CA HS 11350: Penalties, Diversion, and Defense Options

A charge under California Health and Safety Code 11350 means you are accused of possessing certain controlled substances without a valid prescription. Since Proposition 47 passed in November 2014, this is a misdemeanor in almost every case, punishable by up to one year in county jail. Felony exposure now applies only to defendants with specific serious prior convictions, and many first-time defendants qualify for pretrial diversion that ends with the charges dismissed entirely.

Which Drugs Fall Under HSC 11350

The statute does not cover every illegal drug. It reaches specific subsections of California’s drug schedules, mainly opiates, opium derivatives, cocaine, and a narrow set of hallucinogens.¹ The substances charged most often are:

Heroin, listed as an opium derivative under HSC 11054(c).²
Cocaine, listed under HSC 11055(b) with coca leaves and ecgonine.³
Prescription opioids including codeine, hydrocodone, oxycodone, morphine, oxymorphone, and fentanyl, all in HSC 11055(b) and (c).³
Mescaline and peyote, covered through specific paragraphs of HSC 11054(d).²

Methamphetamine, PCP, ecstasy, ketamine, GHB, and LSD are not charged under HSC 11350. They fall under HSC 11377. Marijuana has its own provisions. If you were arrested for possession of one of those substances, this is not the section that applies to your case.

A valid prescription from a California-licensed physician, dentist, podiatrist, or veterinarian is a complete defense to an HSC 11350 charge involving a prescription medication.¹ The statute also protects someone carrying a controlled substance at the direction of the prescription holder solely to deliver or properly dispose of it.

What the Prosecution Has to Prove

Under California’s standard jury instruction for simple possession, CALCRIM 2304, the prosecution must prove each element beyond a reasonable doubt:⁴

You unlawfully possessed the substance.
You knew it was there.
You knew it was a controlled substance. Prosecutors do not have to show you knew the drug’s name or legal classification.
The substance was one of the drugs covered by HSC 11350.
There was a usable amount.

Possession does not require the drug to be in your hand or pocket. You can possess something by controlling it or by controlling the place where it sits, either alone or with someone else. Two people can possess the same substance at the same time.⁴

The usable-amount threshold is lower than most people expect. The instruction states plainly that a usable amount “does not have to be enough, in either amount or strength, to affect the user.”⁴ A small visible quantity of powder or a partial pill meets the threshold. Invisible residue on a pipe or baggie does not.

Misdemeanor and Felony Penalties

The Standard Misdemeanor Charge

After Proposition 47, simple possession under HSC 11350 is a misdemeanor in the overwhelming majority of cases.⁵ A conviction carries up to one year in county jail.¹ The statute does not set a stand-alone misdemeanor fine, but California’s general misdemeanor provision caps fines at $1,000 unless another statute says otherwise.⁶ A judge may also impose an additional assessment of up to $70 under HSC 11350(b).

When It Becomes a Felony

A felony filing under HSC 11350 requires a prior conviction for certain serious offenses: any homicide or attempted homicide, sexually violent offenses, lewd acts on a child under 14, solicitation to commit murder, or any serious or violent felony punishable by life or death. Felony exposure also applies if you are required to register as a sex offender.⁷

A felony conviction carries 16 months, two years, or three years in county jail.⁸ If probation is granted, the court must impose at least a $1,000 fine on a first offense or at least $2,000 on a repeat offense, with community service substituted if you cannot pay.¹

Repeat Drug Offenders and the 2024 Proposition 36

Voters passed a new Proposition 36 in November 2024, adding Health and Safety Code 11395, sometimes called the Treatment-Mandated Felony Act. This is a separate charge, not a subsection of HSC 11350, but it can attach to the same possession conduct when the defendant has two or more prior drug convictions for possession or sale.⁹

HSC 11395 is a wobbler, meaning prosecutors can file it as a misdemeanor or a felony. A felony first offense carries up to three years in county jail, and a later conviction can result in state prison time. The law strongly favors treatment. A defendant can plead guilty and agree to complete a court-approved program; on successful completion the court must dismiss the charge and enter no conviction. Courts cannot impose jail or prison unless they first find the person unsuitable for treatment.⁹

The “hard drug” definition under HSC 11395 covers fentanyl, heroin, cocaine, methamphetamine, PCP, and their analogs. It excludes peyote, LSD, mescaline, and psilocybin.⁹

Pretrial Diversion Under Penal Code 1000

For many defendants, the most important part of an HSC 11350 case is diversion. Penal Code 1000 lets eligible defendants complete a drug treatment program instead of proceeding to trial. Finish the program and the charges are dismissed entirely.

HSC 11350 is explicitly listed as a qualifying offense. To be eligible you must meet all four of these conditions:¹⁰

No controlled substance conviction within the past five years.
The current offense did not involve violence or a threat of violence.
No evidence of a separate, unrelated drug violation at the same time.
No felony conviction within the past five years.

The prosecutor decides eligibility. If found eligible, the court sets a diversion hearing, usually at arraignment. If the prosecutor rules you ineligible, the only way to challenge that decision is a post-conviction appeal, so getting a defense attorney involved before that determination matters. Prosecutors sometimes overlook eligibility when caseloads are heavy.

Defense Strategies

The strongest defense targets whichever required element the prosecution is weakest on. A few patterns recur.

Lack of Knowledge

If you did not know the substance was present or did not know what it was, the knowledge elements fail. This comes up most in shared spaces: a friend’s backpack in your car, a roommate’s stash in a common area, something left behind by a previous occupant. The prosecution has to tie the knowledge to you personally.

No Possession or Control

Proximity is not possession. In constructive possession cases the prosecution must show you actually controlled the substance or the area where it was found. A passenger in a car where drugs turn up under the driver’s seat is not automatically in possession of anything. Defense counsel will challenge whether the evidence links you to the substance or only to the location.

Unlawful Search or Seizure

A Fourth Amendment motion to suppress is one of the most effective tools in drug cases. If officers stopped you without reasonable suspicion, searched without probable cause or a warrant, or exceeded a valid search’s scope, the drugs can be ruled inadmissible. Without that physical evidence, the case usually collapses.

Valid Prescription or Authorized Transport

A valid prescription defeats any charge involving that prescription medication. The statute also protects someone carrying a controlled substance at the direction of the prescription holder solely to deliver or dispose of it, so picking up a family member’s prescription and carrying it home is not a crime under this section.¹

Immigration and Other Collateral Consequences

The formal sentence is often less disruptive than what follows a conviction.

Immigration

For non-citizens, a drug possession conviction is one of the most dangerous outcomes in the criminal code. Under federal law, any conviction related to a controlled substance makes a person inadmissible: denial of visas, refusal at the border, and removal proceedings all become possible.¹¹ This applies whether the conviction is a misdemeanor or felony under state law.

A later California expungement usually does not remove those consequences. The State Department’s Foreign Affairs Manual states that expungements of controlled substance convictions “do not remove the existence of a conviction” for inadmissibility.¹² A narrow exception may exist for treatment equivalent to the Federal First Offender Act, but it requires a first-time offender, a plea to simple possession, and disposition under a state rehabilitative statute. Any non-citizen facing an HSC 11350 charge should consult an immigration attorney before entering any plea.

Housing

Public housing authorities and Section 8 landlords are federally required to screen for past drug activity. A tenant evicted for drug-related criminal activity faces a mandatory three-year ban on readmission, and housing authorities have broad discretion to impose longer bans or deny applications outright.

International Travel

Canada treats a U.S. drug possession conviction as criminal inadmissibility even at the misdemeanor level. Border officers compare the foreign conviction to the equivalent Canadian offense and can refuse entry. Special permits may be required until enough time has passed since the sentence was fully completed.

Federal Student Aid

Drug convictions no longer affect federal student aid. Pell Grants, federal student loans, and work-study remain available.¹³

Employment and Professional Licensing

A conviction shows up on background checks and can affect employment in healthcare, education, law enforcement, and other licensed professions. Even after a Penal Code 1203.4 dismissal, you must still disclose the conviction when applying for state and local licenses or public office. That is why diversion under PC 1000, which avoids a conviction in the first place, is far more valuable than expungement after the fact.

Clearing an HSC 11350 Conviction From Your Record

After completing probation, you can petition under Penal Code 1203.4 to withdraw your guilty plea and have the case dismissed. The court sets aside the guilty verdict, dismisses the charges, and releases you from most penalties and disabilities of the conviction.¹⁴

The relief has real limits. You can tell most private employers you were not convicted, but you must still disclose the original conviction when applying for public office or for a license issued by a state or local agency.¹⁴ It does not restore firearm rights, and, as noted above, it does not erase the conviction for federal immigration purposes.

1
California Legislative Information. California Health and Safety Code 11350
2
California Legislative Information. California Health and Safety Code 11054
3
California Legislative Information. California Health and Safety Code 11055
4
Justia. California Criminal Jury Instructions – CALCRIM No. 2304
5
California Secretary of State. Proposition 47 – Official Title and Summary
6
California Legislative Information. California Penal Code 19
7
California Legislative Information. California Penal Code 667
8
California Legislative Information. California Penal Code 1170(h)
9
California Secretary of State. Proposition 36 Text of Proposed Laws
10
California Legislative Information. California Penal Code 1000
11
Office of the Law Revision Counsel. 8 USC 1182 – Inadmissible Aliens
12
U.S. Department of State – Foreign Affairs Manual (FAM). Ineligibility Based on Controlled Substance Violations
13
Federal Student Aid. Eligibility for Students With Criminal Convictions
14
California Legislative Information. California Penal Code 1203.4