CA HSC 11350
Possession of a Controlled Substance
California Health & Safety Code 11350
The attached writing sample is one regarding the basic components of California Health & Safety Code 11350 – Possession of a Controlled Substance. Some of the information was prepared while I was serving as an intern for the Internal Vice President’s Office at UCLA in the Fall quarter of 2014. There, I had helped spread awareness to, promote, educate, inform, and rally student voters to participate in the statewide ballot measure elections in California and proactively vote in favor for the passing of Proposition 47. The message spread was one in which the proposition would aim to change low-level, nonviolent drug possession crimes from felonies to misdemeanors to redirect the state’s spending towards K-12 education, mental health treatment services, and drug rehabilitation programs.
California Health & Safety Code 11350 HS – Possession of a Controlled Substance
1) Any controlled substance specified in the subdivision of opiates and opium derivatives, substances having a stimulant effect on the central nervous system (including cocaine base substances), and any hallucinogenic substance
(2) Any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state.
Common Types of Drugs
HS 11054 –Schedule I including, but not limited to:
- Opiates and all of their derivatives[ii]
- Heroin (diacetylmorphine)
- Hallucinogenic substances
- Lysergic acid diethylamide (LSD)
- MDMA, or “ecstasy” (3,4-methylenedioxymethamphetamine)
- Mescaline (Peyote)
- Psilocybin and Psilocin
- DMT (dimethyltryptamine)
HS 11055 – Schedule II including, but not limited to:
- Raw opium
- Including, but not limited to:
- Amphetamine mixed salts (Adderall, Dexedrine)
- Including, but not limited to:
HS 11056 – Schedule III including, but not limited to:
- Anabolic steroids
What is Possession?
When being charged for Possession of a Controlled Substance, the prosecutor, who has the burden of proof in any case, will need to prove that you “possessed” the controlled substance by any of three ways:
- Actual Possession – This can be demonstrated when the drug enforcement agent has physically found a controlled substance on the person (for example, in a pocket, bag, concealed in clothing/body).
- Constructive possession – This can be demonstrated when a controlled substance is found in an area or item that remains to be in a location over which the person exercises control (for example, a closet in a bedroom, a bag checked onto an airplane).
- Joint possession – This can be established when it can be shown that more than one person(s) both actually or constructively possessed a controlled substance (for example, two friends are both found sharing a pipe or a drug is found in a room shared by roommates).
But what if __________?
Some important factors to consider are that the prosecutor must demonstrate certain key points:
- The defendant intended to possess the controlled substance
- The controlled substance was not forced upon the defendant or unknown to the defendant
- The defendant knew what was possessed was a controlled substance
- The possession was voluntary
- There must be a considerably “usable” amount of a substance for it to be used to “control” or alter one’s state of being[v]
- Evidence was gathered lawfully[vi]
If any of these key factors are compromised, then the charges may either be dismissed or the attorney can negotiate a disposition with the prosecutor and judge that would entail a dismissal.
So… Now what?
A person convicted under Health and Safety Code 11350 may face the following consequences:
- Up to $1,000 in fines
- Up to 1 year in county jail
- Possible deportation
- Up to one year in county jail followed by probation
- 16 months, 2 years, or 3 years in state prison followed by parole[viii]
The approval of California Proposition 47
Ever since the establishment of “The Controlled Substance Act” in 1970, HS 11350 was considered a felony at the maximum penalty for ALL defendants. However, on November 4th 2014, Proposition 47 (officially titled as Criminal Sentences. Misdemeanor Penalties. Initiative Statute) would appear on the statewide ballot, aiming to “amend the state Penal Code to reclassify certain drug and property crimes as misdemeanors and allow people previously convicted of these crimes to be resentenced.[ix]”
Additionally, Proposition 47 would invest state criminal justice savings resulting from these sentencing changes in drug and mental health treatment, as well as in victim services and programs designed to improve outcomes for K-12 public school students.
Prior to November 2014, crimes in California were classified into three types – felonies, misdemeanors, and infractions – according to the seriousness of the offense with corresponding penalties. But as the referendum was passed by voters by a majority vote of 59.61%-40.39% taking into effect beginning November 5th 2014, the state Penal Code would thus be amended to reclassify and reduce categories of nonviolent drug crimes from felonies to misdemeanors unless the individual has a prior conviction for a serious and/or violent offense, as specified by the measure, or for any registerable sex offense.
This new and approved Initiative not only reduces the classification of drug possession crimes but also mandates misdemeanor charges instead of felonies given that the defendant has no prior convictions for murder, rape, sex offenses or gun crimes.
For convicts currently serving a prison sentence for any of the controlled substance offenses that the Proposition reduces to misdemeanors, the Proposition now permits a fair re-sentencing for the once convicted in order to reduce their convictions to misdemeanors.[x] This would consequently lead to a less crowded and depopulated prison population, conserving more state funds from the decrease in inmates, and more opportunities for parole officers and rehabilitation programs.
The goal of Proposition intends to create a “Safe Neighborhoods and Schools Fund,” accumulating appropriations based on savings accrued by the State during the fiscal year, as compared to the previous fiscal year, estimating $150 million to $250 million per year. These funds would then be distributed as follows: 25 percent to the Department of Education, 10 percent to the Victim Compensation and Government Claims Board, and 65 percent to the Board of State and Community Correction.[xi] In other words, the State aims to promote and prioritize education before incarceration.
[i] California Health and Safety Code 11350 HS -- Possession of controlled substances. ("(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b), (c), (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in a county jail for not more than one year, except that such person shall instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code. (b) Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a), the judge may, in addition to any punishment provided for pursuant to subdivision (a), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant' s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (c) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered: (1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service. (2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service. (3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine.")
[ii] Unless specifically excepted or unless listed in another schedule, any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers whenever the existence of those isomers, esters, ethers, and salts is possible within the specific chemical designation [HS 1054(b)]
[iii] Tetrahydrocannabinol (THC, marijuana) is still considered a Schedule 1 drug by the DEA, even though some U.S. states have legalized marijuana for personal, recreational use or for medical use.
[iv] Produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis
[v] For example, for the purposes of prosecution and conviction, mere residue or scrapings of a controlled substance from the inside of a pipe or container will more often than not be enough for the prosecution to achieve a conviction
[vi] Unless a search is (1) authorized by your consent, (2) incident to a lawful arrest, or (3) under some other recognized exception, it must be executed pursuant to a valid California search warrant. If you were arrested for possession of methamphetamines...and the police found the drugs without a search warrant, be sure to consult with an experienced California drug crimes defense attorney.
[vii] Only in the case of sexually violent and/or repeated offenders. See “Proposition 47” for more information.
[viii] (h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.
[ix] California Budget Project. http://www.cbp.org/pdfs/2014/140909_Proposition_47_BB.pdf
[x] Penal Code 1170.18 PC – Petition for recall of sentence; resentencing procedures; reduction of felonies to misdemeanors. (“(a) A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (“this act”) [Proposition 47] had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350 [possession of a controlled substance], 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act. (b) Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor pursuant to Sections 11350 [possession of a controlled substance], 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, those sections have been amended or added by this act, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.)
[xi] See California Budget Report.