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    Criminal Defense Division

    § 11377(a) HS – Possession of Methamphetamine

    CA Possession of Methamphetamine (Health & Safety Code 11377)

    California Health & Safety Code § 11377(a) HS makes it a misdemeanor to possess methamphetamine for personal use (“simple possession”). If eligible, you can even get your charges dismissed by completing a diversion treatment program.

    However, simple meth possession can be a felony if you have a prior conviction for a sex crime or other serious offense, as the following table spells out:

    Simple Meth Possession Penalties in California
    Most cases Misdemeanor:  Up to 1 year in jail and/or $1,000
    You have a prior conviction of certain serious crimes specified in PC 667(e)(2)(C)(iv) or PC 290(c) Misdemeanor:  Up to 1 year in jail and/or $1,000

    or

    Felony:  16 months, 2 years, or 3 years in jail and/or $10,000

    Our methamphetamine possession lawyers are skilled when it comes to defending against HS 11377(a) charges. We know the most effective ways to fight California drug charges so that you are not labeled and stigmatized as a “drug offender.” Just some of the defenses we rely on include the following:

    Bubble graph showing six common defenses to California meth possession charges, including that you lacked possession or that the police committed misconduct

    In this article, our California criminal defense attorneys discuss what you need to know about the crime of methamphetamine possession. Click on a topic to jump to that section.

    1. Elements

    In order to convict you of meth possession under Health and Safety Code 11377, the prosecutor must prove the following four “elements” of the jury instructions (CALCRIM 2304):

    1. you possessed methamphetamines;
    2. you knew you possessed the meth;
    3. you knew what you had was a controlled substance (even if you did not know specifically that it was meth); and
    4. there was enough meth to be used as a drug–not merely useless traces or residue.1

    Let us take a closer look at these elements:

    Meaning of “Possession”

    California’s criminal law defines “possession” in three ways:

    1. “Actual” possession: The meth was on your person, meaning you were holding it, or it was in something you were wearing or carrying;
    2. “Constructive” possession: You exercised control over the location where the meth was (either directly or through another person); or
    3. “Joint” possession: You shared actual or constructive possession with one or more other people.2

    Note that simple possession is a less serious crime than possession of methamphetamines with the intent to sell it under Health and Safety Code 11378. The difference between HS 11377 and HS 11378 often comes down to:

    • Your statements. For example, if someone overheard you saying you intended to sell crystal meth, your statements could be used to show you violated HS 11378.
    • The quantity of meth you possessed. The more meth you had, the harder it will be to convince the prosecutor, judge or jury the drugs were only for your personal use.
    • How the meth was packaged. Multiple bindles or baggies might indicate you intended to sell the methamphetamine.
    • Presence of paraphernalia. When the police also find drug paraphernalia such as a pipe, needles or straws for snorting, it can be evidence that the meth was for personal use and not for selling.

    Meaning of “Knowledge”

    For you to be guilty under HS 11377, the prosecutor must prove:

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

    However, you do not need to know the name of a drug or its precise chemical makeup in order to be guilty of methamphetamine possession. It is enough that you know generally that what you have is a controlled substance.3

    Meaning of “Usable Quantity”

    You do not violate Health and Safety Code 11377 unless you have enough meth to:

    • smoke,
    • snort, or
    • swallow, etc.4

    You do not have to possess enough meth to get high. It just means that you must have more than mere residue or traces in order to be guilty of methamphetamine possession under HS 11377.5

    Exception for Medical Professionals

    Medical professionals–such as doctors, pharmacists and veterinarians–do not violate HS 11377 when they possess methamphetamines in accordance with California and federal law.6

    Other Drugs Covered by the Statute

    HS 11377 bans possession of not only methamphetamine but also other stimulants, anabolic steroids, and commonly used “party drugs” such as:

    Simple possession of these drugs carries the same or similar penalties as simple possession of methamphetamine.8

    2. Defenses

    Here at Shouse Law Group, we have represented literally thousands of people facing drug charges such as meth possession. In our experience, the following four defenses have proven effective with prosecutors and judges at getting 11377 HS charges reduced or dismissed.

    1) You Had a Valid Prescription

    No crime occurred if we can show you held a valid prescription for the methamphetamines and possessed only an amount consistent with the prescription’s purpose.

    For evidence we would use your medical records and have forensic experts weigh the meth found by police.

    2) You Never Possessed the Meth

    The D.A. should drop the charges against you if we can show that you never knowingly possessed the meth and that it belonged to someone else. For example, perhaps someone planted the meth on you or left the meth in your house without your knowledge.

    Typical evidence we rely on to raise a “reasonable doubt” as to your knowledge includes surveillance video and eyewitness accounts.

    3) The Police Found the Meth Through an Unlawful Search and Seizure

    For police to conduct a constitutional search of your person or property, they typically need a valid California search warrant supported by probable cause. The only time warrantless searches are legal is if they fall under a valid “exception,” such as:

    • The evidence was in “plain view” of the police;
    • The search was incident to an arrest;
    • You were in a motor vehicle (the “automobile exception”);
    • The police were in “hot pursuit” of you; or
    • There were exigent circumstances.

    In many cases, we can argue to the judge that the search in your case crossed the line and violated your constitutional rights.

    If the judge agrees with us, the judge could then suppress (disregard) all the unlawfully-discovered evidence, such as any meth. This may then leave the D.A. with too weak a case to prosecute you any further.

    4) You Were Lawfully Delivering the Meth or Disposing of It

    California Health & Safety Code 11377 HS says you are not guilty of methamphetamine possession if all of the following are true:

    1. Somebody else had a prescription for the meth;
    2. You possessed the meth at the direction of or with the authorization of that person;
    3. Your only intent was to deliver the crystal meth to the prescription holder or else dispose of it for them in a lawful manner; and
    4. You did not personally use, distribute or sell the meth.9

    In other words, it is a valid defense to methamphetamine possession charges that you were delivering meth to a prescription holder, or disposing of it for them.

    Close-up of inmate win a yellow jumpsuit clasping his cell bars with his hands while the right side of the image shows $100 bills

    A violation of Health & Safety Code 11377a HS can result in a fine and/or jail time

    3. Penalties

    Simple possession of methamphetamine in violation of HS 11377 is usually a California misdemeanor, carrying:

    • Up to 1 year in county jail and/or
    • A fine of up to $1,000.10

    However, possessing meth becomes a wobbler – meaning the D.A. can charge it as a misdemeanor or a felony – if you have a prior conviction for either:

    Felony penalties include:

    • 16 months, 2 years, or 3 years in county jail and/or
    • A fine of up to $10,000.11

    Note that if the weight of the meth exceeds one kilogram, you face an additional three to 15 years in prison.12

    Drug Diversion

    You may be eligible for drug diversion (treatment) instead of jail time for an 11377 HS violation if:

    1. You are a first- or second-time non-violent offender, and
    2. The meth was for your personal use alone.

    “Drug diversion” is an alternative sentencing option that allows a drug abuser to receive drug treatment/rehab instead of jail time. California has three drug diversion programs:

    Drug diversion is not available if you are convicted of or plead guilty to:

    However, if you plead guilty to simple possession as a plea bargain from one of those more serious charges, you may be eligible for drug diversion.

    4. Related Offenses

    Additional Resources

    If you are struggling with substance abuse addiction, you can find help here:

    Legal References:

    1. Health and Safety Code 11377 HS – Possession of methamphetamines. Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2304. People v. Palaschak (1995) 9 Cal.4th 1236.
    2. CALCRIM 2304 — Simple Possession of [Methamphetamines] (Health & Saf. Code, §§ 11350, 11377). People v. Barnes (1997) 57 Cal.App.4th 552. People v. Mower (2002) 28 Cal.4th 457.
    3. People v. Guy (1980) 107 Cal.App.3d 593, 600-601. People v. Horn (1960) 187 Cal.App.2d 68.
    4. People v. Rubacalba (1993) 6 Cal.4th 62, 66. People v. Piper (1971) 19 Cal.App.3d 248.
    5. People v. Leal (1966) 64 Cal.2d 504, 512.
    6. Health and Safety Code 11377 HS – Possession of methamphetamines, endnote 1 above.
    7. Same.
    8. Same.
    9. Same.
    10. Same.
    11. Same.
    12. Health and Safety Code 11370.4 HS — Convictions under specified sections with respect to methamphetamines.

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