H&S 11370.1: Possession of Controlled Substances While Armed

Legal Definition:

“(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…”

To be found guilty under HS 11370.1 the prosecution must prove:

1. You unlawfully possessed a controlled substance;
2. You knew of the presence of the controlled substance;
3. You knew of the substances’ nature or character as a controlled substance;
4. The controlled substance was in a usable amount;
5. While possessing that controlled substance, you had a loaded, operable firearm available for immediate offensive or defensive use;

AND

6. You knew that you had a firearm available for immediate offensive or defensive use.

What does this mean?

A firearm is any device designed to be used as a weapon, from which a projectile is expelled or discharged through a barrel by the force of an explosion or other form of combustion. Under the commonly understood meaning of the term ‘loaded,’ a firearm is ‘loaded’ when a shell or cartridge has been placed into a position from which it can be fired, meaning if the shells or cartridges are stored elsewhere, then you would not have a loaded firearm for this charge.

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. A controlled substance would be things such s cocaine, heroin, methamphetamine, PCP, or any analog of PCP or others listed.

Two or more people may possess something at the same time. You do not need to actually hold or touch something to possess it. It is enough if you have control/the right to control the item personally or through another person. However, if you simply agreed to purchase a controlled substance while armed does not, by itself, mean that you have control over that substance.

Penalties

A charge under HS 11370.1 is a felony-only offense. This would mean there is no misdemeanor charge for this crime – a conviction can only result in a felony on your record. A felony leads to a firearm ban and a ban on voting, among other restrictions since this is a felony offense. A conviction of this charge you could be sentenced to State Prison for 2, 3, or 4 years. You are required to serve at least 50% of that time in custody. You would also be subject to a fine of up to $10,000 for a conviction.

This is not a strike offense under the California Three Strikes law, and it is not a Sex Offense under PC 290. You could also face a suspension or loss of your Professional License if convicted, and if you are not a legal resident, you would face Deportation in Immigration Court since the offense is deportable, because it is possible crime of moral turpitude and possibly an aggravated felon with the use of a firearm. It is also made to be deportable because it involves drugs.

Also keep in mind, even if you were to obtain an Expungement under PC 1203.4, this does not absolve your record of the felony conviction for this charge. An expungement will not remove the status of “felony”, thus you can still not own or possess a firearm even with an expunged criminal case.

Common Defenses

1. Statute of Limitations
2. Violation of Rights
3. Insufficient Evidence
4. Entrapment

Entrapment occurs when police, or their agents, encourage or promote the crime by way of their overbearing conduct. The idea has to be formed in the mind of the police, and not on the Defendant, in order to successfully use this defense. Here, an undercover officer could lure by pressure a drug sale to you, knowing you are armed. Once the transaction ends, and you have possession of the drugs, and you are armed, you can be arrested for a violation of HS 11370.1. If the contact is so outrageous to overwhelm and convince you to violate this section, the defense Entrapment would be available to that person to defend that, but for the police’s overbearing conduct, you would not have committed this offense.

Also, if you lack “knowledge” of the presence of the controlled substance. Simply possessing a firearm, and unknowingly having “possession” of drugs, maybe from another individual in your home, or in your vehicle when stopped by police, you can use your lack of knowledge as a defense. Failing to show that you had knowledge of the presence of the controlled substance would act as a defense – showing there is insufficient evidence to prove you guilty of the crime, and therefore making your charges get dismissed. Have an attorney able to argue the sufficiency of evidence can mean the difference between a dismissal and a felony on your record for life.

Call Today

A felony conviction can irreversibly alter the course of your life, impacting your employment prospects, your constitutional rights, and more. Under Health and Safety Code 11370.1, being convicted for possession of a controlled substance while armed carries particularly severe consequences, including the prohibition of firearm ownership for life—a violation of which may result in further charges under Penal Code 29800.

Why Choose Inland Empire Criminal Defense?

At Inland Empire Criminal Defense, our specialized HS 11370.1 attorney in Ontario has a proven track record of defending individuals faced with these complex charges. Our approach is characterized by a deep understanding of both the legal and personal ramifications of your case.

Our Defense Services Offer:

• Expert Legal Representation: Tailored to the unique aspects of possession of a controlled substance while armed cases.
• Strategic Defense Planning: Developed to address the specifics of your situation and to mitigate potential penalties.
• Comprehensive Support: We provide round-the-clock accessibility to ensure you’re fully supported throughout your legal journey.

Secure Your Future

Facing charges under HS 11370.1 necessitates prompt and assertive action to protect your rights and future. Engaging an attorney experienced in navigating the complexities of such cases is crucial.

Connect With Us for Unmatched Legal Expertise

To discuss your case and explore your defense options, contact our HS 11370.1 Ontario attorney at Inland Empire Criminal Defense. We offer a no-obligation initial consultation and are dedicated to addressing your needs 24/7. Call us today at 909-939-7126. Our office is conveniently located in Ontario, ready to assist you in navigating through this challenging time.