HS 11370.1, 11350, PC25400 - Possession of a Controlled Substance While Armed

Criminal Defense Picture

Possession of a Controlled Substance While Armed

1. Health and Safety Code 11370.1 HS

1.1 Elements of the Crime

To be convicted the following criteria must be met.

  1. You were aware of the presence
  2. You were aware of the nature of the drugs
  3. You were in possession of a usable quantity of the drugs
  4. The controlled substance is one of the ones that’s mentioned in section 1.2
  5. You had a gun on you that you were ware was loaded and reading for use

1.2 Controlled Substances Covered by Health and Safety Code 11370.1

According to code 11370.1, possession of any of the following drugs is a crime, which from here on will be referred to as “controlled substances”.

  • cocaine base,
  • cocaine,
  • heroin,
  • meth,
  • a crystalline substance containing phencyclidine (“PCP”),
  • a liquid containing PCP,
  • plant matter containing PCP,
  • a cigarette treated with PCP

1.3 The Legal Definition of a “Controlled Substance Analog”

Controlled substance analogs” are defined as:

  1. A substance that is chemically similar to a controlled substance
  2. A substance that is represented as having, or meant to have, the same effect as a depressant, hallucinogen, or stimulant.

1.4 The Legal Definition of “Possess”

You don’t have to have a controlled substance on your person (although you could) in order to have possession over a drug. It is enough for you to have control over a drug, meaning that it is yours regardless of where it is located, or you have access to it. You could also have joint possession, meaning that both you and someone else has ownership over the drugs.

1.5 “Usable Amount”

A usable amount of a controlled substance is defined as an amount that can be used, not necessarily enough to equal a full dose.

1.6 The Legal Definition of “Armed”

In order to be considered armed, you don’t need to have a gun immediately on your person. You do, however, need the gun to be

  • usable
  • loaded
  • ready for use

You also need to be aware that the gun is there.

1.7 The Legal Definition of a “Loaded” Firearm

The gun needs to have a shell/cartridge in it to be considered loaded. 

1.8 The Requirement of “Knowledge”

To be convicted you must:

  1. Be in possession of a drug
  2. Have been aware of the drug
  3. Were armed with a ready gun
  4. Were aware you had a gun ready for use

The prosecutor will try to prove that you were aware of the drugs using both direct and circumstantial evidence, such as

  • You admitting to the crime
  • Statements from others
  • Evidence that you abused drugs
  • Evidence that you have abused drugs in the past

2. Penalties under Health and Safety Code 11370.1 HS

Consequences for possessing a controlled substance and a firearm are:

  1. Two to four years in state prison
  2. As much as $10,000 in fines

2.1. Drug diversion Instead of Prison Time is Not Available

Even though drug rehabilitation is not an option for those caught with both drugs and a firearm, felony probation is.

With felony probation you will be charged with as much as one year in jail with court supervision of as little as three years. Further restrictions include:

  • Drug counseling/treatment
  • Drug testing
  • Fines
  • Meetings with a probation officer
  • Searches without or without a warrant
  • Community service
  • Not using any other controlled substances
  • Etc.

Violation of the above can result in you being sent to jail instead.

3. Related California Offenses

3.1 Health and Safety Code 11350 HS, Possession of a Controlled Substance

According to code 11370.1, a controlled substance is defined as a drug that’s regulated by the Californian government under the Uniform Controlled Substances Act.

Examples of controlled substances are:

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

Aside from GHB, which is another wobbler offense, the majority of controlled substances are illegal to possess in the state of California. Punishments can vary from as little as sixteen months and as much as three years in jail, and/or fine of $1,000, or probation.

If GHB is processed as a misdemeanor instead of a felony, you will be sentenced to as much as a year in prison, a fine of $1,000, or probation.

3.2 Penal Code 25400 PC, Carrying a Concealed Firearm

Under this code, it is illegal to carry a concealed gun. The exception to this law is if you already have the right to own a firearm and you are hiding it within your house or a business you own, not on you or in your vehicle.

Though in some circumstances, carrying a concealed gun is categorized as a felony or wobbler offense, generally it is a misdemeanor with a punishment of as much as one year in jail and a fine of up to $1,000.

Under Penal Code 25400 PC, the following are categorized as felonies:

  • You are convicted of carrying a concealed firearm when you have already received a firearm defense or committed a felony in the past.
  • The firearm was stolen and you were aware that it was stolen
  • You are a part of a street gang
  • You are not legally possessing the gun
  • Penal Code 29800 PC, California’s felon with a firearm law34 prohibits you from owning a gun
  • Penal Code 29900 PC prohibits you from owning a gun due to having committed a violent crime in the past