HEALTH AND SAFETY CODE 11370.1 HS – POSSESSION OF A CONTROLLED SUBSTANCE WHILE ARMED

Under California Health and Safety Code Section 11370.1 HS, it is considered a felony offense to possess a usable amount of a controlled substance while being armed with a loaded and operable firearm. A conviction for this offense carries severe penalties, including up to four years in a California state prison and a substantial fine.

Under HS 11370.1, the requirement for prosecution does not include actually using the firearm, threatening someone with the firearm, or brandishing the weapon. The simple possession of both the loaded and operable firearm and the controlled substance at the same time is sufficient for prosecution under this statute.

Additionally, it is worth mentioning that a conviction under HS 11370.1 makes a defendant ineligible for California drug diversion programs such as Proposition 36 or deferred entry of judgment (DEJ) under Penal Code Section 1000 PC.

11370.1 HS: (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.

Source:  https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC§ionNum=11370.1.

For further information and a comprehensive review of Health and Safety Code Section 11370.1 HS, you can consult with the Los Angeles criminal defense lawyer, who can provide detailed insights tailored to your specific case. Let’s understand more about the elements of crime, penalties and possible defense strategies below:

Elements

In order to obtain a conviction for violating Health and Safety Code Section 11370.1, possession of drugs while armed, a prosecutor must prove several crucial factors. These elements are outlined in CALCRIM 2303 Jury Instructions and include:

• The defendant possessed a usable amount of a controlled substance. It is important to note that a small amount of residue may not be sufficient for a conviction.
• The substance in possession was unlawful to possess. If the defendant had a valid prescription for the substance, they would not be considered guilty under this statute.
• The defendant was aware or knew the nature of the substance as a controlled substance.
• While in possession of the controlled substance, the defendant had a loaded and operable firearm that was accessible and available for immediate use.

Each of these elements can be subject to litigation during a trial. For instance, the prosecutor may face challenges in proving the firearm was operable at the specific moment. Additionally, the manner in which the firearm was possessed, such as being locked in a compartment and not readily accessible for immediate use, can be argued as a defense.

Examples:

A man was arrested during a traffic stop after being pulled over by the police. A K-9 unit was requested and the K-9 alerted to the presence of drugs in the trunk of the man’s car. During a search of the trunk, the officers found a loaded firearm and a small amount of heroin.

In this example, the man is charged with possession of a controlled substance while armed under California Health & Safety Code Section 11370.1 HS because he was in possession of a loaded firearm and a small amount of heroin at the same time. This is considered an aggravating factor that can lead to enhanced penalties, such as increased fines and a longer prison sentence. The possession of a controlled substance while armed is a serious offense in California and can lead to severe consequences, including the loss of gun rights and a permanent criminal record.

Penalties

If convicted of violating California Health and Safety Code 11370.1, possession of a controlled substance while armed, it is considered a felony offense. This offense carries a potential punishment of up to four years in state prison, with a fine of $10,000, or both. Plea bargaining with the prosecutor can be crucial in these cases, as Health and Safety Code 11370.1 HS is a straight felony not “wobbler” and cannot be reduced to a misdemeanor. It may be possible to seek a reduction of the charges to a lesser offense, such as simple drug possession, which can be filed as a misdemeanor drug crime.

In some cases, formal felony probation may be granted instead of jail time. If probation is granted, it may entail spending up to one year in a county jail under the court’s supervision for up to three years. Conditions of probation typically include regular meetings with a probation office, drug counseling, Drug treatment and testing, payment of a fine and completion of community service hours.

Failure to comply with the terms and conditions of felony probation may result in the judge revoking probation and imposing a jail sentence.

Please note; if you are convicted of possessing a controlled substance while armed, you are not eligible for drug diversion program under Proposition 36 or California Penal Code 1000 PC deferred entry of judgment (DEJ).

How to Fight Charges For Drug Possession While Armed

There are several common defenses that can be used against these felony charges.

• Lack of knowledge of the firearm’s presence: It can be argued that you were not aware of the firearm and therefore did not have knowing possession of it.
• Lack of knowing possession of a controlled substance: A defense can be made that you were not in knowing possession of the controlled substance found by the police.
• Illegal search and seizure: If there are grounds to believe that the search conducted by law enforcement was not lawful, a defense can be made based on an unlawful search and seizure.
• Firearm not loaded and/or operable: Depending on the circumstances, it may be possible to argue that the firearm in question was not loaded or operable, which could weaken the prosecution’s case.

Our goal as a criminal law firm is to create reasonable doubt regarding each of the elements mentioned above. We may be able to argue that you lacked knowledge of the firearm’s presence or that you were not in possession of the controlled substance.

Immigration consequences

For non-citizens, including legal permanent residents, certain criminal convictions can lead to severe immigration repercussions. These include the risk of being deemed deportable or inadmissible particularly if the conviction is classified as an aggravated felony or a crime involving moral turpitude under federal drug laws. A conviction under this statute could potentially fall into these categories, especially if interpreted as a drug trafficking offense. If you or someone you know is charged with this crime, it is strongly advisable that you also consult with an immigration lawyer. If you do not have or know of an immigration lawyer, the Tabibnia Law Firm can refer you to one.

Related Crimes

• Possessing a Controlled Substance – California Health & Safety Code Section 11350 a HSC
• Possession for Sale of a Controlled Substance – California Health & Safety Code Section 11351 HSC
• Sale or Transportation of a Controlled Substance – California Health & Safety Code Section 11352 HSC
• Armed with a Firearm – California Penal Code Section 12022 PC
• Carrying a Loaded Firearm – California Penal Code Section 25850 PC
• Carrying a Concealed Firearm – California Penal Code Section 25400 PC

Speak With Criminal Defense Lawyer From Tabibnia Law Firm

A felony conviction can have severe consequences for your future. You will be required to disclose the crime to employers, lose your firearm ownership rights for life (violating this can lead to charges under California PC 29800), and it can impact your voting rights. If you or a family member has been charged with the felony offense of possession of a controlled substance while armed under California Health and Safety Code 11370.1 HS, it is important to seek assistance from our law firm. Contact the Tabibnia Law Firm at 866-713-2159 to have the details of your case reviewed.

Our skilled Los Angeles criminal defense attorney, Cyrus Tabibnia, can provide guidance throughout the process and work towards achieving the best possible outcome.

Through prefiling intervention, we may be able to persuade the prosecutor to avoid filing formal criminal charges before court. During the criminal court process, there may also be opportunities to have the charges reduced or dismissed.

Please reach out to us for support and representation in your drug charges case. Call: 866-713-2159

Legal References:

DRUG DIVERSION 1000 P C (PENAL CODE) | Proposition 36 – Drug Treatment Diversion Program. | Health & Saf. Code, § 11370.1 | California Code, Health and Safety Code – HSC § 11370.1(a)