Possession of a Controlled Substance
California Health & Safety Code 11350 HS

Charged with possession of a controlled substance in California?  You came to the right page.

We're a statewide law firm of former drug prosecutors and former narcotics investigators. Now we've switched sides and we defend people accused of drug crimes. By knowing how cops and district attorneys build their cases, we know how to pick them apart.

Maybe the cops stopped and searched you without probable cause. Maybe the drugs they found didn't even belong to you. Maybe you're addicted and you need treatment rather than punishment.

Whatever the case, we can help...

In this article, our California drug crime defense attorneys1 explain Health and Safety Code 11350 HS by addressing:

1.  California Health & Safety Code 11350 HS -- Possession of a Controlled Substance

1.1. Possession

1.1.a. Actual possession

1.1.b. Constructive possession

1.1.c. Joint possession

1.2. Knowledge

1.3. Quantity

2. Legal Defenses

2.1. You held a valid prescription

2.2. You didn't "possess" the controlled substance

2.2.a. You only temporarily
had possession

2.3. Lack of knowledge

2.4. Illegal search and seizure

3. Penalties, Punishment and Sentencing

3.1. Drug diversion

4. Related Offenses

4.1. Health and Safety Code 11351 HS -- possessing or purchasing controlled substances for sale

4.2. Health and Safety Code 11352 HS -- sales and transportation of controlled substances

4.3. Health and Safety Code sections 11377, 11378 and 11379 HS -- possession, sales and transportation
of methamphetamines

4.4. Health and Safety Code 11550 HS California's "under the influence of a controlled substance" law

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 Sections 11377, 11378 and 11379 HS California's Law Against Possessing, Selling or Transporting Methamphetamines; 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 11550 HS California's Under the Influence Law; Driving Under the Influence of Drugs; Cocaine; Heroin; Gamma-Hydroxybutyric Acid ("GHB"); Ketamine; Phencyclidine ("PCP"); Ecstasy; Codeine; Hydrocodone "Vicodin"; California's Prescription Fraud / Doctor Shopping Laws; California Legal Defenses; California's Search and Seizure Laws; Penal Code 1538.5 PC Motion to Suppress Evidence; Police Misconduct; Racial Profiling; Wobblers; Misdemeanors; Felonies; Proposition 36; Penal Code 1000 PC Deferred Entry of Judgment; and California Drug Courts.

1.  California Health & Safety Code 11350 HS -- Possession of a Controlled Substance

California Health and Safety Code 11350 HS prohibits possessing specific "controlled substances" without a valid prescription.2 A "controlled substance" is a drug or chemical whose manufacture, possession and use are regulated by the government under the United States "Controlled Substances Act".

Examples of commonly possessed controlled substances...which are more commonly referred to as illegal drugs or narcotics...that violate this law include (but are not limited to):

In addition, California's illegal drug possession law also prohibits you from possessing certain prescribed drugs without a valid prescription.  Examples of these controlled substances that are frequently prescribed...and frequently abused...include (but are not limited to):

In order to prove that you "possessed" a controlled substance, the prosecutor must prove that

  • you exercised control over the drug (or had the right to do so),
  • you knew of the drug's presence,
  • you knew of its nature as a controlled substance, and
  • there was a sufficient quantity of the drug to be used as a controlled substance.5

Let's take a closer look at some of these terms and phrases to gain a better understanding of their legal meanings.

1.1. Possession

In the Health & Safety Code 11350 context, the word "possession" can refer to three distinct legal ideas. It could refer to "actual" possession, "constructive" possession or "joint" possession.  Possessing an illegal narcotic under any of these definitions is illegal.

1.1.a. Actual possession

If you have "actual" possession of a controlled substance, then you have direct and immediate physical control over it.  This usually means the drug is on your person (for example, in a pocket, in a purse/briefcase, or even in a body cavity).

If the police find you in actual possession of a controlled substance, it will be difficult...but by no means impossible...to argue that you didn't possess the drugs.

And even if the drugs are not "on you" when the cops do their search...but it's obvious that you did possess them shortly beforehand...you could still get charged.

Example:  Defendant was convicted of possessing "LSD" even though he had ingested it before being investigated.  Because he was believed to still be under the drug's influence at the time of the arrest...and because there was "no question that the defendant possessed the drug prior to ingesting it"...the court held that evidence of past possession could sustain a conviction for present possession.6

1.1.b. Constructive possession

If you have "constructive" possession over a controlled substance, it means that the drugs were not found on your person but were discovered in a location over which you exercise control.  This control may be direct or through another person/persons.7

Example:  The police raid Tom's house and find his stash of PCP in his dresser drawer. It turns out Tom is away in another city when the raid takes place. Therefore the cops don't find Tom in actual possession of the PCP. However, the drugs belong to him and he has control over them. Thus he's in "constructive possession" and may be charged with Health & Safety Code 11350 HS.8

However, neither

  • having access to a controlled substance, nor
  • being near the drugs (or near someone else who has the drugs)

is, by itself, sufficient to constitute possession.9

Suppose, for example, illegal drugs were found in your roommate's dresser. That evidence by itself would not support an allegation that you possessed the drugs. This is the case in spite of the fact that you probably have access to his room and that...when you are home...you are in close proximity to the drugs.

1.1.c. Joint possession

You have "joint" possession when you and at least one other person share either actual or constructive possession.  This could be actual (where, for example, you and a friend are both sharing a needle that contains a narcotic) or constructive (where the drugs are found in the living room in an apartment that you share with your spouse or your roommate).

Example:  Husband Harry and wife Wilma live together. The Sheriffs serve a search warrant and find a pound of cocaine in their refrigerator. The evidence reveals that the cocaine belongs to Harry. But Wilma knows it's there, and she allows him to keep it in their common refrigerator. Both Harry and Wilma could be charged under California's possession of a controlled substance law.

1.2. Knowledge

Before the prosecutor can convict you of possession of a controlled substance, he/she must prove that

  1. you knew of the drug's presence, and
  2. you knew of its nature as a controlled substance.

This is to say that if you either didn't know the drugs were present (or didn't know what they were), you should be acquitted of this offense.

This might be the case if, for example,

  • you loaned your car to someone last week and, unbeknownst to you, that person had left some heroin balloons under your seat, or
  • you knew you possessed a drug but believed that it was an over-the-counter ("OTC") drug because you took it out of a friend's medicine cabinet.

With respect to the second type of required knowledge, knowing the precise chemical makeup of the drug is not necessary.  If you know that the drug is a controlled substance, that knowledge is sufficient to constitute the crime.10

1.3. There was a sufficient quantity of the drug for use

The crime of "possession" requires that you possess enough of the drug so that it can be used as a controlled substance.  This means that useless traces or residue of drugs will not support a conviction for possession.  There has to be enough of the drug so that it can be used as a drug.11

However, that does not mean that there has to be enough of the controlled substance to have the effect it is ordinarily expected to produce (known as a "narcotic effect").12

The bottom line is that if you don't possess enough of the drug to consume it, you should be acquitted of this offense.

2. Legal Defenses

The good news is that there are a variety of legal defenses to a possession charge that a skilled California drug crimes lawyer could present on your behalf.  And while the specific defenses that will apply to your case will vary, there are some that are common to many California drug crimes.    Examples include (but are not limited to):

2.1. You held a valid prescription

If you held a valid prescription for the drug, you are excused from a violation of Health and Safety Code 11350 HS as long as your possession of the controlled substance was consistent with the purpose of the prescription.13

As a result, this defense does not apply if, for example, you

2.2. You didn't "possess" the controlled substance

While this defense seems obvious...and possibly even ridiculous...it's neither.  Officers routinely arrest people for drug possession when these people had neither actual nor constructive possession over the seized drug(s).

Example: Defendant and two other people in a car were stopped by the police when the officer noticed the car slowly cruising back and forth in an alley in an area that had a high frequency of daytime burglaries.  After the officer ordered the men out of the car...and as the men were standing in an ivy patch, a witness saw one of the men "shake" his clothes as if he were dropping something.
The men were released.  At least three times thereafter, the defendant and others returned to the scene to search for something in the ivy.  The same witness called the police who arrived and discovered a balloon filled with heroin in the ivy.  The two men at the scene at that point (which included the defendant) were arrested.
The court held that once the heroin was abandoned in the ivy, the defendant did not have constructive possession on the day the controlled substance was found.  The court further reasoned that (1) because the defendant unsuccessfully tried at least three different times to find the drugs, it did not appear that he placed the drugs there himself, and (2) that the defendant did not have exclusive access to or control over the ivy.14

2.2.a. You only had temporary possession of the drugs

Temporary possession of a controlled substance will act as a legal defense to a California possession charge if you

  1. only temporarily possessed the drugs in order to destroy or dispose of them in an effort to terminate someone else's unlawful possession, and
  2. didn't possess the drugs in order to prevent their imminent seizure by law enforcement.

However, if you voluntarily dispose of the narcotics when you are the person who exercised control over them...for example, flushing them down the toilet when the cops are busting down your door with a search warrant...that will not absolve you of criminal culpability.15

2.3. Lack of knowledge

Once again, you can only be convicted of possessing a controlled substance if you

  1. knew you possessed the drug, and
  2. knew that it was, in fact, a controlled substance.
Example: David lent his jacket to his friend Fred. Fred scored some coke and placed a quarter baggie in the jacket's inside pocket. Fred forgot to retrieve the baggie when he returned the jacket to David. A couple days later, the cops stop and search David and find the cocaine. They arrest him for Health & Safety Code 11350: possession of a controlled substance. Because the drug didn't belong to David, and he didn't even know it was there until the police discovered it, he hasn't committed any crime.

Similarly, if you weren't aware that the drugs you possessed were illegal, you should be acquitted of illegal possession.  This defense works best in cases where the defendant was caught with a controlled substance and appeared completely clueless about the fact that it was illegal.

However the prosecutor may point to facts such as

  • having a prior drug record,
  • running from the cops, and/or
  • refusing to take a drug test

as circumstantial evidence that you knew you possessed the drugs and knew they were a controlled substance.

2.4. Illegal search and seizure

As San Bernardino criminal defense attorney Michael Scafiddi16 explains, "Many California drug crimes involve allegations of illegal searches and/or seizures.  Some examples of violations of California search and seizure laws include (but are not limited to) situations where the officer

  • illegally detains or arrests you (for example, pursuant to a stop that was based on racial profiling),
  • discovers the controlled substances during an illegal search (either because he/she didn't have a California search warrant17 or because he/she searched beyond the permissible scope of the warrant), and/or
  • uses excessive force to seize the illegal narcotics."

If your attorney suspects an illegal search and/or seizure took place, he/she will probably file a motion to suppress evidence. If the court grants this motion, the evidence-and probably the whole case-will get thrown out of court.

3. Penalties, Punishment and Sentencing

Health and Safety Code 11350 HS California's "possession of controlled substances" law is typically a felony.  If convicted of this offense you face either:

(a) probation and up to a year in county jail, or                  
(b) a California state prison sentence of 16 months, or two or three years.18

However, if the drugs you allegedly possessed are classified within a small group of depressants...including gamma-hydroxybutyric acid ("GHB")...then the offense is what's known as a wobbler.19

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 this offense as a misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine.20

And if you are not a citizen of the United States, a conviction for possession of illegal drugs could additionally lead to deportation, denial of reentry and denial of naturalization.21 For more information about how California drug offenses affect aliens, please review our article on California Crimes that Lead to Deportation.

3.1. Drug diversion

The good news is that a person can usually do drug diversion if he gets charged with Health & Safety Code 11350 HS: possession of a controlled substance in California.  These include

These programs...known collectively as "drug diversion"...allow people who have committed non-violent drug possession offenses to serve their sentences in drug treatment programs in lieu of jail or prison.

The best part is that if you successfully complete the drug diversion program, your drug charges will ultimately be dismissed.

Drug diversion is not offered to everyone and, in fact, has a number of limitations.24 Consult with an experienced California drug crime defense attorney to find out if you qualify for this type of alternative sentencing.

4. Related Offenses

There are a number of laws that are closely related to Health and Safety Code 11350 HS California's "possession of a controlled substance" law.  Depending on the circumstances of your arrest, prosecutors may file these charges in addition to or in lieu of a possession charge.

4.1. Health and Safety Code 11351 HS -- possessing or purchasing controlled substances for sale

Health and Safety Code 11351 HS California's "possession of a controlled substances for sale" law is similar to 11350 HS in that it involves the same drugs.  However, this is the more serious of the two laws, as it relates to possessing the drugs for sale as opposed for to possessing them for personal use.

If convicted of this felony, you face either probation with up to a year county jail, or two, three or four years in the state prison.25 Unlike HS 11350, drug diversion is not available to a defendant convicted of this offense.

This is another reason why having a savvy California drug crimes lawyer is so important.  He/she knows the most effective ways to persuade the prosecutor to reduce the charge from possession for sales to simple possession of a controlled substance. That opens the opportunity to do drug diversion rather than custody time.

4.2. Health and Safety Code 11352 HS -- sales and transportation of controlled substances

Similarly, Health and Safety Code 11352 HS California's "sales or transportation of a controlled substance" law also involves sales of the same prohibited narcotics.  This is the most serious of the three laws, since it involves actual drug transactions (as opposed to possessing the drugs with the intent to use or sell them).

If convicted of this felony, you either face (a) probation with up to a year county jail, or (2) three, four or five years in the state prison (three, six or nine years if you transport the drugs across more than two county lines).26

And again, because this offense involves sales (rather than simple, personal possession) drug diversion is not an option in connection with a conviction for this crime...that is, unless your attorney can alternatively negotiate a plea to a personal possession charge instead.

4.3. Health and Safety Code sections 11377, 11378 and 11379 HS -- possession, sales and transportation of methamphetamines

Health and Safety Code sections 11377, 11378 and 11379 HS California's laws against the possession, sales and transportation of methamphetamines mimic HS 11350 (and 11351 and 11352, discussed above), with one major difference.

The difference is that these laws regulate different drugs...slightly less "serious" drugs.  And while methamphetamines...also referred to as "meth"...are probably the most common drugs that are prosecuted under these laws, they regulate a variety of other drugs as well.  Some of these include (but are not limited to):

∗When drugs are prohibited under more than one law...such as "GHB"...the prosecutor has the discretion to choose which charges to file.

Health and Safety Code 11377 HS is a wobbler. This means the prosecutor can file it either as a misdemeanor or a felony.  As a felony, it subjects you to the same penalties and punishments as Health and Safety Code 11350 above.27

However, 11378 and 11379 are both straight felonies, subjecting you either to probation with county time, or from 16 months to nine years in the state prison.28

4.4. Health and Safety Code 11550 HS California's "under the influence of a controlled substance" law

You violate Health and Safety Code 11550 HS California's "under the influence of a controlled substance" law anytime you (1) willfully use a controlled substance or narcotic, and/or (2) are under its influence.

"Under the influence" of a controlled substance means that you are under the influence in any detectable manner.

The drugs addressed in this law include controlled substances that are also covered by Health and Safety Codes 11377 and 11350 HS such as

  • cocaine base,
  • opiates or opiate derivatives,
  • methamphetamines, and
  • PCP.

A conviction for this misdemeanor drug offense subjects you to a minimum of 90 days-and up to one year-of jail.  However, eligible defendants may be able to participate in drug diversion instead.29

Call us for help...
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If you or loved one is charged with Health & Safety Code 11350 HS possession 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 "possession of a controlled substance" laws.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.30

Legal References:

1Our 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.

2California Health and Safety Code 11350 HS -- Possession of controlled substances.  ("(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 in the state prison. (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 the county jail for not more than one year or in the state prison. (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.")

3See same.

4See same.

5California Jury Instructions, Criminal (CALCRIM 12.00) -- Possession of a controlled substance.  ("In order to prove this crime, each of the following elements must be proved: 1 A person exercised control over or the right to control an amount of __________, a controlled substance; 2 That person knew of its presence; 3 That person knew of its nature as a controlled substance; and 4 The substance was in an amount sufficient to be used as a controlled substance.")

6People v. Palaschak (1995) 9 Cal.4th 1236, 1242.  ("On being arrested, defendant readily admitted ingesting the drug. He confirmed this fact to news reporters. The arresting officers testified that defendant was under the influence of LSD, and lab technicians verified that the remaining doses of LSD in Jobin's possession were indeed LSD. As the Court of Appeal majority conceded, "there is no question that Defendant possessed LSD prior to ingesting it." Although Fein and Sullivan reached defensible results on their facts, we disapprove the broad dictum in those cases to the effect that evidence of past possession cannot sustain a conviction for present possession. If, as in the present case, direct or circumstantial evidence establishes that the defendant possessed an illegal drug during the period of the applicable statute of limitations, no compelling reason appears why that evidence should not be sufficient to sustain a [California Health and Safety Code 11350 HS] possession conviction. Certainly, the drug possession statutes contain no such requirement.")

7People v. Showers (1968) 68 Cal.2d 639, 643-644.  ("The accused has constructive possession when he maintains control or a right to control the contraband. Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control. (E.g., People v. Finn, 232 Cal.App.2d 422, 426, 42 Cal.Rptr. 704 (in defendant's bathroom); People v. Van Valkenburg, 111 Cal.App.2d 337, 340, 244 P.2d 750 (in defendant's mattress); People v. Noland, 61 Cal.App.2d 364, 366, 143 P.2d 86 (in a vase in defendant's room).) Even if the accused does not have exclusive control of the hiding place possession may be imputed if he has not abandoned the narcotic and no other person has obtained possession. (People v. Cuellar, 110 Cal.App.2d 273, 242 P.2d 694 (defendant buried the narcotic on a public playground covering the hiding place with leaves); People v. Bigelow, 104 Cal.App.2d 380, 385, 231 P.2d 881.) The accused is also deemed to have the same possession as any person actually possessing the narcotic pursuant to his direction or permission where he retains the right to exercise dominion or control over the property. (E.g., People v. White, supra, 50 Cal.2d 428, 431, 325 P.2d 985; People v. Blunt, 241 Cal.App.2d 200, 204, 50 Cal.Rptr. 440; People v. Graves, 84 Cal.App.2d 531, 534-535, 191 P.2d 32.)")

8See, for example, People v. Mardian (1975) 47 Cal.App.3d 16 (overruled on other grounds).

9See same at 46. ("...the court adequately instructed the jury on the question of whether defendant had actual possession of the contraband (e.g., dominion). The court stated that neither mere proximity to the drug, nor association with those in possession, was sufficient to establish possession under the law.")

10People v. Guy (1980) 107 Cal.App.3d 593, 600-601.  ("Defendant next contends that the court should have instructed the jury that the prosecution had to prove defendant knew the controlled substance he possessed was PCP.FN5 Defendant reasons that because he did not know the drug was PCP, "he did not have the requisite knowledge" to be convicted of possession of PCP for sale under Health and Safety Code section 11378.FN6 This position has been rejected in People v. Garringer (1975) 48 Cal.App.3d 827 [121 Cal.Rptr. 922].FN7 In that case the court wisely determined that knowledge for the purpose of conviction under Health and Safety Code section 11377, is knowledge of the controlled nature of the substance and not its precise chemical composition. Although the Garringer court dealt with mere possession rather than possession for sale, the knowledge element is the same.")

11People v. Leal (1966) 64 Cal.2d 504, 512.  ("We conclude that the statutory differentiation of the various crimes as well as the history of the cases culminating in Sullivan show that in penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such. It did not refer to useless traces or residue of such substance. Hence the possession of a minute crystalline residue of narcotic useless for either sale or consumption, as Sullivan points out, does not constitute sufficient evidence in itself to sustain a conviction [under Health and Safety Code 11350 HS California's possession of a controlled substance law].")

12People v. Rubacalba (1993) 6 Cal.4th 62, 66.  ("These cases make clear, and we agree, that the Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven.")

See also CALJIC 12.33 -- Controlled Substance and Marijuana-Proof of Strength Unnecessary.  ("In order to establish that the amount, if any, of the [controlled substance] [marijuana] possessed by the defendant was a sufficient amount to constitute a violation of the law, it is not necessary that the People prove: [1] The amount possessed, if used, would have the effect it is ordinarily expected to produce, referred to as "narcotic effect," or [2] The narcotic ingredient in the particular substance possessed was capable of producing a "narcotic effect."")

13People v. Ard (1938) 25 C.A.2d 630.

14People v. Showers (1968) 68 Cal.2d 639, endnote 7, above.

15CALJIC 12.06 Possession-Not Unlawful-Burden of Proof.  ("A person is not guilty of a crime when his or her possession of [a controlled substance] [marijuana] is shown to be lawful. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that his or her possession of the [controlled substance] [marijuana] is lawful. The possession of a[n] [item] [controlled substance] [marijuana] is lawful where all of the following conditions are met: 1 The possession is momentary and is not based on either ownership or the right to exercise control over the __________; 2 The is __________ possessed solely for the purpose of abandonment, disposal, or destruction; 3 The __________ is possessed for the purpose of terminating the unlawful possession of it by another person or preventing another person from acquiring possession of it; and 4 Control is not exercised over the __________ for the purpose of preventing its imminent seizure by law enforcement.")

See also People v. Frazier (1998) 63 Cal.App.4th 1307.

16San Bernardino criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients accused of violating Health and Safety Code 11350 HS California's possession of a controlled substance law throughout the Inland Empire including San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.

17Unless a search is (1) authorized by your consent, (2) incident to a lawful arrest, or (3) under some other recognized exception, it must be executed pursuant to a valid California search warrant.  If you were arrested for possession of methamphetamines...and the police found the drugs without a search warrant, be sure to consult with an experienced California drug crimes defense attorney.

18See Health and Safety Code 11350 HS California's "under the influence of a controlled substance" law, endnote 2, above.

See also California Health and Safety Code 11372 HS -- Fines.  ("(a) In addition to the term of imprisonment provided by law for persons convicted of violating Section 11350 [California's possession of a controlled substance law], 11351, 11351.5, 11352, 11353, 11355, 11359, 11360, or 11361, the trial court may impose a fine not exceeding twenty thousand dollars ($20,000) for each offense. In no event shall a fine be levied in lieu of or in substitution for the term of imprisonment provided by law for any of these offenses. (b) Any person receiving an additional term pursuant to paragraph (1) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not exceeding one million dollars ($1,000,000) for each offense. (c) Any person receiving an additional term pursuant to paragraph (2) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not to exceed four million dollars ($4,000,000) for each offense. (d) Any person receiving an additional term pursuant to paragraph (3) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not to exceed eight million dollars ($8,000,000) for each offense. (e) The court shall make a finding, prior to the imposition of the fines authorized by subdivisions (b) to (e), inclusive, that there is a reasonable expectation that the fine, or a substantial portion thereof, could be collected within a reasonable period of time, taking into consideration the defendant's income, earning capacity, and financial resources.")

19See Health and Safety Code 11350 HS California's "under the influence of a controlled substance" law, endnote 2, above.

20See Health and Safety Code 11350 HS California's "under the influence of a controlled substance" law, endnote 2, above.

See also California Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail.  ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")

See also California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment.  ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")

218 U.S. Code Section 1227 -- Deportable aliens. ("(a) Classes of deportable aliens. Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens...(2) Criminal offenses...(B) Controlled substances. (i) Conviction. Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.  And because Health and Safety Code 11350 HS California's possession of a controlled substance law is a crime involving a controlled substance, it is a California crime that could lead to deportation.

22California Penal Code 1210.1 PC (also known as Proposition 36).

23California Penal Code 1000 PC -- Application of chapter to certain violations.  ("(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading for a violation of Section 11350 [California's possession of a controlled substance law], 11357, 11364, 11365, 11377, or 11550 of the Health and Safety Code, or subdivision (b) of Section 23222 of the Vehicle Code, or Section 11358 of the Health and Safety Code if the marijuana planted, cultivated, harvested, dried, or processed is for personal use, or Section 11368 of the Health and Safety Code if the narcotic drug was secured by a fictitious prescription and is for the personal use of the defendant and was not sold or furnished to another, or subdivision (d) of Section 653f if the solicitation was for acts directed to personal use only, or Section 381 or subdivision (f) of Section 647 of the Penal Code, if for being under the influence of a controlled substance, or Section 4060 of the Business and Professions Code, and it appears to the prosecuting attorney that, except as provided in subdivision (b) of Section 11357 of the Health and Safety Code, all of the following apply to the defendant: (1) The defendant has no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense. (2) The offense charged did not involve a crime of violence or threatened violence. (3) There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in this subdivision. (4) The defendant's record does not indicate that probation or parole has ever been revoked without thereafter being completed. (5) The defendant's record does not indicate that he or she has successfully completed or been terminated from diversion or deferred entry of judgment pursuant to this chapter within five years prior to the alleged commission of the charged offense. (6) The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense. (b) The prosecuting attorney shall review his or her file to determine whether or not paragraphs (1) to (6), inclusive, of subdivision (a) apply to the defendant. Upon the agreement of the prosecuting attorney, law enforcement, the public defender, and the presiding judge of the criminal division of the superior court, or a judge designated by the presiding judge, this procedure shall be completed as soon as possible after the initial filing of the charges. If the defendant is found eligible, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. This procedure is intended to allow the court to set the hearing for deferred entry of judgment at the arraignment. If the defendant is found ineligible for deferred entry of judgment, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. The sole remedy of a defendant who is found ineligible for deferred entry of judgment is a postconviction appeal. (c) All referrals for deferred entry of judgment granted by the court pursuant to this chapter shall be made only to programs that have been certified by the county drug program administrator pursuant to Chapter 1.5 (commencing with Section 1211) of Title 8, or to programs that provide services at no cost to the participant and have been deemed by the court and the county drug program administrator to be credible and effective. The defendant may request to be referred to a program in any county, as long as that program meets the criteria set forth in this subdivision. (d) Deferred entry of judgment for a violation of Section 11368 of the Health and Safety Code shall not prohibit any administrative agency from taking disciplinary action against a licensee or from denying a license. Nothing in this subdivision shall be construed to expand or restrict the provisions of Section 1000.4. (e) Any defendant who is participating in a program referred to in this section may be required to undergo analysis of his or her urine for the purpose of testing for the presence of any drug as part of the program. However, urine analysis results shall not be admissible as a basis for any new criminal prosecution or proceeding.")

24See endnotes 22 and 23, above.

25Health 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 in the state prison for two, three, or four years.")

26Health 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 in the state prison for three, four, or five years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years.")

27Health 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, 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.")

28California Health and Safety Code 11378 HS - Possession of methamphetamines for sale; punishment.  ("Except as otherwise provided in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, except subdivision (g) of Section 11056, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) 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), except paragraph (3) of subdivision (e) and subparagraphs (A) and (B) of paragraph (2) of subdivision (f), of Section 11055, shall be punished by imprisonment in the state prison.")

See also California Health and Safety Code 11379 HS -- Transportation, sale, furnishing, etc. of methamphetamines; punishment.  ("(a) Except as otherwise provided in subdivision (b) and in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, 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 any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, except subdivision (g) of Section 11056, (2) specified in subdivision (d) of Section 11054 except paragraphs (13), (14), (15), (20), (21), (22), and (23) 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) or (e), except paragraph (3) of subdivision (e), or specified in subparagraph (A) of paragraph (1) of subdivision (f), of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in the state prison for a period of two, three, or four years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years.")

29California 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.")

30Please 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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