Under Health & Safety Code 11383 & 11383.5 HS, it is a crime to possess certain chemicals with the intent to use those materials to manufacture controlled substances.1
The controlled substances to which HS 11383 and 11383.5 apply are:
HS 11383 & 11383.5 — possessing materials for manufacturing drugs
To prove you guilty of HS 11383 or HS 11383.5, the prosecutor must prove two “elements” of the crime:
- You possessed certain chemicals in specified combinations that can be used to manufacture either PCP or methamphetamine (or an analog of one of those drugs); and
- When you possessed those materials, you specifically intended to use them to manufacture one of those drugs.3
What drugs do HS 11383 & 11383.5 apply to?
California Health & Safety Code 11383 and 11383.5 list the various chemicals, combinations of chemicals and isomers that can support a charge of possession of drug manufacture materials. These include:
- Piperidine and cyclohexanone (which can be used to manufacture PCP);
- Methylamine and phenyl-2-propoanone (which can be used to manufacture meth); and
- Ephedrine or the common cough and cold medicine pseudoephedrine (which can be used to manufacture methamphetamine).4
Example: The federal government tightly regulates the sale of medicines containing pseudoephedrine in the United States. But Nikolai, who is from Russia, has connections in Kazakhstan who can help him obtain large amounts of those medicines in that country.
Nikolai’s connections get the pseudoephedrine to his home in California. Nikolai stores it in a shed and plans to contact a methamphetamine manufacturer in the area to see if he would be interested in purchasing it. But he is arrested before he can make this contact.
Nikolai is guilty of possession of materials for the manufacture of controlled substances—even though the pseudoephedrine was never used to manufacture methamphetamine.
What does it mean to “possess” materials for manufacturing drugs?
You can “possess” materials for manufacturing drugs even if you never personally hold or touch them. All that is required is that you have control over the materials or the right to control them, either personally or through someone else.5
Example: Let’s return to our example of Nikolai above.
Let’s say that Nikolai arranges for the purchase of pseudoephedrine in Kazakhstan and has it delivered to California.
But it is not delivered to him. Instead, it is sent to his elderly, senile mother and is stored in a garage on her property. Nikolai has never seen or handled it when he is arrested.
Nikolai can still be convicted of possessing the chemical with intent to use it to manufacture methamphetamine.
According to Los Angeles drug crimes defense attorney Elisa Guadan6:
“One of the toughest things about Health & Safety Code 11383 and 11383.5 is that you do not need to have actually manufactured meth or PCP to be guilty of this crime. You don’t even need to have realistically had the ability to manufacture a controlled substance. You can be guilty of this offense just for possessing the chemicals and harboring a very vague hope of using them to manufacture drugs.”
Example: Paul is a homeless man. He has severe mental health problems that have been made worse by years of drug use.
Paul has wild dreams of becoming a multimillionaire through an elaborate enterprise in which he manufactures methamphetamine and sells it out of his own drug house.
Paul manages to come into possession of some of the chemicals listed in Health & Safety Code 11383.5. His intent is to use these to put his “business plan” into effect. But in reality Paul does not have the mental or logistical ability to pull this off.
Technically, Paul is still guilty of possessing materials for the manufacture of controlled substances.
Penalties & punishment for HS 11383 & 11383.5
Possessing chemicals for manufacturing controlled substances is a California felony.7
Consequences under HS 11383 and 11383.5 can include:
- Felony (formal) probation;
- Two (2), four (4) or six (6) years served in county jail under California’s realignment program; and/or
- A fine of up to ten thousand dollars ($10,000).8
In addition, you will receive:
- An additional and consecutive two (2)-year sentence if you possess the materials for making PCP or methamphetamine in a structure where any child under sixteen (16) is present; and
- An additional and consecutive five (5)-year sentence if your possession of these chemicals causes any child under 16 to suffer great bodily injury.9
Legal defenses to HS 11383 & HS 11383.5 possessing materials for drug manufacture
One of the most common legal defenses against HS 11383 or 11383.5 charges is that police obtained evidence in violation of California’s search and seizure laws—for example, by entering the area where the materials were stored without a valid search warrant, or by searching outside the area covered by a warrant.
Depending on the circumstances, you may also be able to argue that:
- You did not know the nature of the materials you possessed;
- You were not the person who actually possessed/controlled the chemicals; and/or
- You lacked criminal intent to use those materials to manufacture controlled substances.
Call us for help…
For questions about the crime of Health & Safety Code 11383 & 11383.5 possession of materials for the manufacture of controlled substances, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Legal References:
1 Health & Safety Code 11383 HS – Possession with intent to manufacture phencyclidine (PCP) or any of its analogs; punishment. (“(a) Any person who possesses at the same time any of the following combinations, a combination product thereof, or possesses any compound or mixture containing the chemicals listed in the following combinations, with the intent to manufacture phencyclidine (PCP) or any of its analogs specified in subdivision (d) of Section 11054 or subdivision (e) of Section 11055, is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, four, or six years: (1) Piperidine and cyclohexanone. (2) Pyrrolidine and cyclohexanone. (3) Morpholine and cyclohexanone. (b) Any person who possesses the optical, positional, or geometric isomer of any of the compounds listed in this section, with the intent to manufacture these controlled substances is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, four, or six years: (1) Phencyclidine (PCP). (2) Any analog of PCP specified in subdivision (d) of Section 11054, or in subdivision (e) of Section 11055. (c) Any person who possesses any compound or mixture containing piperidine, cyclohexanone, pyrrolidine, morpholine, 1-phenylcyclohexylamine (PCA), 1-piperidinocyclohexanecarbonitrile (PCC), or phenylmagnesium bromide (PMB) with the intent to manufacture phencyclidine, is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, four, or six years. (d) Any person who possesses immediate precursors sufficient for the manufacture of piperidine, cyclohexanone, pyrrolidine, morpholine, or phenylmagnesium bromide (PMB) with the intent to manufacture phencyclidine, is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, four, or six years. (e) This section does not apply to drug manufacturers licensed by this state or persons authorized by regulation of the Board of Pharmacy to possess those substances or combinations of substances.”)
Health & Safety Code 11383.5 HS – Possession with intent to manufacture methamphetamine or N-ethylamphetamine; punishment. (“(a) Any person who possesses both methylamine and phenyl-2-propanone (phenylacetone) at the same time with the intent to manufacture methamphetamine, or who possesses both ethylamine and phenyl-2-propanone (phenylacetone) at the same time with the intent to manufacture N-ethylamphetamine, is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, four, or six years. (b)(1) Any person who, with the intent to manufacture methamphetamine or any of its analogs specified in subdivision (d) of Section 11055, possesses ephedrine or pseudoephedrine, or any salts, isomers, or salts of isomers of ephedrine or pseudoephedrine, or who possesses a substance containing ephedrine or pseudoephedrine, or any salts, isomers, or salts of isomers of ephedrine or pseudoephedrine, or who possesses at the same time any of the following, or a combination product thereof, is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, four, or six years: (A) Ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N- ethylephedrine, N-methylpseudoephedrine, N-ethylpseudoephedrine, or phenylpropanolamine, plus hydriodic acid. (B) Ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N- ethylephedrine, N-methylpseudoephedrine, N-ethylpseudoephedrine, or phenylpropanolamine, thionyl chloride and hydrogen gas. (C) Ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N- ethylephedrine, N-methylpseudoephedrine, N-ethylpseudoephedrine, or phenylpropanolamine, plus phosphorus pentachloride and hydrogen gas. (D) Ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N- ethylephedrine, N-methylpseudoephedrine, N-ethylpseudoephedrine, chloroephedrine and chloropseudoephedrine, or phenylpropanolamine, plus any reducing agent. (2) Any person who, with the intent to manufacture methamphetamine or any of its analogs specified in subdivision (d) of Section 11055, possesses hydriodic acid or a reducing agent or any product containing hydriodic acid or a reducing agent is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, four, or six years. (c) Any person who possesses the optical, positional, or geometric isomer of any of the compounds listed in this section, with the intent to manufacture any of the following controlled substances, is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, four, or six years: (1) Methamphetamine. (2) Any analog of methamphetamine specified in subdivision (d) of Section 11055. (3) N-ethylamphetamine. (d) Any person who possesses immediate precursors sufficient for the manufacture of methylamine, ethylamine, phenyl-2-propanone, ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N-ethylephedrine, phenylpropanolamine, hydriodic acid or a reducing agent, thionyl chloride, or phosphorus pentachloride, with the intent to manufacture methamphetamine, is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, four, or six years. (e) Any person who possesses essential chemicals sufficient to manufacture hydriodic acid or a reducing agent, with the intent to manufacture methamphetamine, is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, four, or six years. (f) Any person who possesses any compound or mixture containing ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N- ethylephedrine, phenylpropanolamine, hydriodic acid or a reducing agent, thionyl chloride, or phosphorus pentachloride, with the intent to manufacture methamphetamine, is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, four, or six years. (g) For purposes of this section, a “reducing agent” for the purposes of manufacturing methamphetamine means an agent that causes reduction to occur by either donating a hydrogen atom to an organic compound or by removing an oxygen atom from an organic compound. (h) This section does not apply to drug manufacturers licensed by this state or persons authorized by regulation of the Board of Pharmacy to possess those substances or combinations of substances.”)
2 Same.
3 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2335 – Possession With Intent to Manufacture Methamphetamine or N-ethylamphetamine (Health & Saf. Code, § 11383.5(a)).
4 Health & Safety Code 11383 HS – Possession with intent to manufacture phencyclidine (PCP) or any of its analogs; punishment, and Health & Safety Code 11383.5 HS – Possession with intent to manufacture methamphetamine or N-ethylamphetamine; punishment, endnote 1 above.
5 CALCRIM 2335 – Possession With Intent to Manufacture Methamphetamine or N-ethylamphetamine (Health & Saf. Code, § 11383.5(a)).
6 Los Angeles drug crimes defense attorney Elisa Guadan is an honors graduate of Western State College of Law in Fullerton. She defends clients accused of drug and other crimes at various courts in Los Angeles and Orange Counties, including Governor George Deukmejian Courthouse in Long Beach, the Compton Courthouse in Compton, and the Central Justice Center in Santa Ana.
7 Health & Safety Code 11383 HS – Possession with intent to manufacture phencyclidine (PCP) or any of its analogs; punishment, and Health & Safety Code 11383.5 HS – Possession with intent to manufacture methamphetamine or N-ethylamphetamine; punishment, endnote 1 above.
8 Same.
See also Penal Code 1170(h) PC – Determinate sentencing.
See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment.
9 Health & Safety Code 11379.7 HS – Convictions for specified violations involving methamphetamine or phencyclidine; structures where underage child present; great bodily injury suffered by underage child; additional punishment.