Health & Safety Code § 11370.1 HS – Possession of a Controlled Substance While Armed

California Health and Safety Code 11370.1 HS makes it a crime to be in the possession of a controlled substance while at the same time being armed with an operable firearm. This is a felony offense punishable by up to 4 years in jail or prison, and a fine of up to $10,000.00.

The full language of the code section reads as follows:

11370.1. (a)  Notwithstanding Section 11350 or 11377 or any other provision of law, every person who unlawfully possesses any amount of a substance containing cocaine base, a substance containing cocaine, a substance containing heroin, a substance containing methamphetamine, a crystalline substance containing phencyclidine, a liquid substance containing phencyclidine, plant material containing phencyclidine, or a hand-rolled cigarette treated with phencyclidine while armed with a loaded, operable firearm is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years.

As used in this subdivision, “armed with” means having available for immediate offensive or defensive use.

(b)  Any person who is convicted under this section shall be ineligible for diversion or deferred entry of judgment under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code.

There are also serious collateral consequences to a California felony conviction. Some of the most serious include (but are not limited to):

• A lifetime ban on owning or possessing firearms, and
• The requirement that you disclose the conviction when asked on a job application.

Prison alternatives

Unfortunately, if you are convicted under Health and Safety Code 11370.1, you are not eligible for drug diversion (treatment) under either:

• Prop. 36 – the Substance Abuse and Crime Prevention Act of 2000, or
• California Penal Code 1000 deferred entry of judgment (“DEJ”).

You may, however, be eligible for a suspended sentence and California felony (formal) probation depending on:

• the specific facts of your case, and
• your criminal history (if any).

If you are granted felony probation you will spend at most one year in county jail. You may even be given no jail time.

But you will be subject to the supervision of the court and must strictly comply with conditions which can include (but may not be limited to):

• Drug counseling or treatment,
• Drug testing,
• Searches of your person with or without a warrant,
• Payment of a fine,
• Meetings with a probation officer, and/or
• Community labor or service (such as Caltrans roadside work).

Our California criminal defense lawyers include former prosecutors and cops. We understand California’s complicated drug and firearm laws.

To help you better understand the laws on possessing a controlled substance while armed, our California criminal defense attorneys discuss the following:

• 1. Possession While Armed Defined
• 2. Penalties
• 3. Best Defenses
• 4. Related Crimes

1. Possession While Armed Defined

Elements of the crime

For you to be convicted under California Health and Safety Code 11370.1 HS, the prosecutor must prove all of the following things (known as “elements of the crime”):

1. you possessed a usable amount of a controlled substance;
2. you knew of its presence;
3. you knew of the substance’s nature or character as a controlled substance;
4. the controlled substance was one of the ones listed in Section 1.2, below;
5. the controlled substance was in a usable amount;
6. while possessing that controlled substance, you had a loaded, operable firearm available for immediate offensive or defensive use; and
7. you knew you had the firearm available for immediate offensive or defensive use.¹

Note that you can also be charged separately with possession of a controlled substance, California Health and Safety Code 11350 HS or 11377 HS. Possession of a controlled substance is not a lesser included offense of possessing a controlled substance while armed.²

Controlled substances covered by Health and Safety Code 11370.1

California Health and Safety Code 11370.1 makes it a crime to unlawfully possess any amount of a substance containing:

• cocaine base,
• cocaine,
• heroin,
• methamphetamine,
• a crystalline substance containing phencyclidine (“PCP”),
• a liquid substance containing PCP,
• plant material containing PCP,
• a hand-rolled cigarette treated with PCP, or
• an analog of any of the foregoing substances.³

For purposes of this article, we will collectively refer to the above as “controlled substances.” However, this is a narrower definition of “controlled substance” than is used under most California and federal drug laws.

The legal definition of a “controlled substance analog”

A “controlled substance analog” means:

1. A substance that is chemically similar to a controlled substance, or
2. A substance which:

• has,
• is represented as having, or
• is intended to have,

an effect on the central nervous system as

• a stimulant,
• depressant, or
• hallucinogen,

and which effect is substantially similar to, or greater than, that of a controlled substance.⁴

The legal definition of “possess”

You “possess” a controlled substance when you have “actual,” “constructive” or “joint possession of it.

“Actual” possession

You have “actual” possession of a drug when:

• you are holding it, or
• it is on your body or in something you are holding or wearing.

Example: Melanie has a packet of heroin in the pocket of her jeans. She has actual possession of the heroin.

“Constructive” possession

You have “constructive” possession of something when you don’t have immediate access to it, but:

• you control it, or
• you have the right to control it (either by yourself or through another person).⁵

Example: Marlon is stopped on suspicion of driving under the influence. There is PCP in his jacket, which is in the back seat. Even though he doesn’t have immediate access to the PCP, he has constructive possession of it because he has control of the jacket.

Joint possession

Two or more people can have possession of drugs at the same time (“joint possession”).⁶

Example: Jamal and Kevin are sharing a joint laced with PCP.  While they are smoking it, they both actually possess the drug.  If they don’t finish it, but hide it in a drawer for later, they still jointly, but constructively, share the drug, because they have the mutual right to control it.

“Usable amount”

You possess a “usable amount” of a controlled substance if there is enough to be used by someone as a drug. It does not necessarily have to be enough to get you — or anyone else — high.⁷

The legal definition of “armed”

You are armed with a loaded, operable firearm if you knowingly have one available for immediate offensive or defensive use.⁸

You do not need to be holding the firearm in order to be armed with it.⁹

Example: The police knock on Roderick’s door after receiving a noise complaint. When Roderick opens the door, the police see a table with cocaine on it, and a loaded gun tucked into the waistband of Roderick’s pants. Roderick is “armed” with a firearm within the meaning of Health and Safety Code 11370.1 HS.

The legal definition of a “loaded” firearm

A firearm is considered “loaded” when a shell or cartridge has been placed into a position from which it can be fired.¹⁰

If the shell(s), bullet(s), or cartridge is not in the gun, it is not yet in a position to be fired. Therefore, it is not loaded under Health and Safety Code 11370.1.¹¹

Example: Let’s say that in the example above, Roderick tucked an unloaded gun into his waistband in order to appear more intimidating. While he might be guilty of unlawfully possessing cocaine, he would not be guilty of possessing a controlled substance while armed.

The requirement of “knowledge”

For you to be convicted under Health and Safety Code 11370.1 HS the prosecutor must prove several facts. These include:

1. that you possessed a controlled substance,
2. that you knew of its nature or character as a controlled substance,
3. that you were armed with a loaded firearm, and
4. that you knew you had a firearm available for immediate offensive or defensive use.¹²

Proving what you know can be a big hurdle for the prosecutor.

For instance, if you didn’t know the controlled substance was there, you can’t be found guilty under Health and Safety Code 11370.1 HS.

Example: Adam’s friend, Bailey, has a bindle of heroin. When Adam gets pulled over for erratic driving, Baily slips the bindle into Adam’s backpack. After Adam is arrested for DUI, the police do a full search of his vehicle. They search his backpack and find the bindle. But since Adam didn’t know it was there, he isn’t guilty under Health and Safety Code 11370.1. The prosecutor does not need to prove that you knew which specific controlled substance you possessed.¹³ It is enough that you knew it was a drug that had the nature of a controlled substance.

However, if you honestly had no idea what you possessed, you haven’t violated Health and Safety Code 11370.1 HS.

Example: Cathy’s roommate told her she was leaving some Stevia at Cathy’s house to use instead of sugar when she came over. Cathy has never done a recreational drug other than marijuana, and didn’t recognize it as cocaine. Since Cathy was genuinely clueless about the coke, she isn’t guilty of a crime.

But… the prosecutor can use direct or circumstantial evidence to try to prove that you knew that what you had was a controlled substance. This can include (but is not limited to):

• your admission that you knew what heroin/cocaine/meth/PCP looked like;
• statements to others about the nature of the substance;
• evidence of your drug use; or
• evidence of past drug-related crimes.¹⁴

Finally, you must know that you have a loaded firearm available for immediate use. It is not necessary for you to know that the gun is loaded.¹⁵ If you possess a firearm, the burden is on you to know (or check to see) whether it is loaded or not.¹⁶

However, in order for you to be guilty under California Health and Safety Code 11370.1, you must know that the firearm is there.¹⁷

Example: Victor lives in a house with three roommates. Unbeknownst to Victor, one of his roommates keeps a loaded gun under the cushions of the sofa in the living room. Victor and his roommates are watching TV when the cops arrive with a warrant to conduct a police search of the house for drugs. Although there is a loaded gun available for Victor’s use, he doesn’t know it. Therefore he does not violate Health and Safety Code 11370.1 HS.

2. Penalties

Possession of a controlled substance while armed is a serious California felony.

It can be punished by:

• two, three, or four years in California state prison, and/or
• a fine of up to $10,000.¹⁸

Drug diversion instead of prison time not available

Drug diversion (treatment) is often available as an alternative to jail after a conviction for simple possession of a controlled substance for personal use.

However, if you are convicted of possession of a controlled substance while armed, you are ineligible for drug diversion under both:

• Prop. 36 – the Substance Abuse and Crime Prevention Act of 2000,¹⁹ and
• California Penal Code 1000 PC, deferred entry of judgment (“DEJ”).²⁰

Depending, however, on:

• the facts of your case, and
• whether you have a criminal history,

you may be eligible for California felony (formal) probation instead of prison.²¹

If you receive felony probation you will spend at most one year in county jail. But you will be subject to the supervision of the court for at least three years (and sometimes as long as five years). Additionally, you will be subject to strict conditions which can include (without limitation):

• Drug counseling or treatment,
• Drug testing,
• Payment of a fine,
• Meetings with a probation officer,
• Searches of your person and/or premises with or without a warrant,
• Community labor or service (such as Caltrans roadside work),
• The requirement that you not use drugs or break any more laws, and/or
• Any other reasonable conditions the court imposes.

If you violate any of these conditions, the judge can revoke your probation and send you to prison or jail.²²

3. Best Defenses

Because there are so many elements, there are many possible defenses to charges under California Health and Safety Code 11370.1 HS.

Some are general California criminal legal defenses. Others are specific to Health and Safety Code 11370.1 HS.

Your California criminal defense attorney can discuss with you which ones apply to your case. But some of them might include (without limitation):

• The drugs weren’t yours,
• You didn’t know the drugs were there,
• You knew the drugs were there, but you didn’t know they were drugs,
• The gun wasn’t loaded,
• You didn’t know the gun was there,
• The drugs and gun were discovered during an illegal search by the police.

4. Related Crimes

Health and Safety Code 11350 HS, possession of a controlled substance

“Controlled substance” has a broader meaning under California Health and Safety Code 11350 HS than it does under Health and Safety Code 11370.1. Under Section 11350 HS, a “controlled substance” is a drug or chemical whose manufacture, possession and use are regulated by the government under the California “Uniform Controlled Substances Act.”²³

In addition to cocaine, heroin, methamphetamine and PCP, such controlled substances include, among many others:

• peyote,
• gamma-hydroxybutyric acid (“GHB”),
• hallucinogenic substances, such as LSD,
• codeine,
• Vicodin,
• Oxycontin,
• barbiturates,
• ketamine, and
• Fentanyl.²⁴

Possessing most controlled substances (other than GHB) is a California felony. It can be punished by:

• 16 months, or two or three years in county jail, and/or
• up to a $1,000 fine, and/or
• felony (formal) probation.²⁵

Possession of GHB and certain other depressants is a California “wobbler” offense.

If prosecuted as a felony, it carries the penalty set forth above. If charged as a misdemeanor, it can be punished by:

• up to one year in county jail, and/or
• a fine of up to $1,000, and/or
• misdemeanor (informal) probation.²⁶

Penal Code 25400 PC, carrying a concealed firearm

California Penal Code 25400 PC makes it a crime to knowingly carry a concealed firearm on your person or in a vehicle.²⁷

However, as long as you are otherwise entitled to possess a gun, you may normally carry a concealed firearm in:

• your home, or
• a business you own (as opposed to someplace you just work).²⁸

Absent aggravating circumstances, unlawfully carrying a concealed firearm is a misdemeanor. It carries a penalty of:

1. up to one (1) year in county jail, and/or
2. a maximum $1,000 fine.²⁹

However, under certain circumstances, carrying a concealed weapon can become a straight felony or a California “wobbler” offense.

You commit a felony violation of California Penal Code 25400 PC when:

• you have previously been convicted of a felony or any other California firearm offense,³⁰
• the firearm is stolen and you knew or had reasonable cause to believe, that it was stolen,³¹
• you are an active participant in a criminal street gang,³²
• you are not in lawful possession of the firearm,³³
• you are prohibited from owning or possessing a firearm under Penal Code 29800 PC, California’s felon with a firearm law,³⁴ or
• you are prohibited from owning or possessing a firearm under Penal Code 29900 PC because you committed (or attempted to commit) a violent offense.³⁵

As a felony carrying a concealed firearm is punishable by:

1. 16 months, or two or three years in California state prison, and/or
2. up to a $10,000 fine.³⁶

Violation of Penal Code 25400 PC is a wobbler offense when — in addition to carrying a concealed firearm on your person or in a car:

• you have a prior misdemeanor conviction for a crime against a person or property, or involving narcotics,³⁷

OR

1. the firearm is loaded (or the ammunition is readily accessible to you), AND
2. you are not listed as the registered owner of the gun with the California Department of Justice.³⁸

If charged as a misdemeanor, you face:

• up to one (1) year in county jail, and/or
• a maximum $1,000 fine.³⁹

If charged as a felony, the potential punishment is:

• 16 months, or two (2) or three (3) years in county jail, and/or
• a maximum $10,000 fine.⁴⁰

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