§ 11379.6 HS – Manufacturing a Controlled Substance

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. A violation is a felony punishable by 3, 5 or 7 years in jail or prison.

Examples

• operating a methamphetamine “meth lab”
• mixing “precursor” chemicals that are used to make other narcotics
• making hashish in a garage

Common Defenses

Our law firm has found that the following six defenses have been very persuasive when negotiating with prosecutors to get HS 11379.6 charges dismissed:

1. your actions were only preparatory in nature, and did not amount to “manufacturing,”
2. you were arrested after an unlawful search and seizure,
3. law enforcement engaged in illegal entrapment,
4. you did not participate in making the drugs,
5. you were the victim of mistaken identity, or
6. you did not know what you were making was illegal.

Penalties

Manufacturing a controlled substance is a felony offense. This is opposed to a California misdemeanor or an infraction.

Penalties include:

• 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 does it mean to “manufacture” a controlled substance?
• 2. How can a defense attorney fight these charges?
  • 2.1. Only preparatory acts
  • 2.2. Unlawful search and seizure
  • 2.3. Entrapment
  • 2.4. No participation
  • 2.5. Mistaken ID
  • 2.6. Lack of knowledge
• 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?

1. What does it mean to “manufacture” a controlled substance?

A prosecutor has to prove the following in order to convict you under this statute:

1. you manufactured, compounded, produced, or prepared a narcotic (or offered to do so), and
2. 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:

• ecstasy,
• heroin,
• cocaine,
• marijuana,
• PCP,
• LSD, and
• methamphetamines.

As to knowledge, a prosecutor must prove that you knew that the drug you were making was in fact a controlled substance.

Though 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:

1. knowingly participated in the process of producing a narcotic, and
2. 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?

2.1. Your actions were only “preparatory”

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.

Therefore, we could argue that you only prepared in making a substance, which is not an illegal act. Typical evidence we gather to prove you never began the manufacturing process may include eyewitness accounts, video surveillance footage, and forensic reports by experts.

2.2. The police made an 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.

Whenever authorities find evidence without these, we file a motion to suppress asking the judge to exclude all the police’s illegally-obtained evidence. In our experience, getting drug evidence suppressed can lead to the D.A. reducing or even dismissing the charges.

2.3. The police entrapped you

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 occurs when police pressure you into committing a crime you were not predisposed to commit. Therefore, we pore over the officer’s bodycam/audio recordings to show that their words and/or actions placed you under duress and practically forced you to manufacture the drugs.

Law enforcement makes mistakes all the time, and our legal team – which includes former police officers – knows what to look for when determining whether entrapment took place.

2.4. You didn’t take part in the manufacturing

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.

To show that you were not participating, we would amass any available evidence such as video recordings or eyewitness accounts. If we can show the D.A. there is a reasonable doubt, they may drop the case with no trial.

2.5. You were misidentified

Perhaps you were wrongly picked out of a lineup. Or perhaps the police mistook you for the real culprit.

Mistaken ID is one of the most effective defenses we levy against prosecutors. Numerous studies exist that show police protocols often yield inaccurate results, and we can often impeach the credibility of everyone involved in falsely identifying you.

2.6. You were not aware of what was going on

If you genuinely did not know you were making an illegal substance, then you did not violate HS 11379.6. To show that you had no knowledge you were making drugs, we would look for evidence of your intentions in your recorded communications (such as text messages and voicemails).

Plus if we can show that the drugs that were made resembled a legal substance you believed you were making, that could raise a reasonable doubt that may compel the state to drop the charges.

3. What happens if I am convicted of 11379.6 HS?

Violating 11379.6 HS is a felony carrying:

• custody in state prison for 3, 5 or 7 years, and/or
• a maximum fine of $50,000.⁴

Aggravating factors that could cause the judge to impose a sentence on the higher end of the penalty range include:

• the quantity of drugs was large;
• there was a child under 16 living in the place where the drugs were made;
• you have a criminal history of certain drug offenses; or
• someone was seriously hurt or died. ⁵

The judge has the discretion to impose probation and/or jail instead of prison time.

(Note that diversion through Proposition 36 or PC 1000’s Deferred Entry of Judgment program is typically not available in these cases.)

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. This is because expungements are not available for crimes that result in a prison sentence.

6. Does a conviction affect gun rights?

Yes. Since a convicted felon is prohibited from buying or owning a gun under California law, a felony conviction for making drugs will result in a loss of gun rights.

7. Are there related offenses?

• Possession of a controlled substance – HS 11350
• Possession for sale of a controlled substance – HS 11351
• Sale of a controlled substance – HS 11352
• Possession of marijuana – HS 11357
• Cultivation of marijuana – HS 11358
• Possession for sale of marijuana – HS 11359
• Sale of a controlled substance – HS 11360
• Possession of drug paraphernalia – HS 11364
• Operating a drug house – HS 11366
• Renting a space for the distribution of a controlled substance – HS 11366.5 ⁸
• Money laundering from drug proceeds – HS 11370.9
• Possession of methamphetamine – HS 11377
• Possessing materials for the manufacturing of controlled substances – HS 11383

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