California Drug Sentencing Guidelines – A Lawyer Explains

Most California drug possession misdemeanors can be dismissed without jail time through a diversion program. Even for felony-level drug charges like possession for sale or trafficking, judges will usually impose formal probation instead of incarceration unless aggravating factors apply.

In this article, our Los Angeles criminal defense attorneys answer these frequently-asked-questions about California drug sentencing guidelines:

• 1. Can I avoid jail in California drug cases?
  • 1.1. PC 1000
  • 1.2. Prop 36
  • 1.3.  Drug Court
• 2. What are the maximum penalties for drug convictions in California?
  • 2.1. Simple possession (HS 11350)
  • 2.2. Possession for sale (HS 11351)
  • 2.3. Selling and transporting/trafficking (HS 11352)
• 3. What are drug schedules?

1. Can I avoid jail in California drug cases?

PC 1000, Prop 36 and Drug Court permit eligible defendants to undergo education and treatment instead of jail in cases involving simple drug possession (or other minor offenses such as paraphernalia possession).

You are usually not eligible for these programs if you are being prosecuted for possession for sale or drug sales unless your charge gets reduced down to simple possession.

1.1. PC 1000

Upon successful completion of California’s PC 1000 drug diversion program, your drug charge will be dismissed. To be eligible for PC 1000 diversion, the following three conditions must be true:

1. You are facing a PC 1000 eligible offense, such as a simple drug possession charge;
2. The charge you are facing must not have involved a crime of violence (or threatened violence) or a more serious drug crime;
3. You have no conviction for felonies or non-PC 1000 eligible drug crimes in the last five years;

Another benefit of the PC 1000 program is that you do not have to plead guilty to participate. Therefore, if you fail to complete the diversion program, you are not automatically sentenced to jail time; instead, you have the opportunity to go to trial or pursue a plea bargain.

PC 1000 programs are usually 18 months long.¹

1.2. Prop 36

California’s Proposition 36 program differs from PC 1000 (described above) in three key ways:

1. Prop 36 may be open to you even if you have been convicted of serious or violent felonies;
2. Prop 36 is a type of probation, and you can be incarcerated if you violate the terms; and
3. The judge may – but is not obligated – to dismiss your drug case if you successfully complete the education and treatment program.

Prop 36 programs usually last for one year.²

1.3. Drug Court

California Drug Court is a more flexible drug treatment program than PC 1000 or Prop 36, and each jurisdiction’s drug court is a little different. Upon successful completion of Drug Court, your possession charge will usually be dismissed.

If you do not have a criminal history other than drug abuse, you may be accepted into a drug court program without having to plead guilty. This means if you then fail to complete Drug Court, you will not automatically be incarcerated; instead, you can fight the underlying charge at trial or take a plea.

Though if you do have a criminal history, you may be required to enter a guilty plea and go on probation in order to participate in Drug Court. Therefore if you fail to complete the program, the judge can revoke your probation and remand you to jail.³

2. What are the maximum penalties for drug convictions in California?

2.1. Simple possession (HS 11350)

Health and Safety Code 11350 HS prohibits possession of a controlled substance for personal use unless you have a current and valid prescription. (Though possession of marijuana is now legal in California as long as it amounts to no more than 1 ounce.)

Simple possession of an illegal drug is typically charged as a misdemeanor in California, carrying:

• up to 1 year in county jail and/or
• up to $1,000 (or equivalent community service hours)

Though simple possession can be charged as a felony if you have a prior conviction for serious or violent felonies. Simple possession as a felony carries:

• 16 months, 2 years, or 3 years in jail and
• up to $10,000

Note that you can be convicted of simple possession for either:

• actual possession, where the drugs are physically on your person such as in your hand or pocket; or
• constructive possession, where the drugs are under your control (such as in your desk drawer); or
• joint possession, where you and another person (such as your spouse) together own and control the drugs.

Also note that the L.A. County D.A.’s office typically does not prosecute HS 11350 cases at all.⁴

2.2. Possession for sale (HS 11351)

Health and Safety Code 11351 HS prohibits possessing controlled substances with the intent to sell them. This is always a felony charge in California, typically carrying:

• felony (formal) probation or
• 2, 3, or 4 years in jail and up to $20,000

Note that possessing a cocaine base for sale carries harsher penalties:

• 3, 4, or 5 years in jail and
• up to $20,000

2.2.1. Aggravating circumstances

2.3. Selling and transporting/trafficking (HS 11352)

Health and Safety Code 11352 HS prohibits selling or transporting (“trafficking”) controlled substances. This is always a felony in California, carrying:

• felony (formal) probation or
• 3, 4, or 5 years in prison and up to $20,000

Note that transporting controlled substances for sale across two or more county lines within California carries harsher penalties:

• 3, 6, or 9 years in jail and
• up to $20,000

You face an additional sentence for trafficking drugs if any of the following aggravating circumstances apply.

Selling or transporting heroin, cocaine base or cocaine	Additional sentence in California
More than 1 kg to less than 4 kg	3 years in prison and $1 million
4 kg to less than 10 kg	5 years in prison and $4 million
10 kg to less than 20 kg	10 years in prison and $8 million
20 kg to less than 40 kg	15 years in prison and $8 million
40 kg to less than 80 kg	20 years in prison and $8 million
More than 80 kg	25 years in prison and $8 million
Trafficking occurred within 1,000 feet of a drug treatment center, a “detox” facility or a homeless shelter	1 year
Trafficking occurred within 1,000 feet of a school, place of worship, or essentially any other facility where minors are regularly present.	1 or 2 years

• Ecstasy
• GHB
• Heroin
• LSD
• Marijuana (cannabis)
• Peyote/mescaline and most other hallucinogens

3.2. Schedule II drugs

• Amphetamine
• Cocaine
• Codeine
• Fentanyl
• Hydrocodone (Vicodin)
• Methamphetamine
• Morphine
• Opium (prescription drug opiates)
• Oxycodone
• OxyContin
• PCP

3.3. Schedule III drugs

• Anabolic steroids
• Ketamine

3.4. Schedule IV drugs

• Ativan
• Klonopin
• Xanax
• Valium

3.5. Schedule V drugs

• Robitussin AC
• Motofen
• Lomotil⁸