California Health & Safety Code 11370.1
HSC 11370.1 – Possession of a Controlled Substance & Armed
Possession of a Controlled Substance & Armed – Table of Contents
- HSC 11370.1 Overview
- HSC 11370.1 Elements
- HSC 11370.1 Sentencing
- HSC 11370.1 Defenses
- HSC 11370.1 Retain Lawyer
Health and Safety Code for Possession of a Controlled Substance & Armed HSC 11370.1 illicit drugs is a crime in and of itself, much like being in possession of a loaded firearm without the proper permits is a crime on its own. However, there is a separate and distinct crime in California if an individual is found to be in possession of both at the same time. California Health and Safety Code Possession of a Controlled Substance & Armed HSC 11370.1 criminalizes the act of being in possession of cocaine, methamphetamine, heroin, or PCP if an individual is also armed with a loaded, operable firearm.
However, while each of these crimes individually can be charged as a misdemeanor or a felony, depending on the specific circumstances (such as quantity, type, and intention), if an individual is found to be in possession of both, the crime is always treated and charged as a felony offense. In addition, an individual found to be in possession of both can also be charged with California’s Health and Safety Code possession of a controlled substance & armed HSC 11370.1 under California’s Health and Safety Code HSC 11377. This charge would be on top of the California’s Health and Safety Code Possession of a Controlled Substance & Armed HSC 11370.1 charge, not in its stead.
Given the seriousness with which this crime is treated, and the increase in penalties associated with a felony offense, it is important to fully understand the elements of this crime.
Elements of and Definitions Associated with California’s Health and Safety Code Possession of a Controlled Substance & Armed HSC 11370.1
In order to prove that an individual is guilty of violating California Health and Safety Code Possession of a Controlled Substance & Armed HSC 11370.1, the prosecution will need to establish the presence of seven elements, making this crime one of the more complex in terms of proving culpability. As noted in the Judicial Council of California’s Criminal Jury Instructions the seven elements that must be demonstrated by the prosecution in order to demonstrate guilt are as follows:
- The individual unlawfully possessed a controlled substance & armed;
- The individual knew of the presence of the controlled substance & armed;
- The individual knew that the substance’s nature or character was that of a controlled substance;
- The controlled substance was cocaine, methamphetamine, heroin, PCP, or an analog thereof;
- The controlled substance was enough to be a usable amount;
- While possessing the controlled substance, the individual was in possession of a loaded, operable firearm that was available for immediate offensive or defensive use; AND
- The individual knew that they did in fact have the firearm available to them for immediate use.
The use of the phrase controlled substance here might be misleading, as its use on common parlance generally refers to a wider category of narcotics. However, for the purposes of this crime, the phrase controlled substance is only in reference to cocaine, methamphetamine, heroin, PCP, or an analog of these four drugs. What is meant by analog is illuminated for us by California’s Health and Safety Code 11401. A controlled substance analog can mean, “A substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance classified in Section 11054 or 11055 or a synthetic cannabinoid compound defined in Section 11357.5.” In addition, a controlled substance analog can also be in reference to:
A substance that has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance classified in Section 11054 or 11055 or a synthetic cannabinoid compound defined in Section 11357.5
Another important word to understand that comprises a crucial part of the elements of this crime is the word “possess”. Like controlled substance, possess means something in general usage, but it also carries with it a legal definition that is critical to understanding the elements of this crime. Possession, when it comes to a controlled substance, can come in two varities: actual and constructive. Actual possession is what most people probably think of when they think of “possess”. This involves an individual either physically holding an item or having it on their person somewhere. Constructive possession, however, deals with a more figurative type of possession. This means that while an individual may not actually be physically holding the item, it is somewhere where they have control over it or the right to have control over it.
The phrase “usable amount” is also important to fully understand the elements of this crime. The Jury Instructions have this to say about usable amounts:
A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.
While there is no set quantity or amount that qualifies then as “usable” the common sense language in use here indicates that it is what a reasonable person would consider a usable amount of drugs.
Finally, the last term it is important to understand to fully grasp California’s Health and Safety Code Possession of a Controlled Substance & Armed HSC 11370.1 is firearm. The Jury Instructions again prove useful here, by defining firearm as, “any device designed to be used as a weapon, from which a projectile is expelled or discharged through a barrel by the force of an explosion or other form of combustion.” This highly technical and over-descriptive definition is meant to be as broad as possible so it can cover pretty much anything that could be used as what most people would call a “gun”.
What Are the Penalties for Violating CA Health and Safety Code Possession of a Controlled Substance & Armed HSC 11370.1?
California’s Health and Safety Code Possession of a Controlled Substance & Armed HSC 11370.1 is a felony offense, and therefore, carries with it severe penalties. In terms of a prison sentence, if an individual is in fact found guilty of violating this code, then they will be looking at a sentence of two, three, or four years in state prison. In addition, this offense carries with it a fine of up to $10,000.
While drug diversion is something that is sometimes an option for an individual facing a drug possession charge, given the nature of the California’s Health and Safety Code Possession of a Controlled Substance & Armed HSC 11370.1 offense, and the added danger of a loaded firearm being added into the equation, drug diversion is not available to someone charged with this crime.
A way to avoid a longer prison sentence though is to try for felony probation, which is available to an individual charged with this offense. If a plea agreement can be reached and a deal for felony probation is struck, then an individual will be looking at a maximum sentence of one year in county jail versus the state prison sentence. After this possible jail sentence, the individual will also be on formal probation for at least three but possibly five years. In addition, as a condition of probation, the individual will be susceptible to compulsory drug testing, warrantless searches, drug counseling, and the payment of fines and fees.
As there are so many essential elements that make up this crime, California’s Health and Safety Code Possession of a Controlled Substance & Armed HSC 11370.1 is one of the easier crimes to defend against. The prosecution must prove seven individual elements, many of which include the requirement of knowledge. The best way to build a defense then is to build it around the concept of knowledge. Like with many crimes, the mental nature of the individual in question plays a key part. The Latin phrase mens rea, which literally translates to guilty mind, has to do with the intention or knowledge of wrongdoing that constitutes part of a crime. Without the requisite intention or knowledge, an individual cannot be found guilty.
Since three of the seven elements of this offense involve the individual’s knowledge (the presence of a controlled substance, the nature of the controlled substance, and the presence of a firearm), establishing this level of knowledge will be more of an uphill climb for the prosecutor than usual. Though knowledge plays a key component in most crimes, here, with so many moving parts and with knowledge playing a significant role in almost half, the easiest and likely best defense involves attacking the idea of knowledge. If the accused individual is shown to not have had the requisite knowledge for any one of these three elements, then they cannot be convicted.
In order to prove an individual’s knowledge, the prosecutor will likely rely on various direct and circumstantial evidence to help establish knowledge to any or all of the three elements. One of the easiest and most damning ways for a prosecutor to establish this knowledge is through statements made by the individual to law enforcement in the immediate aftermath of the detainment and arrest. As such, it is key to always remember that you do not need to answer questions posed to you by law enforcement. All individuals have a constitutional right to not incriminate themselves, and therefore as little information as possible should be provided.
Depending on the exact facts and circumstances of a given arrest for California’s Health and Safety Code Possession of a Controlled Substance & Armed HSC 11370.1, a plethora of other defenses can be available. Getting in touch with an experienced criminal defense attorney, therefore, is essential.
If you or a loved one has been charged with violating California’s Health and Safety Code Possession of a Controlled Substance & Armed HSC 11370.1 in the Southern California area, we invite you to contact our Los Angeles Criminal Defense Attorneys immediately for a free case review.
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