11350. (a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written
prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.
(b) Except as otherwise provided in this division, every person who possesses any controlled substance specified in subdivision (e) of Section 11054 shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code.
(c) Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a) or (b), the judge may, in addition to any punishment provided for pursuant to subdivision (a) or (b), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
(d) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered:
(1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service.
(2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service.
(3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine.
This Health & Safety Code covers the “simple” possession of an illegal drug. When the prosecution is attempting to prove that a defendant is guilty of this offense, it must prove all five elements of the crime. These include:
(1)That the accused person possessed an illegal drug (legally referred to as a controlled substance).
(2)That the Defendant had knowledge that the drug was present on his/her person, or it was within their control.
(3)That the accused knew that the substance was an illegal drug.
(4)The prosecution must prove exactly what the substance was, i.e. that it actually had all the chemical properties to qualify as heroin.
(5)That there was enough of the substance to be ingested for drug consumption purposes.
Case law from the courts is often used to help interpret the actual intent behind the words and statements used in the Health and Safety Code 11350 statute. Applicable interpretations include:
An established interpretation of element #5 (the “usable amount” requirement) holds that mere debris or insignificant traces of an illegal substance do not qualify as a usable amount. However, when defining and amount that is usable, it is irrelevant whether the amount possessed was enough to actually get a user “high.” The requirement merely states that it must be an amount that is usable, as in enough to take ingest even a small portion (i.e. one “hit”) even if it doesn't make the person under the influence.
The accused person does not have to know exactly what kind of illegal substance he or she possessed. It is sufficient in itself that they knew the substance was an “illegal drug.”
In regard to the element of possession, as alluded to above, the person does not have to actually have the drug on their person (i.e. in their pocket) for the prosecution to prove possession. Possession can occur where the person has control over the substance, or the right to use it or exert control over it. An example of this is where a suspect hides a bag of cocaine in a bush next to the park bench where he is sitting. Even though the cocaine is not on his person, he controls is (and thus possesses it) because he determines if it stays there or moves.
An additional note regarding possession is that various people can be considered to possess a certain substance if they share in its control.
Valid Prescription – A possible defense to a charge of H&S 11350 is that the defendant has a valid (legal) prescription to possess and use the substance alleged to be possessed illegally. In order to qualify as a valid prescription, the substance needs to be prescribed by a California licensed physician or other medical professional. Under applicable case law, the prosecutor must show beyond a reasonable doubt that the defendant did not have a right to lawfully possess the substance pursuant to a valid prescription.