California “Drug Manufacturing” Laws – Health & Safety Code 11379.6 HS

To be criminally liable for manufacturing a controlled substance in violation of health & safety code 11379.6 hs[1], you need not be engaged in the completion of a final product. Indeed, the statute criminalizes all acts which are part of the manufacturing process whether or not those acts directly result in the completion of a final product.

In other words, a person is punished for the process of manufacturing regardless whether the final product is for personal use or distribution.

Completing the initial or intermediary stages will suffice. For instance, if you manufactured a precursor chemical, like ephedrine, but had not completed the process of manufacturing a controlled substance.[2]

The legislature intended to punish production using chemicals more harshly than other types of extraction because chemical extraction may expose the public to fire, toxicity, or explosions. For example, using butane oil, a flammable solvent, to extract marijuana resin to produce concentrated cannabis.[3]

This charge is applicable to all structures that house the manufacturing of a controlled substance including:

• House or Apartment
• Warehouse
• Building
• Vessel
• Motor Vehicle
• Boat
• Camper
• Any structures capable of holding a child or manufacturing equipment.[4]

What are the Elements to Manufacturing a Controlled Substance?

The prosecution has the burden of proving the following elements beyond a reasonable doubt:

1. You manufactured, compounded, converted, produced, derived, processed, or prepared a controlled substance using chemical extraction or independent chemical synthesis;

2. You knew the substance’s nature or character as a controlled substance.[5]

However, the prosecution does not need to prove that you knew of what particular type of controlled substance is being manufactured. Rather, the prosecution need only show that you knew the substance is some type of illicit drug.

Punishment & Sentencing

HS 11379.6 is a straight felony punishable in the county jail for 3, 5, or 7 years with a maximum fine amount of $50,000. If certain aggravating circumstances exist, then you could face a consecutive two years in addition to your underlying sentence. For example, any one of the following scenarios will be considered a factor in aggravation:

• There was a person under 16 years old residing in the structure where the narcotic was being produced.[6] This will result in an additional two-year prison sentence to run consecutive to your underlying sentence.[7] If great bodily injury results, then the consecutive sentence elevates to five years.[8]

• The act of manufacturing methamphetamine or PCP[9] occurred within 200 feet of an occupied residence or any structure where another person was present at the time of the offense;[10]

• The act of manufacturing a volatile solvent to chemically exact concentrated cannabis occurred within 300 feet from an occupied residence or any structure where another person was present at the time of the offense.[11]

Defenses to California Drug Manufacturing – HS 11379.6

• Preparation: Preparation consists of devising or arranging the means or measures necessary for the commission of the offense. Acts of preparation are insufficient to meet the standard of “manufacturing” since you were not technically engaged in the chemical extraction process.

• Knowledge: An essential element of the offense is that you knew the substance being manufactured was an illicit drug.[12] For instance, allowing others to use your garage or storage space without having knowledge of what the activities were.

• Mere Presence: Mere presence within a narcotic manufacturing structure and with intimate knowledge of the offenses simply make a person an eyewitness and does not, without more, permit a conviction of the person even as an aider and abettor. This means that if you were merely present during the incident, without anything more, then you cannot be convicted of this crime – i.e., mere presence alone is not enough.

Examples of Manufacturing a Controlled Substance

Bill allowed his friends to use his garage who he believed were growing marijuana. After a few months, Bill learned that his friends were actually manufacturing concentrated cannabis. Bill told his friends that he is revoking their stay and they must vacate his garage. Here, since Bill ceased participating in the chemical synthesis and told his friends to vacate when he learned of the true fact, Bill would be not guilty of manufacturing.

Law enforcement execute a search warrant under the belief that Dan was manufacturing drugs. Police locate several items scattered around Dan’s garage inside boxes. These items included PVC pipe, PVC glue, couplings, fittings, adapters, Teflon tape, Pyrex bowls, a butane burner, rubbing alcohol, activated carbon filters, and a metal spigot with an open/close value. Police also found 300 bottles of butane and a sales receipt indicating that the pipe fittings and metal nozzle had just been purchased several hours earlier. Police arrest Dan for attempting to manufacture a controlled substance. Here, the evidence will be deemed insufficient to support an attempt since Dan did not engage in any act beyond preparation to manufacture a controlled substance.

Contact Us to Schedule a Free Consultation

If you have been charged or are under investigation for manufacturing a controlled substance under HS 11379.6, then contact an experienced Newport Beach criminal defense attorney today.[13] Contact the Law Offices of John D. Rogers today to schedule a free confidential case evaluation. Drug crimes are very unique and require you to have skilled representation. Manufacturing charges are taken very seriously, and the consequences are extremely great. Call us today to discuss your rights and defenses.

Legal Footnotes:

[1] California Health & Safety Code 11379.6 (“Except as otherwise provided by law, every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, five, or seven years and by a fine not exceeding fifty thousand dollars ($50,000).”)

[2] See People v. Pierson (2000) 86 Cal.App.4th 983, 985.

[3] See People v. Bergen (2008) 166 Cal.App.4th 161, 167 [defendant use used butane, a flammable solvent, to extract marijuana resin to produce concentrated cannabis was properly charged under Health & Safety Code section 11379.6, rather than Health & Safety Code section 11358].

[4] See Health & Safety Code 11379.7(c) – (“As used in this section, “structure” means any house, apartment building, shop, warehouse, barn, building, vessel, railroad car, cargo container, motor vehicle, housecar, trailer, trailer coach, camper, mine, floating home, or other enclosed structure capable of holding a child and manufacturing equipment.”)

[5] See CALCRIM No. 2330.

[6] See Health & Safety Code 11379.6(b) – (“Except when an enhancement pursuant to Section 11379.7 is pled and proved, the fact that a person under 16 years of age resided in a structure in which a violation of this section involving methamphetamine occurred shall be considered a factor in aggravation by the sentencing court.”)

[7] See Health & Safety Code 11379.7(a) – (“Except as provided in subdivision (b), any person convicted of a violation of subdivision (a) of Section 11379.6 or Section 11383, or of an attempt to violate subdivision (a) of Section 11379.6 or Section 11383, as those sections relate to methamphetamine or phencyclidine, when the commission or attempted commission of the crime occurs in a structure where any child under 16 years of age is present, shall, in addition and consecutive to the punishment prescribed for the felony of which he or she has been convicted, be punished by an additional term of two years in the state prison.”)

[8] See Health & Safety Code 11379.7(b) – (“Any person convicted of a violation of subdivision (a) of Section 11379.6 or Section 11383, or of an attempt to violate subdivision (a) of Section 11379.6 or Section 11383, as those sections relate to methamphetamine or phencyclidine, where the commission of the crime causes any child under 16 years of age to suffer great bodily injury, shall, in addition and consecutive to the punishment prescribed for the felony of which he or she has been convicted, be punished by an additional term of five years in the state prison.”)

[9] https://en.wikipedia.org/wiki/Phencyclidine

[10] See Health & Safety Code 11379.6(c) – (“Except when an enhancement pursuant to Section 11379.7 is pled and proved, the fact that a violation of this section involving methamphetamine occurred within 200 feet of an occupied residence or any structure where another person was present at the time the offense was committed may be considered a factor in aggravation by the sentencing court.”)

[11] See Health & Safety Code 11379.6(d) – (“The fact that a violation of this section involving the use of a volatile solvent to chemically extract concentrated cannabis occurred within 300 feet of an occupied residence or any structure where another person was present at the time the offense was committed may be considered a factor in aggravation by the sentencing court.”)

[12] See People v. Corina (1999) 21 Cal.4th 868 [finding reversible error where trial court stated that prosecution was not required to prove that defendant knew the substance being manufactured was methamphetamine].

[13] Our office of lawyers handles drug cases all throughout southern California including Riverside, Los Angeles, San Fernando Valley, San Bernardino, Ventura, and San Diego counties.