California Health and Safety Code 11379.6 HS makes it a crime to manufacture, compound, convert, produce, derive, process, or prepare (either directly or indirectly) any controlled substance.
This section applies to narcotics such as
- cocaine, and
A violation is a felony punishable by 3, 5 or 7 years in jail or prison.
- operating a methamphetamine “meth lab”
- mixing “precursor” chemicals that are used to make other narcotics
- making hashish in a garage
You can raise a legal defense to fight drug manufacturing charges under this statute. Some defenses to this drug crime include showing that:
- your actions were only preparatory in nature, and did not amount to “manufacturing,”
- you were arrested after an unlawful search and seizure,
- law enforcement engaged in illegal entrapment,
- you did not participate in making the drugs, or
- you were the victim of mistaken identity.
Manufacture of a controlled substance is punishable by:
- custody in state prison for a sentencing range of 3, 5 or 7 years, and/or
- a maximum fine of $50,000.
A judge can award felony (or formal) probation in lieu of jail time.
Our California criminal defense attorneys will answer the following key questions in this article:
- 1. What is the crime of manufacturing a controlled substance?
- 2. How can a defense attorney fight these charges?
- 3. What happens if I am convicted of 11379.6 HS?
- 4. Will this lead to deportation?
- 5. Can I get a conviction expunged?
- 6. Does a conviction affect gun rights?
- 7. Are there related offenses?
- 7.1. Possession for sale of a controlled substance – HS 11351
- 7.2. Sale of a controlled substance – HS 11352
- 7.3. Operating a drug house – HS 11366
- 7.4. Renting a space for the distribution of a controlled substance – HS 11366.5
- 7.5. Possessing materials for the manufacturing of controlled substances – HS 11383
1. What is the crime of manufacturing a controlled substance?
A prosecutor has to prove the following in order to convict you under this statute:
- you manufactured, compounded, produced, or prepared a narcotic, and
- you knew of the substance’s nature as a narcotic.1
A “controlled substance” is one that is regulated under the United States “Controlled Substances Act.” It does not matter whether the type of drug is schedule I, schedule II, schedule III, schedule IV, or schedule V. Some examples include:
- LSD, and
As to knowledge, a prosecutor must prove that you knew that the drug you were making was in fact a controlled substance.
But it is not necessary for a D.A. to prove that you knew which speciﬁc controlled substance was involved. The prosecutor only has to show that you were aware that it was a controlled substance.2
Further, you do not have to complete the process of making a drug to be guilty. You are guilty if the D.A. can prove that you:
- knowingly participated in the process of producing a narcotic, and
- this participation was at the beginning or intermediate steps of the operation.3
Example: Juan and some friends are halfway finished making heroin in his garage when Juan has to run out of town. While gone, the police raid the garage and arrest the friends, who eventually rat out Juan.
Juan argues he was not present for the final part of the manufacturing process. However, he is guilty because he knowingly joined the early stages of manufacturing.
2. How can a defense attorney fight these charges?
Defense lawyers draw on several legal strategies in attacking a charge of manufacturing a controlled substance. These include showing that:
- you only took preparatory acts in the manufacturing process.
- you were arrested after an unlawful search and seizure.
- you were put in custody after an entrapment.
- you did not participate in making the drugs.
- you were the victim of mistaken identity.
2.1. Only preparatory acts
You must actually begin the manufacturing process to be guilty of this crime. While you do not have to complete the process, some act of beginning the process is required.
The mere preparation for making a drug is not a wrongful act. This means it is a defense for you to say that you only prepared in making a substance.
2.2. Unlawful search and seizure
Authorities can only search for and/or seize property via a legal warrant. If no warrant, then they must have a valid excuse for not having one.
If authorities obtain evidence without these, then that evidence can get excluded from a case. This means that any charges in the case could get reduced or even dismissed.
Many HS 11379.6 cases involve undercover “stings”, which are legal. Though charges must be dropped if the police crossed the line into entrapment.
Entrapment applies to overbearing official conduct on the part of police officers. Entrapment includes authorities using:
- flattery, or
to persuade you to commit an offense.
Entrapment is a valid defense provided that you can show that:
- you committed an illegal act, and
- you only did so because of the entrapment.
2.4. No participation
If you were merely present at the manufacturing site – but did not help to make the drugs – then HS 11379.6 charges do not apply. Being at the wrong place at the wrong time is not a crime.
2.5. Mistaken ID
Perhaps you were wrongly picked out of a lineup. Or perhaps the police mistook you for the real culprit. There are many ways we can raise a reasonable doubt as to your guilt by claiming mistaken ID.
3. What happens if I am convicted of 11379.6 HS?
A violation of this law is a felony drug crime.
The offense is punishable by:
- custody in state prison for 3, 5 or 7 years, and/or
- a maximum fine of $50,000.4
Note that the larger the amount of drugs, the longer the sentence (in general).5
4. Will this lead to deportation?
The manufacturing of a controlled substance will have negative immigration consequences.
A crime under this statute is a crime involving moral turpitude.6
“Crimes involving moral turpitude” can result in a non-citizen being either:
- deported, or
- marked as inadmissible.
Further, the manufacturing of a narcotic is an aggravated felony under California law.7 Deportation for an aggravated felony is mandatory.
Also, certain types of relief are unavailable following an aggravated felony conviction, including:
- cancellation of removal under 8 U.S.C. § 1229b(a)(3),
- asylum relief, and
- I-212 hardship waivers / permission to re-apply for admission to the U.S. after deportation.
For a more detailed discussion, please see our article on the immigration consequences of drug convictions.
5. Can I get a conviction expunged?
After a 11379.6 HS conviction, you cannot get an expungement.
Expungements are not available for crimes that result in a prison sentence.
6. Does a conviction affect gun rights?
You will lose your gun rights if you get convicted under this statute.
A convicted felon is prohibited from buying or owning a gun under California law.
Since making a drug is a felony, a conviction for this crime will result in a loss of gun rights.
7. Are there related offenses?
There are five crimes related to manufacturing a narcotic. These are:
- possession for sale of a narcotic – HS 11351,
- sale of a narcotic – HS 11352,
- operating a drug house – HS 11366,
- renting a space for the distribution of a narcotic – HS 11366.5, and
- possessing materials for the manufacturing of narcotics – HS 11383.
7.1. Possession for sale of a controlled substance – HS 11351
Health and Safety Code 11351 is the California statute that makes it a crime to:
- possess certain narcotics, and
- do so in order to sell them.
Note that “controlled substances” include the same substances as under HS 11379.6.
7.2. Sale of a controlled substance – HS 11352
Health and Safety Code 11352 HS prohibits selling or transporting certain drugs. Examples include:
- heroin, and
HS 11352 does not apply to the sale and transport of:
- marijuana, or
7.3. Operating a drug house – HS 11366
Health & Safety Code 11366 HS makes it a crime to:
- operate or maintain a place, room, or building, and
- do so for the purpose of unlawfully selling or giving away illegal drugs.
Note that a “drug house” is not necessary for a conviction under HS 11379.6.
7.4. Renting a space for the distribution of a controlled substance – HS 11366.5
Health and Safety Code 11366.5 HS makes it a crime to:
- rent or lease a space, room, or building, and
- do so for the purpose of manufacturing or distributing a drug.
In order to be guilty of this crime, you must know that the drugs would be sold or distributed.8
7.5. Possessing materials for the manufacturing of controlled substances – HS 11383
Health and Safety Code 11383 HS makes it a crime to:
- possess certain chemicals, and
- do so with the intent to use those materials to manufacture drugs.
This statute punishes the actual possession of a controlled substance more than the manufacturing of it.
For additional help…
- CALCRIM No. 2330 – Manufacturing a Narcotic. Judicial Council of California Criminal Jury Instructions (2017 edition). The language of the statute reads:11379.6. (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 when an enhancement pursuant to Section 11379.7 is pled and proved, the fact that a violation of this section involving methamphetamine occurred within 200 feet of an occupied residence or any structure where another person was present at the time the offense was committed may be considered a factor in aggravation by the sentencing court.
(d) The fact that a violation of this section involving the use of a volatile solvent to chemically extract concentrated cannabis occurred within 300 feet of an occupied residence or any structure where another person was present at the time the offense was committed may be considered a factor in aggravation by the sentencing court.
(e) 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.
(f) 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.
- See same.
- See same. See also People v. Jackson (1990) 218 Cal.App.3d 1493; People v. Lancellotti (1993) 19 Cal.App.4th 809; People v. Heath (1998) 66 Cal.App.4th 697; People v. Pierson (2000) 86 Cal.App.4th 983; People v. Coria (1999) 21 Cal.4th 868.
- California Health and Safety Code 11379.6 HS.
- People v. Hard (2003) 109 Cal.App.4th 140.
- See People v. Castro (1985) 38 C.3d 301. While this case applies to the possession of a narcotic, a court would likely extend it to the manufacturing of a drug.
- INA § 101(a)(43(B); 8 USC § 1101(a)(43(B).
- See also People v. Sanchez (1994) 27 Cal.App.4th 918, 923; People v. Glenos (1992) 7 Cal.App.4th 1201, 1208.