Simple drug possession in California is charged under Health & Safety Code §11377 (methamphetamine and certain controlled substances) and Health & Safety Code §11350 (most narcotics, including cocaine, heroin, oxycodone, and unprescribed prescription opioids). Both are misdemeanors under Proposition 47, punishable by up to 1 year in county jail, with most first-time cases eligible for diversion and dismissal under Penal Code §1000 or §1001.95. The Law Office of Zak Fisher represents people charged with drug possession across Los Angeles County for a flat fee, with a free 20-minute consultation for anyone facing a pending charge.
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What Health & Safety Code §11377 and §11350 cover
HS §11377 makes it a misdemeanor to possess methamphetamine, MDMA (ecstasy), GHB, ketamine, PCP, and certain other controlled substances listed in Schedules III, IV, and V of the federal Controlled Substances Act and California Schedule III.
HS §11350 makes it a misdemeanor to possess most Schedule I and II narcotics, including cocaine, heroin, opium derivatives, oxycodone, hydrocodone, and other prescription opioids when held without a valid prescription. LSD, psilocybin, and peyote are also covered.
Both statutes became misdemeanors in 2014 under Proposition 47. Prior to Prop 47, both could be filed as felonies. A felony filing is still possible for defendants with certain prior “super strike” convictions under Penal Code §667(e)(2)(C)(iv) or required to register under PC §290.
What the prosecution must prove
To convict on a simple possession charge under either §11377 or §11350, the prosecution must prove beyond a reasonable doubt that:
- The defendant possessed a controlled substance,
- The defendant knew of its presence,
- The defendant knew of the substance’s nature or character as a controlled substance,
- The controlled substance was in a usable amount, and
- For §11350, the defendant did not have a valid prescription from a licensed medical professional.
“Possession” can be actual (on the person) or constructive (in a place under the defendant’s control, such as a car glove box or apartment). Constructive possession requires more than mere proximity. The prosecution must show dominion and control plus knowledge.
“Usable amount” excludes mere residue or trace amounts that could not be ingested. Under People v. Leal, 64 Cal.2d 504 (1966), a tiny residue insufficient for use is not enough to support a possession conviction.
Common defenses to drug possession in California
- Unlawful search and seizure: Most drug cases turn on how the drugs were found. A motion to suppress under Penal Code §1538.5 challenges the legality of the stop, detention, frisk, search of the person, search of the vehicle, or search of the residence. Successful §1538.5 motions usually result in dismissal because the prosecution cannot proceed without the suppressed evidence.
- No knowledge of presence: If the defendant did not know the substance was there (drugs left by a passenger, hidden in a borrowed bag, planted), the knowledge element fails.
- No knowledge of nature: The defendant must know the item is a controlled substance, not just that it exists.
- No dominion and control: Presence in a car or home where drugs are found is not enough by itself.
- Not a usable quantity: Residue on a pipe or in a baggie may be insufficient under Leal.
- Valid prescription: For §11350 charges involving prescription medications, a valid prescription is a complete defense.
- Lab issues: The substance must be identified by a qualified analyst using accepted methods. Field tests are not enough at trial.
- Miranda challenges: Statements like “those are mine” made in custodial interrogation without Miranda warnings can be suppressed.
- Pitchess motion: Under Evidence Code §§1043 to 1045, prior complaints against the arresting officer for dishonesty, planting evidence, or unlawful searches can be discovered and used at the suppression hearing or trial.
Diversion: how most drug possession cases end
The most common, and usually best, outcome in a first-time misdemeanor drug possession case is diversion. California has multiple diversion programs that can lead to full dismissal:
Penal Code §1000 deferred entry of judgment
The original drug diversion statute. Available for many non-violent simple possession charges. The defendant enters a plea, the court defers entry of judgment, and the defendant completes a drug education program (often 6 to 18 months). On successful completion, the charge is dismissed and the arrest is treated, for most purposes, as not having occurred.
Penal Code §1001.95 misdemeanor diversion
Enacted in 2021, this is a broader judicial diversion that applies to most California misdemeanors. The court can divert a case for up to 24 months on conditions tailored to the offense (treatment, classes, community service, restitution). Upon successful completion, the case is dismissed and the defendant can lawfully state the arrest never occurred (with limited exceptions).
Penal Code §1001.36 mental health diversion
Available when the defendant suffers from a qualifying mental disorder (excluding antisocial personality disorder, borderline personality disorder, and pedophilia) that played a significant role in the offense. Treatment plan can last up to 2 years. On successful completion, the case is dismissed and records are sealed.
Proposition 36 / drug court
Probation with mandatory drug treatment in lieu of jail for many non-violent drug offenses.
Military diversion under Penal Code §1001.80
Available for current or former members of the U.S. military suffering from a service-related condition (PTSD, TBI, substance abuse, mental health issues).
Penalty ranges if not diverted
Misdemeanor §11377 or §11350
- Up to 1 year in county jail (jail is rare on a first offense without aggravating factors)
- Fines up to $1,000 plus penalty assessments
- Summary probation up to 3 years
- Possible drug counseling and Narcotics Anonymous attendance
Felony filing (post-Prop 47, limited circumstances)
- 16 months, 2 years, or 3 years in county jail under Penal Code §1170(h)
- Applies only to defendants with certain prior “super strike” convictions or PC §290 registration requirements
What happens at a Los Angeles drug possession arraignment
Drug possession cases are filed in the misdemeanor calendar of the courthouse covering the arrest location. Common venues include:
- Clara Shortridge Foltz Criminal Justice Center (210 W Temple St, Los Angeles) for many LAPD arrests downtown
- Metropolitan Courthouse (1945 S Hill St, Los Angeles) for misdemeanor filings in central LA
- Airport Courthouse (11701 S La Cienega Blvd) for Westchester, LAX, and the West LA area
- Van Nuys Courthouse (6230 Sylmar Ave) for the San Fernando Valley
- Pasadena Courthouse (300 E Walnut St) for Pasadena and the foothill cities
- Long Beach Courthouse (275 Magnolia Ave) for South Bay matters
- Beverly Hills Courthouse (9355 Burton Way) for Beverly Hills and West Hollywood
At arraignment, the court reads the complaint, addresses bail (most simple possession defendants are released on own recognizance), and takes a plea. Under Penal Code §977, a represented defendant in a misdemeanor case can authorize counsel to appear at most future court dates without personally attending. After arraignment, the case moves to pretrial conferences for discovery review, motion practice, and diversion negotiation.
How the Law Office of Zak Fisher handles drug possession cases
Each case begins with a free 20-minute consultation to identify the substance, the search circumstances, the defendant’s prior record, and any diversion eligibility. If the case is taken, the fee is flat and quoted in writing before engagement. The first move in most cases is to evaluate the police report and bodycam footage for Fourth Amendment issues, then determine whether to file a §1538.5 motion or pursue diversion under §1000, §1001.95, §1001.36, or §1001.80. The practice personally appears at every court date and answers texts and emails within one business day.
Contact
Law Office of Zak Fisher
8335 W. Sunset Blvd., Suite 354
West Hollywood, CA 90069
Phone: (310) 818-7461
Email: info@zakfisherlaw.com
Hours: Monday through Thursday 10:00 AM to 4:30 PM, Friday 10:00 AM to 4:00 PM
Book a free 20-minute consultation
Frequently asked questions about drug possession in California
Is drug possession a felony or misdemeanor in California?
Simple possession of most controlled substances under Health & Safety Code §11377 and §11350 is a misdemeanor in California after Proposition 47 (2014). It remains a felony only for defendants with certain prior “super strike” convictions or who are required to register under Penal Code §290. Possession for sale, transportation, and manufacturing are separate, more serious charges that remain felonies.
Can a drug possession charge be dismissed?
Yes, frequently. First-time simple possession cases are usually eligible for one or more diversion programs (PC §1000, §1001.95, §1001.36, §1001.80). On successful completion of the assigned program, the case is dismissed and the defendant can lawfully state the arrest never occurred in most contexts. Cases with serious Fourth Amendment problems can also be dismissed outright after a successful motion to suppress.
What is the difference between HS §11377 and §11350?
§11377 covers methamphetamine, MDMA, GHB, ketamine, PCP, and certain Schedule III through V substances. §11350 covers cocaine, heroin, opium derivatives, LSD, psilocybin, and prescription opioids like oxycodone and hydrocodone when held without a valid prescription. Both are misdemeanors with up to 1 year of county jail exposure under Prop 47.
Can I be convicted if the drugs were not mine?
Only if the prosecution can prove constructive possession beyond a reasonable doubt. That requires showing the defendant had dominion and control over the substance and knew it was there and knew what it was. Mere presence near drugs (in a car with a friend, in a shared apartment) is not enough.
What is a usable amount?
Under People v. Leal, 64 Cal.2d 504 (1966), the substance must be in a quantity that could be used as a controlled substance. Mere residue on a pipe or trace amounts insufficient for any effect do not support a possession conviction.
Do I have to talk to the police if they find drugs?
No. Once you have been detained or arrested, invoke your Fifth Amendment right to remain silent and your Sixth Amendment right to counsel, and stop talking. Statements like “those are mine” or “I just bought it” are some of the most damaging evidence in drug cases and are not necessary for the police to complete their investigation.
Can the police search my car if they smell marijuana?
Since the passage of Health & Safety Code §11362.1 and recent appellate decisions like People v. Hall (2020), the odor of marijuana alone is generally no longer probable cause to search a vehicle in California, because adult possession of small amounts is legal. Officers still attempt these searches, and a motion to suppress is often the appropriate response.
What is PC §1000 diversion?
A pretrial diversion program for certain non-violent drug offenses. The defendant enters a plea, the court defers entry of judgment, and the defendant completes a drug education program (often 6 to 18 months). On successful completion, the case is dismissed and the arrest is treated as not having occurred for most purposes.
Can a drug possession case be expunged?
Yes. After successful completion of probation (or successful completion of a diversion program, which results in outright dismissal), a petition under Penal Code §1203.4 (for probation cases) or the dismissal mechanism of the relevant diversion statute clears the conviction from most private background checks. The arrest record can be sealed under Penal Code §851.91 in factual-innocence cases.
How long does a drug possession charge stay on my record?
A conviction remains on the criminal record indefinitely unless expunged under PC §1203.4 or dismissed through diversion. Convictions are visible to law enforcement and licensing boards even after expungement, but most private employer background checks reflect the dismissal once §1203.4 relief is granted.