HS 11377, HS 11350 (Simple Possession of Controlled Substance)
Elements
- (1) D possessed a controlled substance
- (2) D knew of its presence
- (3) D knew of the substance’s nature or character as a controlled substance
- (4) The controlled substance was _______
- (5) The controlled substance was a usable amount.
Case Law/Statutes/Notes
- COCAINE is charged under HS 11350 – b/c its specified in HS § 11055, subdivision (b)
- HEROIN is charged under HS 11350 – b/c its specified in HS § 11054, subdivision (c)
- AMPHETAMINE is charged under HS 11377 – b/c its specified in HS § 11055, subdivision (d)
- FENTANYL is charged under HS 11350 – b/c its specified in HS § 11055, subdivision (c)
- CODEINE is charged under HS 11350 – b/c its specified in HS § 11055, subdivision (b)
- OXYCODONE/HYDROCODONE is charged under HS 11350 – b/c its specified in HS § 11055, subdivision (b)
- XANEX is charged under HS 11375(b)(2)
- LORAZEPAM is charged under HS 11375(b)(2)
- SUBOXONE is charged under HS 11350 – b/c it’s a Schedule III drug
- CLONAZEPAM is charged under HS 11350 – b/c it’s a Schedule IV drug
- KETAMINE is charged under HS 11350 – b/c it’s a schedule III drug
- PSILOCYBIN is charged under HS 11377 – b/c its specified in HS § 11054, subdivision (d)
- HS 11357(a): possession > ounce of marijuana = misdemeanor
- CALCRIM 2375
Punishment: up to 1y CJ
HS 11360(a)(3) (Possession of Marijuana for Sale)
Elements
- (1) D sold/furnished/administered/imported into California cannabis
- (2) D knew of its presence & nature
- (3) Usable amount
Case Law/Statutes/Notes
- Felony ONLY IF > 18 years old AND one of these:
- D has prior conviction for serious felony or offense requiring 290 reg
- D has 2 prior convictions under HS 11360(a)(2)
- Offense involving sale to minor
- Offense involved import/export outside of CA of cannabis for sale and > 28.5g of cannabis or 4g of concentrated cannabis
- CALCRIM 2350.
Punishment: Triad 2-3-4 // if misd up to 180d CJ
HS 11370.1 (Possession of Controlled Substance While Armed w/ Firearm
Elements
- (1) D unlawfully possessed a controlled substance
- (2) D knew of its presence & nature
- (3) Usable amount
- (4) While possessing that controlled substance, D had a loaded, operable firearm available for immediate offensive or defensive use
- (5) D knew he had he firearm available for immediate offensive or defensive use
Case Law/Statutes/Notes
- Controlled Substance: meth, heroin, or cocaine ONLY
- Loaded. Firearm is loaded when a shell or cartridge has been placed into a position from which it can be fired.
- Shotgun shells placed in storage compartment on side of shotgun, Held, not loaded. (People v. Clark (1996) 45 Cal.App.4th 1147.)
- Immediacy Requirement. No delay or intervening lapse of time before gun can be used.
- Not immediately available: D driving, gun in truck bed, in a bag, under a board. (People v. Sanchez (2021) 66 Cal.App.5th 14, 20.)
- Knowledge firearm is loaded or operable not required. (People v. Heath (2005) 134 Cal.App.4th 490, 498.)
- CALCRIM 2303.
Punishment: Triad 2-3-4
Drug Sales
Elements
- HS 11351, HS 11378 (Poss. CS for Sale) Elements
- (1) D possessed a controlled substance
- (2) D knew of its presence
- (3) D knew of the substance’s nature as a controlled substance
- (4) When D possessed the controlled substance, he intended to sell it
- (5) Controlled substance was a usable amount.
- HS 11352, HS 11379 (Transport CS for Sale) Elements
- (1) D sold/furnished/transported for sale a controlled substance
- (2) D knew of its presence
- (3) D knew of the substance’s nature as a controlled substance
- (4) When D transported the controlled substance, he intended to sell it
- (5) Controlled substance was a usable amount
Case Law/Statutes/Notes
- 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.
- Selling means exchanging the controlled substance for money, services, or anything of value.
- CALCRIM 2302; 2300
Punishment: Triad 16-2-3 1170h
HS 11550 (Under the Influence of a Controlled Substance)
Elements
- (1) D willfully used a controlled substance
- (2) D was willfully under the influence of a controlled substance when he was arrested
Case Law/Statutes/Notes
- Under the influence CS has appreciably affected D’s nervous system, brain, or muscles or has created in D a detectable abnormal mental or physical condition.
- HS 11550(e) – meth, heroin, or cocaine ONLY
- CALCRIM 2400.
Punishment: up to 1yr CJ