Under California law, the felony crime of possession of a controlled substance while armed provides severe punishment for defendants found to have been personally armed with an operable firearm while simultaneously possessing a useable amount of a controlled substance which is unlawful to possess under California Health and Safety Code 11370.1.
While drug possession is a serious criminal offense by itself, anyone caught possessing both drugs and a loaded gun will face increased criminal penalties under the law.
A conviction could result in up to four years in a California state prison and a fine up to $10.000. There are also collateral consequences for a felony conviction, such as a lifetime ban on owing or possessing a firearm.
Health and Safety Code 11370.1 makes it a crime to unlawfully possess any amount of cocaine, methamphetamine, heroin, PCP, or an analog of them - while armed with a loaded, operable firearm.
Keep in mind that a violation of Health and Safety Code § 11370.1 does not require that you actually use the firearm - either to harm or threaten someone or even simply to brandish the weapon.
Rather, the mere possession of the firearm and the controlled substance or substances simultaneously is enough to establish a violation of the drug crime of Section 11370.1 for possession of a controlled substance while armed.
To give readers useful information on California's law on possession of a controlled substance, our Los Angeles criminal lawyers are providing an overview below.
Elements of the Crime - Health and Safety Code 11370.1
To be found guilty – beyond reasonable doubt - of a violation of Health and Safety Code § 11370.1, a prosecutor must prove all the “elements of the crime” under CALCRIM 2303 Jury Instructions:
- You were in possession of a useable amount of a controlled substance;
- You knew of its presence;
- You knew of the substance's nature as a controlled substance;
- While in possession of a controlled substance, you had and knew there was a loaded and operable firearm available for immediate use.
In reference to showing that you possessed a useable amount of a controlled substance. This means that tiny amounts of residue would likely not provide sufficient evidence to convict under this section. The substance must be unlawful to possess.
For example, if you had a valid prescription for the type and amount of controlled substance in your possession at the time of arrest, you should be found not guilty of violating Section 11370.1.
The critical element which differentiates a violation for possession of a controlled substance while armed from a case of simply drug possession is the presence of a readily accessible, operable, firearm. Each of these elements can be litigated at a trial. In some cases, the firearm in question can't be proven to have been operable.
In other cases, the firearm might have been possessed in such a way that it was not readily accessible such as in a separate locked compartment or container from which the defendant could not immediately produce the weapon for either an offensive or defensive use.
Accordingly, the concept of being “armed,” within the meaning of Health and Safety Code § 11370.1 is narrower than the basic standard for possession which would not generally include a requirement of ready accessibility.
Penalties for Health and Safety Code 11370.1
A violation of Health and Safety Code § 11370.1 for being in possession of a controlled substance while armed is a felony under California law. If convicted, the defendant faces a sentence of two, three, or four years in California state prison, a $10,000 fine, or both – but you might be eligible for formal felony probation instead of prison time.
If convicted of possession of a controlled substance while armed, you are not eligible for drug diversion under Prop. 36 – Substance Abuse and Crime Prevention Act, and California Penal Code 1000 PC - deferred entry of judgment (DEJ).
Note that Health and Safety Code § 11370.1 is a straight felony, rather than a “wobbler,” meaning that it cannot be reduced to a misdemeanor.
For that reason, a major point in plea negotiations for a defendant charged with being in possession of a controlled substance while armed is attempting to secure a reduction of the charges to a less offense such as simple possession which can be filed as a misdemeanor.
Related California Offenses for HS 11370.1
- Health & Safety Code 11350 – Possession of Controlled Substance,
- Health & Safety Code 11351 – Possession for Sale of Controlled Substance,
- Health & Safety Code 11352 – Sale or Transport of Controlled Substance,
- Penal Code 12022 – Armed with a Firearm,
- Penal Code 25400 – Carrying a Concealed Firearm,
- Penal Code 25850 – Carrying a Loaded Firearm.
Fighting Health and Safety Code 11370.1 Charges
Defenses to Section 11370.1 charges would include raising reasonable doubt as to each of the elements listed above. Additionally, in a proper case the defendant could argue they lacked knowledge of the firearm's presence and was therefore not in knowing possession of the firearm.
The defendant could also argue that they were not in knowing possession of the controlled substance found by law enforcement. Because of the possessory nature of this particular crime, there may also be fruitful avenues of defense involving unlawful search and seizure.
A motion to suppress evidence under Penal Code § 1538.5 can be filed in an appropriate case arguing that the police lacked probable cause to search or otherwise acted inappropriately.
A successful motion to suppress evidence in a Section 11370.1 case would likely result in the case being dismissed completely as the physical evidence itself in most cases would be the entirety of the government's case.
If you have been charged with the serious felony offense of possession of a controlled substance while armed in violation of California Health and Safety Code § 11370.1, contact our office.
Our experienced criminal defense attorneys can assist you or your loved one both in court through vigorous litigation to secure the best possible outcome as well as before court through a prefiling intervention designed to reduce or drop the charges before a formal criminal filing is made.
We serve clients throughout Southern California, including the greater Los Angeles area and the San Fernando Valley.
We are located at 1875 Century Park E #705, Los Angeles, CA 90067 and 14401 Sylvan St #112 Van Nuys, CA 91401.
Call us at (310) 328-3776 for a consultation.