Drug crimes defense in San Diego

A drug charge can make it feel as if everything is on hold: your job, your family, your plans. Most people who call about one have never been in serious trouble before, and there is often more room to work with than they expect.

Marcus E. DeBose has defended San Diego clients since 2001. He takes the time to learn what happened and why, looks closely at how the police found the evidence, and then tells your story to the prosecutor and the judge. This page explains how California treats the most common drug charges, which options may help keep a conviction off your record, and what to think about in the first days after an arrest.

Common drug charges under California law

Most drug cases in California are charged under the Health and Safety Code. The exact section matters more than people expect. It controls whether the case is a misdemeanor or a felony, which diversion programs may apply, how the case can affect immigration status, and how the record can be cleared later.

Simple possession: HS 11350 and HS 11377

Health and Safety Code section 11350 covers possession of many narcotics and other listed controlled substances without a valid prescription, including cocaine, heroin, fentanyl and a number of prescription opioids. Section 11377 covers many other controlled substances, including methamphetamine. In everyday terms, both are "simple possession" laws: they make it a crime to have the substance for your own use.

What the prosecution generally has to prove

To convict someone of simple possession, the prosecution generally has to prove each of the following beyond a reasonable doubt:

• You possessed the substance, either by having it on you or by having control over it, or the right to control it, somewhere else.
• You knew the substance was there.
• You knew what it was, meaning you knew of its nature as a controlled substance.
• The substance really was a controlled substance, which is usually confirmed by lab testing.
• The amount was a usable quantity, not just trace residue.

Each of those points can be contested. Cases where drugs are found in a shared car, a shared bedroom or a common area of a home often turn on knowledge and control. Being near a substance, or riding in a car where it was found, is not the same as possessing it.

Related charges that often appear together

Drug cases frequently include more than one count. Common companions are possession of drug paraphernalia under HS 11364, being under the influence of a controlled substance under HS 11550, and, for people under 21, possession of cannabis. These are generally misdemeanors or infractions, but they still create a record, and they can affect which programs you qualify for.

Simple possession after Proposition 47

In 2014, California voters passed Proposition 47. Among other changes, it made simple possession under HS 11350 and HS 11377 a misdemeanor for most people. Before Prop 47, many of these cases could be charged as felonies.

There are exceptions. A person with certain serious prior convictions can still face a felony possession charge, and the 2024 changes described below created a new felony path for some repeat cases. For most people facing a first possession charge, though, the case is generally a misdemeanor.

What a misdemeanor possession case can involve

A misdemeanor possession conviction can carry up to one year in county jail, but many cases resolve without jail, particularly for people with little or no record. Possible outcomes can include probation, fines, drug education or treatment, and in some cases community service or custody. For many people, the bigger risk is not the sentence but the conviction itself. It can appear on background checks, raise questions with licensing boards, and create serious problems for anyone who is not a U.S. citizen.

Older felony possession convictions

Prop 47 also created a way to address older convictions. Under Penal Code section 1170.18, a person with a past felony conviction for an offense that would be a misdemeanor today may be able to ask the court to reclassify it as a misdemeanor. If you have an old felony possession conviction from San Diego County or elsewhere in California, it is worth checking whether it has been reduced, because many people assume it was handled when it was not.

Possession for sale compared with simple possession

Possession for sale is a different charge with different stakes. HS 11351 generally covers many of the same substances as HS 11350, and HS 11378 many of the same substances as HS 11377. The difference is intent: for a possession for sale charge, the prosecution must also prove that the substance was held with the intent to sell it. These charges are generally felonies, and they are not eligible for drug diversion under Penal Code section 1000.

How prosecutors try to prove intent to sell

People rarely say they intended to sell, so these cases are usually built on circumstantial evidence. Officers often point to things like:

• The quantity, compared with what a person might keep for personal use
• Packaging, such as several small bags
• A scale, cash, or a list that looks like a record of sales
• The absence of anything used to consume the drug
• Text messages or social media messages on a phone

An officer with narcotics training may also give an opinion that the drugs were held for sale. That opinion can be questioned like any other evidence.

Other explanations for the same evidence

Each of those factors can have another explanation. People who use regularly may buy larger amounts to avoid repeated purchases. Cash may come from a paycheck, a job that pays in tips, or money set aside for rent. A scale may have nothing to do with drugs. Text messages can be ambiguous, taken out of context, or written by someone else who used the phone. A careful review of the evidence can sometimes move a case from possession for sale back to simple possession, which can change the entire outcome.

Why the distinction matters

• A felony conviction can carry a custody sentence, longer supervision and more lasting effects than a misdemeanor.
• Sale related convictions can carry heavier immigration consequences than simple possession.
• Diversion under PC 1000 is generally not available for possession for sale.
• Options for clearing the record later can be more limited.

If you are charged with possession for sale, the details of the arrest and the evidence of intent deserve close attention from the start. You can read more about how felony cases work on the felony defense page.

Proposition 36 and repeat possession cases

In November 2024, California voters passed Proposition 36. It changed parts of Prop 47 and added a new category for some repeat possession cases, called a "treatment-mandated felony," in Health and Safety Code section 11395.

In general terms, the law allows prosecutors to charge possession of certain hard drugs, such as fentanyl, heroin, cocaine or methamphetamine, as a felony when the person has two or more prior convictions for specified drug offenses. The stated goal is to move people with repeat cases into treatment. In many of these cases, the person may be placed in treatment as part of the case, and completing it can lead to dismissal of the charge. A person who declines or does not complete treatment can face a felony sentence.

For someone with no prior drug convictions, simple possession is generally still a misdemeanor. The new law is recent, courts are still working through how it applies, and the details depend heavily on a person's history and how the case is charged. If you have prior drug convictions, ask Marcus how current law applies to you before assuming your case is a simple misdemeanor. An older conviction that was dismissed or reduced may also matter, so bring whatever records you have.

Cannabis rules after Proposition 64

Proposition 64, passed in 2016, legalized adult use of cannabis in California. In general, adults 21 and older can possess up to 28.5 grams of cannabis and up to 8 grams of concentrated cannabis, and can grow a small number of plants at home, subject to state and local rules. Licensed retailers can sell to adults.

What can still lead to charges

• Possession above the legal limits, or possession by someone under 21
• Selling, or possessing cannabis for sale, without a state license
• Using cannabis in public places where it is not allowed
• Driving under the influence of cannabis, or using it while driving (see DUI defense)
• Cultivation beyond what state and local rules allow

Cannabis also remains a controlled substance under federal law. That matters in San Diego, where federal property, military installations and border crossings are part of daily life. Possession that would be legal on a city street can be treated very differently at a port of entry or on a base, and federal law can also affect immigration questions even when state law allows the use.

Older cannabis convictions

Prop 64 also gave people with older cannabis convictions a way to ask the court to reduce or dismiss them under Health and Safety Code section 11361.8, and California later directed that many eligible records be identified and updated without a petition. That process did not reach every record, so if you have an old cannabis case, it is worth confirming what your record actually shows.

Prescription medications

Many controlled substances are also everyday prescription medications: opioid pain relievers, stimulants prescribed for attention disorders, anti-anxiety medications and some sleep aids. Having your own medication, prescribed to you, is generally lawful, and a valid prescription can be a complete defense to a possession charge. Problems tend to arise when:

• The pills were prescribed to someone else, such as a spouse, parent or friend.
• You could not show the prescription at the time, or the pills were not in their original container.
• The amount, or the way the pills were packaged, led officers to suspect sale.
• Officers suspected the prescription was obtained improperly, such as through an altered prescription or visits to several doctors.
• The medication may have affected your driving.

Pharmacy records, prescriber records and medical history can sometimes resolve a case early, which is why it helps to gather them quickly. Cases that involve allegations of prescription fraud are more complex and can carry their own consequences, particularly for people who work in health care and hold a license.

Searches, stops and warrants

Many drug cases turn on the search. The Fourth Amendment protects people against unreasonable searches and seizures. When police find evidence through an unlawful stop or search, your attorney can ask the court to suppress it with a motion under Penal Code section 1538.5. If the key evidence is excluded, the prosecution may not be able to go forward.

Traffic stops

Many San Diego drug cases begin with a traffic stop. An officer generally needs reasonable suspicion of a traffic violation or other offense to pull a car over. The stop generally may last only as long as needed for its purpose, such as checking a license and writing a citation. Extending a stop to wait for a drug detection dog, or to investigate something unrelated, can be challenged when the officer lacked a separate legal basis for the delay.

Consent

Officers often ask a version of "Mind if I take a look?" If you agree, the search may be valid without a warrant. But consent has to be voluntary, and it is limited to what you agreed to. Whether someone truly consented, or simply did not feel free to say no, is often disputed. You can decline a search politely. Declining is not a crime, and it does not by itself give an officer a reason to search.

Warrants

A search warrant must be supported by probable cause and must describe the place to be searched and the items to be seized. Warrants can be challenged when the supporting affidavit is weak or stale, when the search went beyond what the warrant allowed, or when the affidavit included false or misleading statements. Phones are a common issue: police generally need a warrant to search the contents of a cell phone, and the California Electronic Communications Privacy Act adds its own protections for digital information.

Other common search issues

• Probation and parole searches. People on probation or parole with a search condition can generally be searched without a warrant, but the search must stay within the condition, and the officer generally must have known about it.
• Cannabis odor. Since cannabis became legal for adults, California courts have looked more closely at searches based mainly on the smell of cannabis or on a small, legal amount.
• Shared spaces. Who owns a car, who lives in a room and who had access matter both to the search and to whether you possessed what was found.
• Statements. Questioning in custody generally requires Miranda warnings, and statements taken in violation of those rules can be challenged.

Drug diversion under Penal Code 1000

For many people facing a first possession charge, diversion is the most important part of the case. Under Penal Code section 1000, a person charged with certain drug offenses may be able to complete a program instead of moving toward a conviction. Since 2018, PC 1000 has been a pretrial diversion program, which means that in general you do not have to plead guilty to enter it.

Charges that may qualify

PC 1000 generally covers simple possession and closely related offenses, such as HS 11350, HS 11377, possession of paraphernalia under HS 11364, and being under the influence under HS 11550, among others. Possession for sale and other sale related charges generally do not qualify.

Who may be eligible

In general, a person may be eligible if all of the following are true:

• They have no prior conviction for a drug offense other than the kinds of offenses that qualify for PC 1000.
• The current offense did not involve violence or a threat of violence.
• There is no evidence of a drug offense other than the qualifying ones.
• They have no felony conviction within the five years before the current offense.

How the program generally works

If you are eligible and choose diversion, the criminal case is put on hold while you complete a drug education or treatment program. The program usually lasts many months, and the court sets the length. You may need to attend classes or treatment, pay program costs, and appear in court for progress reviews.

If you complete the program, the charges are dismissed. Under Penal Code section 1000.4, the arrest is then generally treated as if it did not occur, and in most situations you can say you were not arrested or granted diversion. There are exceptions, including some applications for peace officer positions, where the arrest can still be disclosed.

If you do not complete the program, or pick up a new case, the court can end diversion and the original case resumes. That is one reason to take the program seriously from the first day.

Diversion and immigration

For non-citizens, the fact that PC 1000 no longer requires a guilty plea can be significant. Under the older version of the law, many people entered a plea as part of deferred entry of judgment, and that plea could be treated as a conviction for immigration purposes even after the case was dismissed. Penal Code section 1203.43 now gives some people who completed the old program a way to withdraw that plea. If you are not a U.S. citizen, ask about immigration advice before entering any program or plea.

Drug court and other treatment options

For people who do not qualify for PC 1000, or whose cases involve repeat use or addiction, other options may be available.

Collaborative courts

Many California courts run collaborative or treatment courts, often called drug courts. These programs generally combine supervision, regular court check-ins, drug testing and treatment, with the judge, prosecutor, defense attorney and treatment providers working together. They are often more demanding than a standard probation grant, but successful completion can lead to a reduced or dismissed charge or a shorter period of supervision, depending on the program and the case. Whether a program fits your situation, and which programs are currently available in San Diego County, is something to discuss with your attorney before you commit.

Other diversion programs

• Misdemeanor diversion. Penal Code section 1001.95 allows a judge to grant diversion for many misdemeanor charges, with some exclusions. See misdemeanor defense.
• Mental health diversion. Penal Code section 1001.36 may allow diversion when a diagnosed mental health condition was a significant factor in the offense.
• Military diversion. Current and former service members charged with misdemeanors may be eligible under Penal Code section 1001.80. See military diversion.

Treatment as part of a negotiated outcome

Even outside a formal program, starting treatment or counseling on your own can matter. It can show the prosecutor and the judge that you have taken the situation seriously, and it can support a request for a reduced charge or an alternative sentence. Talk with your attorney about how and when to share that information, so it helps your case rather than being treated as an admission.

How a drug case moves through San Diego courts

Drug cases in San Diego County are heard in the Superior Court, generally at the Central Courthouse downtown or at the regional courthouses in El Cajon, Chula Vista and Vista, depending on where the arrest happened. Marcus also handles cases at the Southwest Justice Center in Murrieta, which serves southwest Riverside County.

Arraignment

The first court date is usually the arraignment, where the charges are formally presented, a plea of not guilty is generally entered, and release conditions can be addressed. In many misdemeanor cases, an attorney may be able to appear for you. For more, see what to expect at an arraignment.

Discovery and pretrial conferences

After arraignment, the defense receives the police reports, body camera video, lab results and other evidence. There are usually one or more pretrial conferences where the attorneys discuss the case with the judge. This is often when diversion, a reduced charge or another resolution is negotiated, and when search issues come into focus.

Preliminary hearing in felony cases

In a felony case, such as possession for sale, the prosecution generally must show at a preliminary hearing that there is enough evidence for the case to go to trial. This hearing can be an early chance to test the evidence and question the officers under oath.

Motions and trial

Search issues are generally raised through a motion to suppress. In a felony case, that motion can sometimes be heard together with the preliminary hearing. If the case does not resolve, it can go to trial, where the prosecution must prove every element beyond a reasonable doubt to a jury.

How long it can take

A misdemeanor possession case that goes to diversion may move quickly at the start and then stay open while the program is completed. Felony cases, and cases with contested searches, often take longer. It is usually better to move carefully than quickly, because the first offer is often not the only one on the table.

Immigration, licenses and other consequences

Immigration consequences for non-citizens

For anyone who is not a U.S. citizen, including lawful permanent residents and visa holders, a drug case can carry immigration consequences far more serious than the criminal penalties. Under federal immigration law, many drug offenses, including some minor possession offenses, can affect a person's ability to stay in the United States, return after travel abroad, or become a citizen. Sale related offenses can be treated even more severely. A state court dismissal or expungement may not remove the immigration effect of a conviction.

California law requires defense attorneys to advise non-citizen clients about immigration consequences and to try to reduce them. Because immigration law is complex and changes, it is generally wise to get advice from an immigration attorney as well before entering any plea or program. Do not assume a small case is safe, and tell your defense attorney about your status at the very first meeting.

Professional licenses

Nurses, pharmacists, physicians, teachers, real estate agents, contractors and many other licensed professionals may face questions from their licensing boards after a drug arrest or conviction. Some boards ask about convictions on applications or renewals, and some professionals have their own reporting duties. Health care workers can face added scrutiny when a case involves prescription drugs. A dismissal after diversion can often put you in a better position than a conviction, but the rules vary from board to board, so it helps to understand them before the case is resolved.

Jobs, students, housing and family

A conviction can appear on background checks for jobs and rentals. College students may face school discipline in addition to the court case. People who drive for a living may face added consequences when a case involves driving. Parents in custody matters may find that a drug case comes up in family court. Each of these is worth raising early, because they can shape which outcome is worth working toward.

Service members

San Diego has a large military community, and the military's own drug policies are strict. Service members may face command consequences in addition to the civilian case. The military diversion page explains an option that may apply to some misdemeanor charges.

Clearing a drug case from your record

Even when a conviction cannot be avoided, there are often ways to reduce its long term impact. Depending on the case, options can include:

• Dismissal after diversion. A completed PC 1000 program ends in dismissal, and the arrest record may be sealed.
• Dismissal after probation. Many drug convictions can be dismissed under Penal Code section 1203.4 once probation is complete.
• Prop 47 reclassification. Some older felony possession convictions may be reduced to misdemeanors under Penal Code section 1170.18.
• Cannabis relief. Many older cannabis convictions can be reduced or dismissed under HS 11361.8.
• Withdrawing an old diversion plea. Some people who completed the older deferred entry of judgment program may withdraw their plea under Penal Code section 1203.43.
• Felony reductions. Some felony convictions for offenses that can be charged either way may be reduced to misdemeanors under Penal Code section 17(b).

Each option has its own rules and limits. A state court dismissal generally does not erase federal immigration consequences, and some applications, such as for a state license, can still require disclosure. Learn more on the record sealing and expungement page.

Working with Marcus on a drug case

What to do now

• Do not discuss the case with police, friends or co-workers, and do not post or text about it.
• Write down what you remember about the stop or search while it is fresh: where you were, who was there, what was said, and whether you were asked for consent.
• Keep any citation, property receipt, release paperwork or bail documents.
• If medication was involved, gather your prescription and pharmacy records.
• If you are not a U.S. citizen, say so at the start of your first conversation with an attorney.
• Do not miss a court date. A missed date can lead to a warrant and make every other problem harder.

How Marcus works

When you hire Marcus, you work with Marcus directly, and you have direct access to him, day or night. Every case starts with a long first conversation about what happened and why, and about your life outside the case: your work, your family, your health and your goals. That background often matters as much as the police report when it is time to talk with the prosecutor and the judge.

Marcus has defended clients in San Diego courts since 2001. Early in his career he carried a caseload of 125 felony cases at one time, and he has won multiple "Not Guilty" verdicts at jury trial. He is a graduate of the University of San Diego School of Law and speaks English and Spanish. Many of his clients have never been in trouble before, and he understands how unsettling a drug arrest can be. You can learn more about Marcus or read about his broader criminal defense work.

If you are facing a drug charge anywhere in San Diego County or southwest Riverside County, book a free consultation. Meet Marcus at the Mission Valley office, or talk by phone or Zoom. Hablamos español.

This page is general information about California law, not legal advice for your situation. Every case is different, and past results do not guarantee a similar outcome.