California Health and Safety Code 11370.1 HS makes it a crime to possess a controlled substance while being armed with an operable firearm. This is a felony punishable by up to four years behind bars and $10,000 in fines, though it may be possible to get probation instead.
There are also serious collateral consequences to a California felony conviction. Some include a lifetime gun ban and a criminal record that disqualifies you for jobs.
Our California criminal defense lawyers include former prosecutors and cops. We understand California’s complicated drug and firearm laws.
To help you better understand the laws on possessing a controlled substance while armed, our California criminal defense attorneys discuss the following:
1. Elements
For you to be convicted under California Health and Safety Code 11370.1 HS, the prosecutor must prove beyond a reasonable doubt the following seven elements of the jury instructions (CALCRIM 2303).1
- You possessed a usable amount of a controlled substance;
- You knew of its presence;
- You knew of the substance’s nature or character as a controlled substance;
- The controlled substance was one of the following:
- cocaine or cocaine base,
- heroin,
- methamphetamine,
- fentanyl,
- a crystalline substance, a liquid substance, or a plant material containing phencyclidine (“PCP”),
- a hand-rolled cigarette treated with PCP, or
- an analog of any of the above;
- The controlled substance was in a usable amount;
- While possessing that controlled substance, you had a loaded, operable firearm available for immediate offensive or defensive use; and
- You knew you had the firearm available for immediate offensive or defensive use.2
These elements are discussed in detail below. Note that you can be charged with both drug possession while armed as well as simple drug possession for the same crime without violating double jeopardy laws.3 This is because simple possession is not considered a “lesser included offense” of possession while armed.4
Meaning of “Possess”
There are three ways you can be found “in possession” of a controlled substance in California:
- Actual Possession: You are holding the drug or carrying it on your body or in something you are holding or wearing, such as a purse.
- Constructive Possession: You may not have immediate access to the drug, but you are in control of it or have the right to control it. An example is storing the drug in your drawer or a car.5
- Joint Possession: You and at least one other person share possession of the drug. An example is roommates keeping their joint stash of drugs in their closet.6
You have “actual” possession of a drug when you are holding it
Meaning of “Usable Amount”
You possess a “usable amount” of a controlled substance if there is enough to be used by someone as a drug. It does not necessarily have to be enough to get you — or anyone else — high.7
Meaning of “Armed”
You are armed with a loaded, operable firearm if you knowingly have one available for immediate offensive or defensive use.8 You do not need to be holding the firearm in order to be armed with it.9
Example: The police knock on Roderick’s door after receiving a noise complaint. When Roderick opens the door, the police see a table with cocaine on it, and a loaded gun tucked into the waistband of Roderick’s pants. Roderick is “armed” with a firearm within the meaning of Health and Safety Code 11370.1 HS.
Meaning of “Loaded Firearm”
A firearm is considered “loaded” when a shell or cartridge has been placed into a position from which it can be fired.10
If the shell(s), bullet(s), or cartridge is not in the gun, it is not yet in a position to be fired and is therefore unloaded.11
Example: Let’s say that in the example above, Roderick tucked an unloaded gun into his waistband in order to appear more intimidating. While he might be guilty of unlawfully possessing cocaine, he would not be guilty of possessing a controlled substance while armed.
Meaning of “Knowledge”
For you to be convicted under Health and Safety Code 11370.1 HS, the prosecutor must prove that you knew two things:
- You had a firearm available for immediate offense or defense use (though you do not need to know that it was loaded);12 and
- The substance you possessed was a controlled substance (though you do not need to know which controlled substance it is).13
Prosecutors can use direct or circumstantial evidence to try to prove what you knew. This can include (but is not limited to):
- Your admission that you knew what heroin/cocaine/meth/PCP/fentanyl looks like;
- Statements you made to others about the nature of the substance;
- Evidence of your drug or gun use; or
- Evidence of past drug- or firearm-related crimes.14
Health and Safety Code 11370.1 HS makes it a crime to be in the possession of a controlled substance while at the same time being armed with an operable firearm.
2. Penalties
Possession of a controlled substance while armed is a California felony punishable by:
- 2, 3, or 4 years in California State Prison and/or
- A fine of up to $10,000.15
A conviction makes you ineligible for drug diversion under Prop 36 or 1000 PC. However, you may be eligible for felony (formal) probation instead of state prison.
If you receive felony probation, you will spend at most one year in county jail. You will be also be under court supervision for three to five years. During this time, you will be subject to strict conditions, such as:
- Drug counseling or treatment,
- Drug testing,
- Payment of a fine,
- Meetings with a probation officer,
- Searches of your person and/or premises with or without a warrant,
- Community labor or service (such as Caltrans roadside work),
- The requirement that you not use drugs or break any more laws, and/or
- Any other reasonable conditions the court imposes.
If you violate any of these conditions, the judge can revoke your probation and send you to prison or jail.16
3. Defenses
Here at Shouse Law Group, we have represented literally thousands of people charged with crimes involving drugs and firearms, including HS 11370.1. In our experience, the following six defenses have proven very effective with prosecutors, judges, and juries at getting these cases reduced or dismissed.
- The drugs were not yours,
- You did not know the drugs were there,
- You knew the drugs were there, but you did not know they were drugs,
- The gun was not loaded,
- You did not know the gun was there,
- The drugs and gun were discovered during an illegal search by the police.
A “controlled substance” is a drug or chemical whose manufacture, possession and use are regulated by the government.
4. Related Crimes
- 11550 HS – Being Under the Influence of a Controlled Substance
- 11350 HS – Possession of a Controlled Substance
- 11351 HS – Possession of a Controlled Substance for Sale
- 11352 HS – Selling or Transporting a Controlled Substances
- 25400 PC – Carrying a Concealed Firearm
- 25850 PC – Carrying a Loaded Firearm
- 26350 PC – Openly Carrying an Unloaded Firearm
Additional Resources
If you or a loved one is struggling with addiction, refer to the following:
- Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
- Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
- Recovery Village – Support group for families of people struggling with drug addiction.
- Drug Addiction – Mayo Clinic article on diagnosing Substance Use Disorder.
- I Need Help With Drug Addiction – Resources provided by Recovery Centers of America.
Legal References:
- California Health and Safety Code 11370.1(a) HS.
Notwithstanding Section 11350 or 11377 or any other provision of law, every person who unlawfully possesses any amount of a substance containing cocaine base, a substance containing cocaine, a substance containing heroin, a substance containing methamphetamine, a substance containing fentanyl, a crystalline substance containing phencyclidine, a liquid substance containing phencyclidine, plant material containing phencyclidine, or a hand-rolled cigarette treated with phencyclidine while armed with a loaded, operable firearm is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years.
(b) Subdivision (a) does not apply to any person lawfully possessing fentanyl, including with a valid prescription.
(c) As used in subdivision (a), “armed with” means having available for immediate offensive or defensive use.
(d) Any person who is convicted under this section shall be ineligible for diversion or deferred entry of judgment under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code
Proposition 36. See also, for example, People v. Allen (Cal. App. 4th Dist. 2023) 96 Cal. App. 5th 573. - Same. California Health and Safety Code 11401 HS. See also People v. Davis (2013) 57 Cal.4th 353 (“In 1988, the Legislature… found that controlled substance laws were being circumvented by the use of analogs… ‘These analogs present grave dangers to the health and safety of the people of this state. Therefore, it is the intent of the Legislature that a controlled substance analog … be considered identical, for purposes of the penalties and punishment … to the controlled substance in Section 11054 or 11055 of which it is an analog.’ (§ 11400.)”).
- People v. Williams (2009) 170 Cal.App.4th 587, review denied. (“[A] violation of Health and Safety Code section 11377, subdivision (a) [simple possession], is not a lesser included offense of a violation of Health and Safety Code section 11370.1, because 11377 contains different lists of substances”). See also People v. Sosa (2012) 210 Cal.App.4th 946, review denied. (“Possession of cocaine is not lesser included offense of possession of cocaine while armed, and thus the offenses are not subject to the bar against multiple convictions in the same proceeding, since the lists of controlled substances prohibited by the two statutes differ.”).
- Same.
- CALCRIM 2303, endnote 1. See also People 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 [citations]”).
- CALCRIM 2303, endnote 1.
- See same: A usable amount is a quantity that is enough to be used by someone as a narcotic drug. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.
- Same. See also CALCRIM 2303: A firearm is any device designed to be used as a weapon, from which a projectile is expelled or discharged through a barrel by the force of an explosion or other form of combustion. See also People v. Singh (2004) 119 Cal.App.4th 905, review denied, habeas corpus denied (“Armed with a firearm means ‘knowingly.’”).
- People v. Superior Court (2014) 225 Cal.App.4th 979 (“In order to be ‘armed’ within the meaning of these statutes, a defendant need not physically carry the firearm on his or her person. [citations]”).
- People v. Clark (1996) 45 Cal.App.4th 1147 (“[A] firearm is ‘loaded’ when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not ‘loaded’ if the shell or cartridge is stored elsewhere and not yet placed in a firing position.”).
- Same.
- CALCRIM 2303, endnote 1. People v. Heath (2005) 134 Cal.App.4th 490, modified on denial of rehearing, review denied (holding that while you must knowingly possess the firearm, knowledge that the firearm is loaded and operable is not an element of section 11370.1(a)).
- CALCRIM 2303, endnote 1. [The People do not need to prove that the defendant knew hich specific controlled substance (he/she) possessed.].
- See People v. Horn (1960)187 Cal.App.2d 68 (“In order to prove knowledge of the character of the narcotic, the prosecution, according to the decisions, may introduce evidence of crimes of a similar nature… While appellant’s prior addiction and use of narcotics would not be relevant to the issue of whether or not he possessed narcotics [in the instant case], such evidence would relate to appellant’s knowledge of the nature of narcotics.”)
- California Health and Safety Code 11370.1(a) HS, endnote 1.
- Prop. 36 (the Substance Abuse and Crime Prevention Act of 2000) is codified in California Penal Code 1210–1210.1 PC. See also, In re Ogea (2004) 121 Cal.App.4th 974, as modified (“[A] ‘nonviolent drug possession offense’ as used and defined in Proposition 36 does not include a conviction under Health and Safety Code section 11370.1 because it is not ‘unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance.’”). California Health and Safety Code 11370.1(b) HS: Any person who is convicted under this section shall be ineligible for diversion or deferred entry of judgment [“DEJ”] under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code. California Penal Code 1203 PC.