Health & Safety Code 11379.6 HS – Manufacturing a Controlled Substance

Health and Safety Code 11379.6 HS is the California statute that makes it a crime for a person to manufacture a controlled substance. This section applies to narcotics such as ecstasy, heroin, cocaine, and opiates. A violation is a felony punishable by 3, 5 or 7 years in jail or prison.

11379.6(a) HS states that “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… [is guilty of a crime]”.

Examples

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

Defenses

A defendant can raise a legal defense to fight drug manufacturing charges under this statute. Some defenses to this drug crime include the accused showing that:

• his/her actions were only preparatory in nature, and did not amount to “manufacturing,”
• he/she was arrested after an unlawful search and seizure, and
• law enforcement engaged in illegal entrapment.

Penalties

A violation of this state law is a felony offense. This is opposed to a California misdemeanor or an infraction.

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?
  • 2.1. Only preparatory acts
  • 2.2. Unlawful search and seizure
  • 2.3. Entrapment
• 3. What happens if a person is convicted of 11379.6 HS?
• 4. Will this lead to deportation?
• 5. Can a person 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 a person under this statute:

1. the defendant manufactured, compounded, produced, or prepared a narcotic, and
2. the defendant 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 an accused knew that the drug he was making was in fact a controlled substance.

But it is not necessary for a D.A. to prove that the defendant knew which specific controlled substance was involved. The prosecutor only has to show that the accused was aware that it was a controlled substance.²

Further, a defendant does not have to complete the process of making a drug for guilt. An accused is guilty if the D.A. can prove that the defendant:

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 making white heroin in his garage. They are about half-way finished with the process when Juan has to run out of town. While gone, the police raid the garage and arrest the friends, who eventually rat out Juan. In defense, Juan says that he is innocent since he was not involved in the final manufacturing of the drug.

In this scenario, Juan does not have a valid defense. A defendant is guilty by just knowingly joining in the early stages of manufacturing. Juan is likely guilty since he was involved in about half of the operation.

Also assume that one of the friends thought the group was making cocaine instead of white heroin and he tries to use this to avoid guilt. The defense will not work since a person is guilty even if he/she does not know the specific drug that he/she is making. The accused just needs to know that it is some narcotic.

2. How can a defense attorney fight these charges?

Defense lawyers draw on several legal strategies in attacking charges under these laws. These include showing that:

1. the defendant only took preparatory acts in the manufacturing process.
2. the accused was arrested after an unlawful search and seizure.
3. the defendant was put in custody after an entrapment.

2.1. Only preparatory acts

A defendant must actually begin in the manufacturing process to be guilty of this crime. While he/she does 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 an accused to say that he/she only prepared in making a substance.

2.2. Unlawful search and seizure

Suspects are often arrested for this crime after police gather evidence without a warrant.

But 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.

2.3. Entrapment

In many HS 11379.6 cases, suspects get arrested in undercover “stings.” Any later charges, though, must get dropped if an officer lured a person into committing a crime.

This “luring” is known as entrapment. It applies to overbearing official conduct on the part of police officers. Entrapment includes authorities using:

• pressure,
• harassment,
• fraud,
• flattery, or
• threats to persuade a person to commit an offense.

Entrapment is a valid defense provided that defendants can show that:

1. they committed an illegal act, and
2. they only did so because of the entrapment.

3. What happens if a person is 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 persons that produce larger volumes of a substance will receive larger prison sentences.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 for drug convictions.

5. Can a person get a conviction expunged?

A person convicted under this statute cannot get an expungement.

Note that an expungement is favorable since it erases many of the hardships of a conviction.

But expungements are not available for crimes that result in a prison sentence.

6. Does a conviction affect gun rights?

A defendant will lose his gun rights if he gets 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 of 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:

1. possession for sale of a narcotic – HS 11351,
2. sale of a narcotic – HS 11352,
3. operating a drug house – HS 11366,
4. renting a space for the distribution of a narcotic – HS 11366.5, and
5. 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 for a person to:

1. possess certain narcotics, and
2. 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:

• cocaine,
• heroin, and
• peyote.

HS 11352 does not apply to the sale and transport of:

• marijuana, or
• methamphetamine.

7.3. Operating a drug house – HS 11366

Health & Safety Code 11366 HS makes it a crime for a person to:

1. operate or maintain a place, room, or building, and
2. 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 for a person to:

1. rent or lease a space, room, or building, and
2. do so for the purpose of manufacturing or distributing a drug.

7.5. Possessing materials for the manufacturing of controlled substances – HS 11383

Health and Safety Code 11383 HS makes it is a crime for a person to:

1. possess certain chemicals, and
2. 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.

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