Possession for Personal Use of Heroin Health and Safety | Code 11350Possession for Personal Use of Heroin Health and Safety | Code 11350
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Possession For Personal Use of Heroin Health and Safety Code 11350 [CALCRIM 2304]

  • By: Carlos Navarrete Law Firm
  • Published: March 22, 2021

In order for the prosecution to prove the defendant is guilty of possessing heroin for personal use by proving the following elements are needed to prove this charge:

  1. The defendant unlawfully possessed a controlled substance;
  2. The defendant knew of its presence;
  3. The defendant knew of the nature or character as a controlled substance.
  4. The controlled substance was in a usable amount.

It is not illegal for someone to possess a controlled substance according to subdivision (c) if these apply:

  1. The possession of the controlled substance is with the authorization or direction of the prescription order.
  2. The sole purpose of the possessor is to get rid of the substance or deliver it to the prescription holder for its intended use.

The punishment for any person convicted of a violation of Health and Safety Code 11350 is as follows:

It is a misdemeanor be imprisoned in a county jail for no more than a year. It may instead be filed as a felony if the accused is a Person who has suffered a conviction for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code. As a felony, a violation of this code may be punished with sixteen months, two years or three years in prison.

There are different treatment alternatives to custody that may be available for someone charged with personal use of heroin. Penal Code sections 1000 and 1210 have different criteria to qualify for diversion that may be invoked to avoid custody and get treatment for drug abuse instead.

Sale, Transportation for Sale, etc., of Heroin Health & Saf. Code, § 11352 [CALCRIM 2300]

When the defendant is charged with selling, furnishing, administering, giving away, transporting for sale, or importing heroin, the prosecution must prove the following elements:

  1. The defendant sold/furnished/administered/gave away/transported for sale/imported into California a controlled substance;
  2. The defendant knew of its presence;
  3. The defendant knew of the substance’s nature or character as a controlled substance;
    Element four is given when instructing on transportation for sale:
  4. When the defendant transported the controlled substance, they intended to sell it or that someone else sell it.

The heroin must also be proven to have been in a usable amount.

Anyone who attempts to transport for sale, sell, furnish, administer, etc. shall be punished by imprisonment for a period of two, three, or four years pursuant to subdivision (h) of Section 1170 of the Penal Code.

Offering to Sell, Transport for Sale, Administer, Give Away or Import Heroin Health & Saf. Code § 11352 [CALCRIM 2301]

To prove the defendant is guilty of offering to sell/furnish/administer/give away/transport for sale/import a controlled substance, the prosecution must prove the following elements:

  1. The defendant illegally offered to sell/administer/give away/transport for sale/import into California a controlled substance;
  2. When the defendant made the offer, they intended to sell/furnish/administer/give away/transport for sale/import the controlled substance.

Selling means exchanging a controlled substance for money, services, or anything of value.

Transportation for sale is defined as a movement of the heroin from one location to another, even if the distance is short.

According to the jury instruction, a person administers a substance if he or she applies it directly to the body of another person by injection, or by any other means, or causes the other person to inhale, ingest, or otherwise consume the substance.

The DA does not need to prove that the defendant actually possessed the controlled substance punishment for violating Health & Safety Code 11352 may be by imprisonment for a period of two, three, or four years pursuant to subdivision (h) of Section 1170 of the Penal Code.

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