Possession of a Controlled Substance & Armed

In order to prove that an individual is guilty of violating California Health and Safety Code Possession of a Controlled Substance & Armed HSC 11370.1, the prosecution will need to establish the presence of seven elements, making this crime one of the more complex in terms of proving culpability. As noted in the Judicial Council of California’s Criminal Jury Instructions the seven elements that must be demonstrated by the prosecution in order to demonstrate guilt are as follows:

1. The individual unlawfully possessed a controlled substance & armed;
2. The individual knew of the presence of the controlled substance & armed;
3. The individual knew that the substance’s nature or character was that of a controlled substance;
4. The controlled substance was cocaine, methamphetamine, heroin, PCP, or an analog thereof;
5. The controlled substance was enough to be a usable amount;
6. While possessing the controlled substance, the individual was in possession of a loaded, operable firearm that was available for immediate offensive or defensive use; AND
7. The individual knew that they did in fact have the firearm available to them for immediate use.

The use of the phrase controlled substance here might be misleading, as its use on common parlance generally refers to a wider category of narcotics. However, for the purposes of this crime, the phrase controlled substance is only in reference to cocaine, methamphetamine, heroin, PCP, or an analog of these four drugs. What is meant by analog is illuminated for us by California’s Health and Safety Code 11401. A controlled substance analog can mean, “A substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance classified in Section 11054 or 11055 or a synthetic cannabinoid compound defined in Section 11357.5.” In addition, a controlled substance analog can also be in reference to:

A substance that has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance classified in Section 11054 or 11055 or a synthetic cannabinoid compound defined in Section 11357.5

Another important word to understand that comprises a crucial part of the elements of this crime is the word “possess”. Like controlled substances, possess means something in general usage, but it also carries with it a legal definition that is critical to understanding the elements of this crime. Possession, when it comes to a controlled substance, can come in two varieties: actual and constructive. Actual possession is what most people probably think of when they think of “possess”. This involves an individual either physically holding an item or having it on their person somewhere. Constructive possession, however, deals with a more figurative type of possession. This means that while an individual may not actually be physically holding the item, it is somewhere where they have control over it or the right to have control over it.

The phrase “usable amount” is also important to fully understand the elements of this crime. The Jury Instructions have this to say about usable amounts:

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.

While there is no set quantity or amount that qualifies them as “usable” the common sense language in use here indicates that it is what a reasonable person would consider a usable amount of drugs.

Finally, the last term it is important to understand to fully grasp California’s Health and Safety Code Possession of a Controlled Substance & Armed HSC 11370.1 is firearm. The Jury Instructions again prove useful here, by defining firearms as, “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.” This highly technical and over-descriptive definition is meant to be as broad as possible so it can cover pretty much anything that could be used as what most people would call a “gun”.