Codeine Laws; California Hydrocodone "Vicodin" Laws; California Legal Defenses; California's Search and Seizure Laws; California's Entrapment Laws; Mistaken Identity; Wobblers; Misdemeanors; Felonies; Great Bodily Injury under California Law; California's Conspiracy Law; California's Laws Against Aiding and Abetting; California Laws Regarding Police and Private Informants; Probable Cause; California Search Warrants; Proposition 36; Penal Code 1000 PC Drug Diversion; and California Drug Courts.

1. California Health and Safety Code 11379.6 HS

California Health and Safety Code 11379.6 HS prohibits illegally manufacturing narcotics.  Specifically, it prohibits

  • manufacturing,
  • compounding,
  • converting,
  • producing,
  • deriving,
  • processing,
  • preparing...
  • or offering to engage in any of these acts with respect to...

any controlled substance specified in Health and Safety Code Sections 11054 - 11058 HS.6

A "controlled substance" is one whose manufacture, possession and use are regulated by the government under the United States "Controlled Substances Act".  Some commonly manufactured controlled substances include (but are not limited to):

It is important to note that you can violate California's law against manufacturing narcotics even if you don't necessarily complete the manufacturing process.  This California drug crime is complete as soon as you knowingly participate in the initial or intermediate steps that are involved in processing a drug.7

Example:  An angry girlfriend brings the police to her boyfriend's house where the boyfriend is manufacturing drugs in the garage.  The police find thousands of dollars in cash, a book entitled "Secrets of Methamphetamine Manufacture," the strong odor of chemicals in the garage and a variety of glassware, beakers, pumps, hoses and plastic tubing along with $21,000 to $56,000 worth of piperidine, a chemical which has legitimate uses but is also a precursor to the manufacture of PCP.
The defendant is arrested for and convicted of manufacturing narcotics.  He argues that the conviction should be reversed because the evidence is insufficient to support the claim that he manufactured PCP. Rather, he contends that the evidence only supported the fact that he was engaged in the manufacture of piperidine, which has legitimate uses.
The court disagreed and upheld the conviction, stating that the fact that the defendant was engaged in the manufacture of piperidine is but one link in the chain establishing that the defendant was engaged in the manufacture of PCP.  It went on to note that "Chemicals used to manufacture both piperidine and PCP were found in the garage. Specifically, the evidence established that after piperidine, which is not readily obtainable on the streets, is produced, sodium hydroxide, which was found in the garage laboratory, is added in the final mixing to form PCP. Based on these facts, the jury was entitled to infer that appellant was manufacturing piperidine with the goal of producing PCP as the end product."8

To sum up, this means that Health and Safety Code 11379.6 HS prohibits engaging in the synthesis, processing or preparation of a chemical used in the manufacturing of drugs even if the chemical is not itself a controlled substance when you know that the chemical is a logical precursor to manufacture a controlled substance.9

That said, merely preparing to manufacture drugs is not in itself enough to convict you of manufacturing drugs, which brings us to the next section...

2. Legal Defenses

Fortunately, there are a variety of California legal defenses that are applicable to a manufacturing narcotics charge that a skilled California drug crimes defense attorney can present on your behalf.  Below are some of the most common.

2.1. Your acts were merely preparatory

Even if you had every intention of manufacturing a drug...but only prepare to do so...you have not committed a crime.  Until and unless you commit an overt act in furtherance of manufacturing narcotics, you don't violate Health and Safety Code 11379.6.

Example:  Defendant is caught driving with a variety of items that are used to manufacture "hashish," a resin derived from marijuana.  In fact, the only item missing was the marijuana itself.  The defendant admits he purchased the items in order to "make hash" but decided not to purchase the marijuana after acquiring the equipment because he knew it was "a poor decision".  The jury convicts him of attempting to manufacture a controlled substance.
The appellate court reverses the conviction, stating that despite the fact that the defendant's intent was clear, possessing the equipment was still merely preparatory.  At the time the police discovered the equipment, the defendant had no ability to manufacture "hash" since (1) he had not yet assembled the equipment, and (2) he did not have on hand a necessary ingredient, the marijuana.
As the court explains, "In reviewing the record in this case, we find no act...not even a slight act...on the part of appellant that goes beyond preparation and can be regarded as an unequivocal overt act which can be said to be a commencement of the commission of the intended crime."10

And the fact is that it may be difficult to decipher whether you (a) merely prepared to manufacture drugs or whether you (b) attempted to manufacture drugs and were simply prevented from doing so by an intervening source.

But as Rancho Cucamonga criminal defense attorney Michael Scafiddi11 explains, "A good defense lawyer will make the case that your actions amounted to mere preparation, not attempted manufacturing of drugs. Mere preparation does not warrant a conviction. But even if the court finds that you attempted to manufacture drugs, you would still only face half of the sentence you would otherwise face for actually manufacturing drugs under
California's laws regarding attempted crimes."12

2.2. Illegal search and seizure

Regardless of whether you are actively manufacturing narcotics in violation of Health and Safety Code 11379.6 HS, if the police arrest you in violation of California's search and seizure laws your charges should be dismissed.

This means that if the police enter the property where you are allegedly manufacturing drugs

  1. without a valid California search warrant,
  2. without probable cause, or
  3. search an area that is beyond that which is identified in the warrant,

California law provides that any evidence that is illegally obtained must be excluded from your case.  The practical effect is that your charges will be significantly reduced if not entirely dismissed.

2.3. Wrong place, wrong time

A clandestine drug lab is also commonly a place where known drug users may go to buy and/or use drugs. Consequently there are often people who may not have anything to do with manufacturing drugs, who happen to be present at the time when the police search the premises.  These individuals may be liable for use and/or possession (discussed in more detail in Section 4. Related Offenses). But even so, these are far less serious charges than manufacturing.

And because clandestine drug labs are often in locked garages, mobile homes, sheds, etc., it may be the case that someone living on the property isn't even aware that drug manufacturing is taking place on the premises.

If you are arrested for manufacturing narcotics...but were simply in the wrong place at the wrong time and were not involved in the alleged crime...we can help.  As former prosecutors and police investigators, we know the most effective strategies to convince prosecutors, judges and jurors that you are not the person who should be prosecuted.

2.4. Mistaken identity/false arrest

On a similar note, if you are falsely accused of manufacturing drugs or are the victim of mistaken identity, our firm will conduct a thorough investigation to prove your innocence and clear your name.

We know that there are an infinite number of reasons that cause innocent people falsely to be accused of and arrested for California drug crimes, such as

  • a false accusation based on revenge or anger or a desire to escape one's own criminal culpability,
  • mistaken eyewitness identification, and/or
  • the fact that the information supplied to the court to obtain a warrant was provided by an unreliable police or private informant.

A good criminal defense lawyer will explore all these factors as means of exonerating his or her client.

3. Penalties, Punishment and Sentencing

Generally speaking, Health and Safety Code 11379.6 HS California's law against manufacturing narcotics is a felony, punishable by three, five or seven years in the California state prison and a maximum fine of $50,000.13 However, at sentencing a judge could decide to impose probation (and up to a year of county jail) in lieu of state prison time.

If you are convicted of offering to manufacture drugs, you face a felony, punishable either (a) by probation and up to one year of jail time, or (b) by three, four or five years in jail.14

In addition, there are a number of statutory aggravating factors that could trigger even lengthier sentences.  These include (1) manufacturing large quantities of certain drugs, (2) causing death or injury, (3) manufacturing narcotics in the presence of children, and (4) having certain prior drug-related convictions.

3.1. Regarding large quantities

If you are convicted of manufacturing (or of conspiring to manufacture) a substance that contains

  • PCP,
  • methamphetamines, and/or
  • GHB...

you face the following additional and consecutive terms if that substance exceeds the volumes below:

  • three years where the substance exceeds three gallons of liquid by volume or one pound of solid by weight,
  • five years if the substance exceeds ten gallons liquid/three pounds of solid,
  • ten years if the substance exceeds 25 gallons liquid/ten pounds of solid, and
  • fifteen years if the substance exceeds 105 gallons liquid/44 pounds of solid.15

3.2. Injury or death

If you are convicted of manufacturing meth or PCP...or of attempting to manufacture either of those drugs...and the offense causes the death or great bodily injury of another person other than an accomplice, you face an additional and consecutive one year sentence in the California state prison for each death or injury.16

3.3. Manufacturing narcotics in the presence of children

If you are convicted of manufacturing methamphetamines...and a child under 16 resided in the structure where the violation took place...the court will likely order you to serve one of the longer sentences.17

If you are convicted of manufacturing or of attempting to manufacture methamphetamines or PCP...and a child under 16 years was present during the violation...you face two years in the state prison in addition and consecutive to the term you received for the underlying violation.18

And if a child under 16 suffered a great bodily injury as defined under California law, you face a five-year prison term in addition and consecutive to the term you received for the underlying violation.19

3.4. Prior drug-related convictions

If you are convicted of manufacturing narcotics or of conspiring to manufacture drugs...and have a prior conviction for a variety of drug-related offenses, such as

  • Health and Safety Code 11351 HS California's law against possessing a controlled substance for sale,
  • Health and Safety Code 11352 HS California's law against transporting or selling a controlled substance, and
  • Health and Safety Code sections 11378 and 11379 HS California's laws against possessing or selling methamphetamines ...

you face a consecutive and additional three-year sentence for each prior felony conviction, even if the prior conviction did not result in a prison term.20

3.5. Drug diversion

"Drug diversion" is an alternative sentencing option that allows a nonviolent drug offender to receive drug treatment in lieu of a jail or prison sentence.  California's drug diversion programs include

The advantage of drug diversion is that if you successfully complete the program, you can avoid custody time and your drug charges will likely be dismissed.  However, drug diversion is not offered to everyone and, in fact, has a number of limitations.

The biggest hurdle is that the offense has to be connected to simple possession of a drug for personal use.  If you attorney can convince the prosecutor

  1. that you were only manufacturing narcotics for your own personal use...as opposed to for sale...or
  2. to allow you to plea bargain for a lesser offense of simple possession,

you may be able to participate in one of the drug diversion programs listed above.

4. Related Offenses

There are a number of crimes that are closely related to manufacturing drugs / narcotics, either because they are charged in connection with or in lieu of this offense.  Some of the most common include (but are not limited to):

4.1. Health and Safety Code 11350 HS -- possession of a controlled substance & Health and Safety Code 11377 HS -- possession of methamphetamines

Health and Safety Code 11350 HS California's law against possession of a controlled substance makes it a felony to possess a variety of controlled substances such as

when they are not lawfully prescribed. 23 This law is virtually identical to Health and Safety Code 11377 California's law against possession of methamphetamines except that HS 11350 applies to a wider range of narcotics.24 Both laws are referred to as "simple" possession laws because they address possession for personal use rather than possession for sales.

HS 11350 is a felony, punishable by up to three years in county jail, whereas HS 11377 is what is known as a California wobbler offense. A "wobbler" is a crime that the prosecution may choose to file as either a misdemeanor or a felony, depending on

  1. the facts of your case, and
  2. your criminal history.

If convicted of the California misdemeanor offense, you face up to one year in a county jail and a maximum $1,000 fine. If convicted of the felony, you face:

  • probation and up to one year in county jail, or
  • 16 months, or two, or three years in jail

and/or

  • a fine of up to $10,000.

That said, most people convicted of simple possession are allowed to participate in drug diversion.

Possessing a small amount of any of these drugs at the time you are alleged to be manufacturing others would most likely cause prosecutors to charge you with manufacturing and simple possession.

However, if you are caught possessing a larger quantity of a drug, you will more likely be charged with possession for sales, described below.

4.2. Health and Safety Code 11351 HS -- possession of a controlled substance
for sale

Health and Safety Code 11351 HS California's law against possessing a controlled substance for sale also applies to the types of drugs listed above.  However, this offense is considered much more serious, as it involves possessing narcotics that you intend to sell to other people.

If you possess more than a small amount of drugs at the time you are discovered manufacturing drugs, prosecutors will probably charge you with both manufacturing narcotics and possession for sales.Possession for sales is a felony, subjecting you to:

  • probation and up to one year in county jail, or
  • two, three, or four years in jail.25

If convicted of this offense, you will not be permitted to participate in drug diversion.

4.3. Health and Safety Code 11352 HS -- transporting or selling a controlled substance

Health and Safety Code 11352 HS California's law against transporting or selling controlled substances prohibits selling, furnishing, administering, giving away or transporting illegal narcotics.  Generally speaking, these types of arrests arise out of undercover sting operations in which a decoy officer engages in a "controlled buy."  Sometimes these stings run afoul of California entrapment laws and should be dismissed for that reason.

With respect to a manufacturing charge, if you are engaging in any of these prohibited activities while you are also manufacturing drugs, prosecutors will likely charge you with both crimes.  HS 11352 is a felony, subjecting you up to:

  • probation and up to one year in county jail, or
  • three, four or five years in jail, or
  • three, six or nine years in jail if you move the drugs across more than two county lines.26

4.4. Health and Safety Code 11550 HS -- being under the influence of a
controlled substance

Health and Safety Code 11550 HS California's "being under the influence of a controlled substance law" prohibits just that - being under the influence of a controlled substance "in any detectable manner."  If...at the time the police discover that you are manufacturing narcotics you are also under their influence...prosecutors will likely charge you with both offenses.

A conviction for this misdemeanor drug offense subjects you to a mandatory minimum of 90 days in jail.  However, most people who are charged with this offense qualify for drug diversion.

That said, if you are charged with HS 11550 in connection with a manufacturing charge, you will not qualify for drug diversion unless your criminal defense attorney can convince the prosecutor to dismiss the manufacturing charge as part of a plea bargain.27

4.5. California's law against possessing drug paraphernalia

Health & Safety Code 11364 California's law against possessing drug paraphernalia makes it a misdemeanor to possess "an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance."  This includes hypodermic needles, pipes, bongs and cocaine spoons.28

The key here is that the type of paraphernalia prohibited by this law is that used for consuming drugs.  The equipment used to manufacture narcotics is usually different.  However, if the police arrest you for manufacturing and also find you with paraphernalia used to ingest or otherwise consume drugs, you could face prosecution for both offenses.

A conviction for 11364 HS carries up to six months in the county jail. But this offense, too, usually qualifies for a diversion program when charged by itself.

4.6. Health and Safety Code 11366.5 -- allowing others to manufacture narcotics in your home or other structure

Health and Safety Code 11366.5 HS punishes an individual who has under his/her management or control any building, room, space, etc. and knowingly

  1. allows another person to manufacture, store, sell or otherwise distribute any controlled substance in that space, and/or
  2. allows the space to be equipped in such as manner so as to prevent the police from entering in order to further the sale of certain prohibited drugs and who receives profits that substantially exceed fair market value for doing so.

A violation of the first subsection is a wobbler.

If charged as a felony, it carries a sentence of:

  • up to one year in county jail.

As a felony, it can be punished by:

  • 16 months, or two or three years in county jail.

A violation of the second subsection is always a felony, punishable by a jail sentence of two, three or four years.29

And on a related note, if you are subject to prosecution for this law or are otherwise involved in manufacturing narcotics, for example, by

  • cooking the drugs,
  • mixing the drugs,
  • buying the equipment,
  • etc.,

you may face additional charges under California's conspiracy laws or under California's aiding and abetting laws.30

Call us for help...
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If you or loved one is charged with Health & Safety Code Section 11379.6 HS drug manufacturing and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's drug crimes.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.31

Legal References:

1 California Health and Safety Code 11379.6 HS - Manufacturing narcotics.  ("(a) Except as otherwise provided by law, every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, five, or seven years and by a fine not exceeding fifty thousand dollars ($50,000). (b) Except when an enhancement pursuant to Section 11379.7 is pled and proved, the fact that a person under 16 years of age resided in a structure in which a violation of this section involving methamphetamine occurred shall be considered a factor in aggravation by the sentencing court. (c) Except as otherwise provided by law, every person who offers to perform an act which is punishable under subdivision (a) shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, four, or five years. (d) All fines collected pursuant to subdivision (a) shall be transferred to the State Treasury for deposit in the Clandestine Drug Lab Clean-up Account, as established by Section 5 of Chapter 1295 of the Statutes of 1987. The transmission to the State Treasury shall be carried out in the same manner as fines collected for the state by the county.")

2 California Jury Instructions, Criminal "CALJIC" 12.09.1 - Manufacturing narcotics.  ("(Health and Safety Code § 11379.6, subdivisions (a) and (b)).  ("[Defendant is accused [in Count[s] ] of having violated section 11379.6, subdivision [(a)] [(b)] of the Health and Safety Code, a crime.] Every person who [__________] [offers to __________] __________, a controlled substance, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, is guilty of a violation of Health and Safety Code section 11379.6, subdivision [(a)] [(b)], a crime. [The crime of manufacturing a controlled substance, and the term "manufacture" as used in this instruction, does not require proof or mean that the process of manufacturing be completed. Rather, the crime is committed when a person knowingly participates in the initial or intermediate steps carried out to process a controlled substance. [Thus, it is unlawful for a person to engage in the synthesis, processing, or preparation of a chemical used in the manufacture of a controlled substance, even if the chemical is not itself a controlled substance, provided the person knows that the chemical is to be used in the manufacturing of a controlled substance.]] In order to prove this crime, each of the following elements must be proved: 1 A person [__________] [offered to __________] either directly or indirectly, by means of chemical extraction, or independently by means of chemical synthesis, a controlled substance, namely ; [and] 2 That person knew that the substance [to be] manufactured had the character of a controlled substance[.] [; and] [3 That person had the specific intent to __________ a controlled substance, namely .]")

3 See Health and Safety Code 11379.6 HS California's law against manufacturing narcotics, endnote 1.

4 See same.

5 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

6 California Health and Safety Code 11379.6 HS, endnote 1.

7 See CALJIC 12.09.1 - Manufacturing narcotics, endnote 2.

8 People v. Stone (1999) 75 Cal.App.4th 707.

9 See CALJIC 12.09.1 - Manufacturing narcotics, endnote 2.

10 People v. Luna (2009) 170 Cal.App.4th 535.

11 Rancho Cucamonga marijuana defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients accused of manufacturing narcotics and other drug-related offenses throughout the Inland Empire including San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.

12 Penal Code 664 PC - Attempts, punishment.  ("Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: (a) If the crime attempted is punishable by imprisonment in the state prison [like a manufacturing narcotics charge], the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years. The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact. (b) If the crime attempted is punishable by imprisonment in a county jail, the person guilty of the attempt shall be punished by imprisonment in a county jail for a term not exceeding one-half the term of imprisonment prescribed upon a conviction of the offense attempted. (c) If the offense so attempted is punishable by a fine, the offender convicted of that attempt shall be punished by a fine not exceeding one-half the largest fine which may be imposed upon a conviction of the offense attempted. (d) If a crime is divided into degrees, an attempt to commit the crime may be of any of those degrees, and the punishment for the attempt shall be determined as  provided by this section. (e) Notwithstanding subdivision (a), if attempted murder is committed upon a peace officer or firefighter, as those terms are defined in paragraphs (7) and (9) of subdivision (a) of Section 190.2, a custodial officer, as that term is defined in subdivision (a) of Section 831 or subdivision (a) of Section 831.5, a custody assistant, as that term is defined in subdivision (a) of Section 831.7, or a nonsworn uniformed employee of a sheriff's department whose job entails the care or control of inmates in a detention facility, as defined in subdivision (c) of Section 289.6, and the person who commits the offense knows or reasonably should know that the victim is a peace officer, firefighter, custodial officer, custody assistant, or nonsworn uniformed employee of a sheriff's department engaged in the performance of his or her duties, the person guilty of the attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. This subdivision shall apply if it is proven that a direct but ineffectual act was committed by one person toward killing another human being and the person committing the act harbored express malice aforethought, namely, a specific intent to unlawfully kill another human being. The Legislature finds and declares that this paragraph is declaratory of existing law. (f) Notwithstanding subdivision (a), if the elements of subdivision (e) are proven in an attempted murder and it is also charged and admitted or found to be true by the trier of fact that the attempted murder was willful, deliberate, and premeditated, the person guilty of the attempt [under California's attempt laws] shall be punished by imprisonment in the state prison for 15 years to life. Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce this minimum term of 15 years in state prison, and the person shall not be released prior to serving 15 years' confinement.")

13 See Health and Safety Code 11379.6 HS California's law against manufacturing narcotics, endnote 1, above.

14 See same.

15 Health and Safety Code 11379.8 HS - Conviction for violation of § 11379.6(a) with respect to any substance containing specified controlled substances; additional term.  ("(a) Any person convicted of a violation of subdivision (a) of Section 11379.6, or of a conspiracy to violate subdivision (a) of Section 11379.6, with respect to any substance containing a controlled substance which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054, or in paragraph (1) or (2) of subdivision (d) or in paragraph (3) of subdivision (e) or in paragraph (2) of subdivision (f) of Section 11055 shall receive an additional term as follows: (1) Where the substance exceeds three gallons of liquid by volume or one pound of solid substances by weight, the person shall receive an additional term of three years. (2) Where the substance exceeds 10 gallons of liquid by volume or three pounds of solid substance by weight, the person shall receive an additional term of five years. (3) Where the substance exceeds 25 gallons of liquid by volume or 10 pounds of solid substance by weight, the person shall receive an additional term of 10 years. (4) Where the substance exceeds 105 gallons of liquid by volume or 44 pounds of solid substance by weight, the person shall receive an additional term of 15 years. In computing the quantities involved in this subdivision, plant or vegetable material seized shall not be included. (b) The additional terms provided in this section shall not be imposed unless the allegation that the controlled substance exceeds the amounts provided in this section is charged in the accusatory pleading and admitted or found to be true by the trier of fact. (c) The additional terms provided in this section shall be in addition to any other punishment provided by law. (d) Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment. (e) The conspiracy enhancements provided for in this section shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the direction or supervision of, or in a significant portion of the financing of, the underlying offense.")

See also People v. Hard (2003) 112 Cal.App.4th 272.

16 Health and Safety Code 11379.9 HS - Death or great bodily injury of another person; use of methamphetamine or phencyclidine; punishment.  ("(a) Except as provided by Section 11379.7, any person convicted of a violation of, or of an attempt to violate, subdivision (a) of Section 11379.6 or Section 11383, as those sections relate to methamphetamine or phencyclidine, when the commission or attempted commission of the offense causes the death or great bodily injury of another person other than an accomplice, shall, in addition and consecutive to any other punishment authorized by law, be punished by an additional term of one year in the state prison for each death or injury. (b) Nothing in this section shall preclude prosecution under both this section and Section 187, 192, or 12022.7, or any other provision of law. However, a person who is punished under another provision of law for causing death or great bodily injury as described in subdivision (a) shall not receive an additional term of imprisonment under this section.")

17 See Health and Safety Code 11379.6 HS California's law against manufacturing narcotics, endnote 1, above.

18 California Health and Safety Code 11379.7 HS - Convictions for specified violations involving methamphetamine or phencyclidine; structures where underage child present; great bodily injury suffered by underage child; additional punishment.  ("(a) Except as provided in subdivision (b), any person convicted of a violation of subdivision (a) of Section 11379.6 or Section 11383, or of an attempt to violate subdivision (a) of Section 11379.6 [California's law against manufacturing narcotics] or Section 11383, as those sections relate to methamphetamine or phencyclidine, when the commission or attempted commission of the crime occurs in a structure where any child under 16 years of age is present, shall, in addition and consecutive to the punishment prescribed for the felony of which he or she has been convicted, be punished by an additional term of two years in the state prison. (b) Any person convicted of a violation of subdivision (a) of Section 11379.6 or Section 11383, or of an attempt to violate subdivision (a) of Section 11379.6 [California's law against manufacturing narcotics] or Section 11383, as those sections relate to methamphetamine or phencyclidine, where the commission of the crime causes any child under 16 years of age to suffer great bodily injury, shall, in addition and consecutive to the punishment prescribed for the felony of which he or she has been convicted, be punished by an additional term of five years in the state prison. (c) As used in this section, "structure" means any house, apartment building, shop, warehouse, barn, building, vessel, railroad car, cargo container, motor vehicle, housecar, trailer, trailer coach, camper, mine, floating home, or other enclosed structure capable of holding a child and manufacturing equipment. (d) As used in this section, "great bodily injury" has the same meaning as defined in Section 12022.7 of the Penal Code.")

19 See same.

20 California Health and Safety Code 11370.2 HS - Sentence enhancements for persons with certain prior convictions.  ("(a) Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, [California's law against manufacturing narcotics] 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment. (b) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378.5, 11379.5, 11379.6, 11380.5, or 11383 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, [California's law against manufacturing narcotics] 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment. (c) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, [California's law against manufacturing narcotics] 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment. (d) The enhancements provided for in this section shall be pleaded and proven as provided by law. (e) The conspiracy enhancements provided for in this section shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense. (f) Prior convictions from another jurisdiction qualify for use under this section pursuant to Section 668.")

21California Penal Code 1210.1 PC (also known as Proposition 36) -- Possession of Controlled Substances; Probation; Exceptions.

22California Penal Code 1000 PC -- Application of chapter to certain violations.

23 California Health and Safety Code 11350 HS -- Possession of designated controlled substances; punishment and fine.  ("(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), 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, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code. (b) Except as otherwise provided in this division, every person who possesses any controlled substance specified in subdivision (e) of Section 11054 shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code. (c) Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a) or (b), the judge may, in addition to any punishment provided for pursuant to subdivision (a) or (b), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant' s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (d) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered: (1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service. (2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service. (3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine.")

Possessing a controlled substance in conjunction with manufacturing narcotics could lead to prosecution for both charges.

24 Health and Safety Code 11377 HS - Possession of methamphetamines. ("(a) Except as authorized by law and as otherwise provided in subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055 [methamphetamines fall under 11055(d)(2)], unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year or in the state prison. (b)(1) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in subdivision (f) of Section 11056, and who has not previously been convicted of a violation involving a controlled substance specified in subdivision (f) of Section 11056, is guilty of a misdemeanor. (2) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in subdivision (g) of Section 11056 is guilty of a misdemeanor. (3) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in paragraph (7) or (8) of subdivision (d) of Section 11055 is guilty of a misdemeanor. (4) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in paragraph (8) of subdivision (f) of Section 11057 is guilty of a misdemeanor. (c) In addition to any fine assessed under subdivision (b), the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates subdivision (a), with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.")  Possessing or selling meth in conjunction with manufacturing narcotics could lead to prosecution for both charges.

25 California Health and Safety Code 11351 HS -- Possession or purchase for sale of designated controlled substances; punishment.  ("Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) 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, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years.").

Possessing drugs with the intent to sell in conjunction with manufacturing narcotics could lead to prosecution for both charges.

26 California Health and Safety Code 11352 HS -- Transportation, sale, giving away, etc., of designated controlled substances; punishment.  ("(a) Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) 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, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, four, or five years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, six, or nine years.")

Selling drugs in conjunction with manufacturing narcotics could lead to prosecution for both charges.

27 California Health and Safety Code 11550 HS -- Under the influence of a controlled substance.  ("(a) No person shall use, or be under the influence of any controlled substance which is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), (21), (22), or (23) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (1) or (2) of subdivision (d) or in paragraph (3) of subdivision (e) of Section 11055, or (2) a narcotic drug classified in Schedule III, IV, or V, except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances. It shall be the burden of the defense to show that it comes within the exception. Any person convicted of violating this subdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days or more than one year in a county jail. The court may place a person convicted under this subdivision on probation for a period not to exceed five years and, except as provided in subdivision (c), shall in all cases in which probation is granted require, as a condition thereof, that the person be confined in a county jail for at least 90 days. Other than as provided by subdivision (c), in no event shall the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail. (b) Any person who (1) is convicted of violating subdivision (a) when the offense occurred within seven years of that person being convicted of two or more separate violations of that subdivision, and (2) refuses to complete a licensed drug rehabilitation program offered by the court pursuant to subdivision (c), shall be punished by imprisonment in a county jail for not less than 180 days nor more than one year. In no event does the court have the power to absolve a person convicted of a violation of subdivision (a) that is punishable under this subdivision from the obligation of spending at least 180 days in confinement in a county jail unless there are no licensed drug rehabilitation programs reasonably available. For the purpose of this section, a drug rehabilitation program shall not be considered reasonably available unless the person is required to pay no more than the court determines that he or she is reasonably able to pay, in order to participate in the program. (c) The court may, when it would be in the interest of justice, permit any person convicted of a violation of subdivision (a) punishable under subdivision (a) or (b) to complete a licensed drug rehabilitation program in lieu of part or all of the imprisonment in the county jail. As a condition of sentencing, the court may require the offender to pay all or a portion of the drug rehabilitation program. In order to alleviate jail overcrowding and to provide recidivist offenders with a reasonable opportunity to seek rehabilitation pursuant to this subdivision, counties are encouraged to include provisions to augment licensed drug rehabilitation programs in their substance abuse proposals and applications submitted to the state for federal and state drug abuse funds. (d) In addition to any fine assessed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (e) Notwithstanding subdivisions (a) and (b) or any other provision of law, any person who is unlawfully under the influence of cocaine, cocaine base, heroin, methamphetamine, or phencyclidine while in the immediate personal possession of a loaded, operable firearm is guilty of a public offense punishable by imprisonment in a county jail for not exceeding one year or in state prison. As used in this subdivision "immediate personal possession" includes, but is not limited to, the interior passenger compartment of a motor vehicle. (f) Every person who violates subdivision (e) is punishable upon the second and each subsequent conviction by imprisonment in the state prison for two, three, or four years. (g) Nothing in this section prevents deferred entry of judgment or a defendant's participation in a preguilty plea drug court program under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code unless the person is charged with violating subdivision (b) or (c) of Section 243 of the Penal Code. A person charged with violating this section by being under the influence of any controlled substance which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or in paragraph (3) of subdivision (e) of Section 11055 and with violating either subdivision (b) or (c) of Section 243 of the Penal Code or with a violation of subdivision (e) shall be ineligible for deferred entry of judgment or a preguilty plea drug court program.")  Being under the influence of drugs in conjunction with manufacturing narcotics could lead to prosecution for both charges.

28 California Health and Safety Code 11364 HS - California's possession of paraphernalia law.  ("(a) It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking (1) a 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, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (2) of subdivision (d) of Section 11055, or (2) a controlled substance which is a narcotic drug classified in Schedule III, IV, or V.")  Possessing drug paraphernalia in conjunction with manufacturing narcotics could lead to prosecution for both charges.

29 California Health and Safety Code 11366.5 HS - Renting, leasing, or making available for use a building, room, space, or enclosure for unlawful manufacture, storage, or distribution of controlled substance; allowing building, room, space, or enclosure to be fortified to suppress law enforcement entry to further sale of specified controlled substances; punishment.  ("(a) Any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly rents, leases, or makes available for use, with or without compensation, the building, room, space, or enclosure for the purpose of unlawfully manufacturing, storing, or distributing any controlled substance for sale or distribution shall be punished by imprisonment in the county jail for not more than one year, or pursuant to subdivision (h) of Section 1170 of the Penal Code. (b) Any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly allows the building, room, space, or enclosure to be fortified to suppress law enforcement entry in order to further the sale of any amount of cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, cocaine as specified in paragraph (6) of subdivision (b) of Section 11055, heroin, phencyclidine, amphetamine, methamphetamine, or lysergic acid diethylamide and who obtains excessive profits from the use of the building, room, space, or enclosure shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years. (c) Any person who violates subdivision (a) after previously being convicted of a violation of subdivision (a) shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years. (d) For the purposes of this section, "excessive profits" means the receipt of consideration of a value substantially higher than fair market value.")

Allowing someone to manufacture narcotics in your place of business could therefore trigger conspiracy and aiding and abetting charges.

30Penal Code 182 PC California's conspiracy law.

See also California Jury Instructions - Criminal "CALJIC" 3.01 -- Aiding and Abetting.  ("A person aids and abets the [commission] [or] [attempted commission] of a crime when he or she: (1) With knowledge of the unlawful purpose of the perpetrator, and (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) By act or advice, [or, by failing to act in a situation where a person has a legal duty to act,] aids, promotes, encourages or instigates the commission of the crime. [A person who aids and abets the [commission] [or] [attempted commission] of a crime need not be present at the scene of the crime.] [Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.] [Mere knowledge that a crime is being committed and [in the absence of a legal duty to take every step reasonably possible to prevent the crime,] the failure to prevent it does not amount to aiding and abetting.]") Allowing someone to manufacture narcotics in your place of business could therefore trigger conspiracy and aiding and abetting charges.

See also People v. Sanchez (1994) 27 Cal.App.4th 918.

31 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's drug crimes. Our Nevada law offices are located in Reno and Las Vegas.

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