Information on the crime of illegal possession of methamphetamine, or “meth” for short, is found at California Health & Safety Code Section 11377(a).
HS 11377(a) covers information on the illegal possession of various narcotics, including meth. This article will focus on the illegal possession of meth, but the law, sentence, and defense associated with HS 11377(a) will apply to other controlled substance classified as Schedule III, IV, or V. Also, the crime of possession of a controlled substance not classified as a Schedule III, IV, or V is covered at HS 11350.
HS 11377(a) Law (Abbrev.)
HS 11377(a): Except as provided by law…every person who possess any controlled substance, which is classified as a Schedule III, IV, or V, and which is not a narcotic drug…unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in [California], shall be punished by imprisonment in a county jail for a period of not more than one year, except that such a person may instead be punished [up to 16 months, 2 years, or 3 years, in jail]…if that person has one or more prior convictions for a [strike] offense (HS 11377(a) Abbrev. & Summarized for brevity and clarity).
To prove that the defendant is guilty of illegal possession of meth, the district attorney must prove the following:
The defendant [unlawfully] possessed a controlled substance (meth)
The defendant knew of its presence
The defendant knew of the substance’s nature of character as a controlled substance, and
The controlled substance was in a usable amount (Calcrim 2304 Abbrev.)
Note: A “usable amount” does not mean that the amount or meth possessed by the defendant would be sufficient to have a pharmaceutical effect on a person. However, the amount of meth possessed must be more than a “trace” amount. In other words, the amount of meth possessed must be enough to measure and enough to use, but the amount of meth possessed does not have to be in a quantity large enough to have a pharmaceutical effect on a person.
Possession Defined: Possession of meth may be either actual (defendant has meth on her person or within her immediate control), or constructive (defendant has dominion and control of the meth, such as at her house or in the trunk of her vehicle).
HS 11377(a) Penalties
Wobbler Crime: Possession of a controlled substance, including meth, is classified as a wobbler offense. A wobbler offense is one that may be charged either as a felony, or alternatively as a misdemeanor. Whether the district attorney charges a felony or a misdemeanor against the defendant in any HS 11377(a) crime depends on whether the defendant has a prior “strike” conviction at the time of the HS 11377(a) allegation. For more information, see Wobbler Crimes, and California “Strike” Offenses.
Felony Jail Sentence: If the defendant is convicted of a felony violation of HS 11377(a), then the defendant may face up to sixteen month, two years, or three years in jail. There is a possibility that the defendant could receive a probation sentence, with or with some incarceration, after a conviction for HS 11377(a) (See Probation Sentence below).
Whether or not the defendant receives a probation sentence, a sixteen-month jail sentence, a two-year jail sentence, or a three-year jail sentence after an HS 11377(a) conviction depends on many factors, including the defendant’s criminal history, the facts of the case, and more.
Misdemeanor Jail Sentence: If the defendant is convicted of a misdemeanor violation of HS 11377(a), then the defendant may face up to a year in the county jail. The defendant may be eligible for a probation sentence, with or without some jail time, after a conviction of HS 11377(a).
Whether the defendant will receive a probation sentence or an actual jail sentence after a conviction for HS 11377(a) depends on the facts of the case, the defendant’s criminal history, the terms of any negotiated plea bargain between the defendant and the district attorney, and more.
Probation Sentence: A probation sentence is a period of supervision, as opposed to an actual jail sentence. A probation sentence is allowed in some HS 11377(a) cases, but a probation sentence is never guaranteed. Whether the defendant receives a probation sentence after a conviction for possession of a controlled substance, including possession of meth, depends on the circumstances of the case, the defendant’s criminal history, the amenability of the defendant serving probation (i.e., no failure to appear at court, or termination from prior drug treatment programs), and more.
A probation sentence after a felony conviction of HS 11377(a) is called “formal” probation and the terms of probation are monitored by a probation officer. A probation sentence after a misdemeanor conviction of HS 11377(a) is called “informal” probation and the terms of probation are monitored by the court. If the defendant fails to obey the terms of either felony or misdemeanor probation, then the defendant may have her probation sentence terminated and she may be remanded into custody to serve out an actual jail sentence.
Note: A probation sentence may include a “jail sentence” as a term of probation. However, when a jail sentence is ordered as a condition of probation, that jail term is usually much shorter than the jail sentence that would have otherwise been ordered if the defendant had not been granted probation. Also, a jail sentence that is ordered as part of a probation sentence may usually, but not always, be served alternatively on work release or house arrest.
PC 1170(h) Sentencing: If the defendant is convicted of HS 11377(a) as a felony, and he or she is not granted a probation sentence, then the defendant will serve time in a local county jail, as opposed to a California state prison.
Also, the judge may order that some portion of the defendant’s felony jail sentence be split or suspended (split jail sentence = partial incarceration and partial out-of-custody work release; suspended jail sentence = no jail unless the defendant violates a term of her out-of-jail conditional sentence).
CIMT: Possession of meth is not considered a crime involving moral turpitude. A crime of moral turpitude is considered an inherently immoral crimes and can carry certain negative collateral consequences, such as military service consequences, immigration consequences, and more. However, just because HS 11377(a) is not classified as a crime involving moral turpitude, does not mean that a conviction will not have negative collateral consequences, including negative consequences with immigration, professional licensing, and more. For more information, see CIMT.
Fines & Fees: A violation of HS 11377(a) may carry up to a $70 fine. This fine is in addition to any monetary penalties levied against the defendant for court security, probation monitoring fee, and more.
Note: The defendant’s fine may be reduced if the court determines that the defendant does not have the ability to pay the fine. Also, the defendant may not be denied a probation sentence in an HS 11377(a) case simply because the defendant is unable to pay the ordered fine (HS 11377(b)).
Drug Registration: In some HS 11377(a) cases, the defendant may be ordered to register as a drug offender with local law enforcement authorities.
Additional Penalties: In addition to the penalties listed above, if the defendant is found guilty of possession of a controlled substance, including possession of meth, the defendant may suffer addition penalties, including loss of a professional license, loss of immigration status (for non-US citizens), loss of the right to own or possess firearm, civil lawsuits, criminal protective orders, and more.
HS 11377(a) Defenses
The common defenses associated with possession of a controlled substance include, but are not limited to, the following: Illegal search and seizure, entrapment, insufficient evidence to show defendant possessed meth, duress, mistake of fact as to the substance that defendant possessed, statute of limitations (1 year for misdemeanor, 3 years for felony), emergency, and more.
Other Defenses to HS 11377(a), which are actually built into the statute itself, include: No usable amount of meth possessed by the defendant, Defendant had a prescription for the meth, Defendant is a person listed as having authority to possess meth (See HS 11377(a) Law above), and more.
Note: It is a defense to a charge of HS 11377(a) to show that the defendant was only transporting the meth from a person who was legally authorized to prescribe the meth to a person who had a prescription for the same. It is also a defense to a charge of HS 11377(a) to show that the defendant was only transporting the meth to a place to be destroyed and that the defendant was transporting on behalf of a person who otherwise was legally allowed to possess the meth (HS 11377(c)).
Fleeting Possession: It is possible to have actual possession of meth without intending to possess the meth for anything more than a fleeting moment. This "fleeting possession" of meth can be a defense to an HS 11377(a) allegation. Essentially, a fleeting possession of meth occurs when someone hands the defendant meth, but the defendant possesses the meth only for an instant until she realizes the nature of what she has been handed and she immediately discards the meth.
Diversion: A defendant may be entitled to enter certain diversion program designed to circumvent the criminal prosecution process. A diversion program is similar to a probation sentence, except that after the defendant successfully fulfills the conditions of a diversion program, the defendant’s case is dismissed. For more information, see Judicial Diversion.
PC 17(b): In some cases, the defendant may have a felony HS 11377(a) criminal charge reduced to a felony criminal charge. Whether the district attorney, or judge, is willing to reduce the classification of the criminal charge depends on many factors, including the terms of any negotiated plea bargain (if any), the facts of the case, the defendant’s criminal history, and more.
After a conviction for HS 11377(a), the defendant may seek the following post-conviction remedies: Appeal the conviction, withdraw a guilty plea, terminate probation early, move for expungement of the criminal record, apply for a certificate of rehabilitation, and more.
For more information of the crime of illegal possession of a controlled substance, including meth, or HS 11377(a), contact our criminal defense attorneys today for a free consultation. Our criminal defense attorneys are available every day of the week to discuss your defense option and explain your rights. We represent all persons charged with any misdemeanor or felony crime in the Inland Empire, including possession of a controlled substance crimes. Our office centrally located in the city of Redlands. Call today!