Section 11379.6 of the California Penal code penalizes the manufacture of controlled substances without authority to do so. This law prohibits the initial and intermediate steps necessary to manufacture a controlled substance.

What does “manufacture” include?

The word “manufacture” includes the conversion, production, derivation, processing, preparation by chemical extraction or chemical synthesis.

What must the prosecution prove?

The prosecution must prove that the accused knew that the substance he or she was manufacturing was a controlled substance. He or she must know that the substance manufactured can only be manufactured under authority or license which the accused does not have.

For example, in a case decided by the California Supreme Court, a man who was an ex-Marine was hired to wash discarded or dirty cold pills in a makeshift laboratory. He thought that he was merely washing them so that they can be resold. He had heard of ephedrine and he knew that this was used by body builders to induce loss of fat and the development of muscles. He has also heard of methamphetamine, but he did not know that methamphetamine could be manufactured from ephedrine pills.

He did not know that washing the pills was part of the procedure to extract the pseudoephedrine from the cold tablets to manufacture methamphetamine. He did not know, either that his job of washing the pills was followed by the mashing of the tablets, mixing them with alcohol and heating the alcohol to evaporate it and leave the pseudoephedrine behind. The last step of the process was performed in another location, that of adding hydriodic acid to the extracted pseudoephedrine to convert it into methamphetamine.

When he learned this, he got scared and left. As he was driving away, he was arrested and charged with manufacturing a controlled substance. During his trial, an expert testified that pseudoephedrine is not a controlled substance, but extracting pseudoephedrine is a necessary step in the process of manufacturing methamphetamine.

After his trial, the court instructed the jury that the crime of manufacturing a controlled substance was a strict liability offense and knowledge of the physical character of the substance need not be proved. The judge further told the jury that if the product of the defendant was methamphetamine, the defendant was guilty even if he had no idea that methamphetamine could be manufactured.

The jury found the defendant guilty of manufacturing methamphetamine. The defendant appealed to the Court of Appeal. The Court of Appeal reversed the conviction. The Supreme Court sustained the reversal by the Court of Appeal and held that to successfully prosecute section 11379.6, there is a requirement to prove that the defendant knew the character of the substance being manufactured.

What is the basis for the computation of the penalty for manufacturing a controlled substance?

The quantity of the controlled substance manufactured determines the severity of the penalty to be imposed on the accused. In determining the quantity of the controlled substance, the focus is not on the quantity or the purity of the substance seized.

In a case decided in 1993, police officers conducted a raid on a duplex in Carson City. They found that the duplex unit was used solely to manufacture methamphetamine. They found a vat with liquid, chemicals used in the process of making methamphetamine, burners and vials. They found less than 25 gallons of pure methamphetamine. The accused argued that because the methamphetamine in liquid form had other chemicals mixed in it, what should be considered is only the pure methamphetamine that may be produced from the liquid. In his case, since less than 25 gallons of pure methamphetamine could be produced, his penalty should not be enhanced by ten years. The court ruled that it is the quantity of the controlled substance found and not the purity of the controlled substance.

The defendant also questioned the further addition of three years to his sentence because of a prior conviction for manufacture of a controlled substance. He claimed that since the prior conviction for manufacturing a controlled substance was made in New York, it cannot be considered in enhancing his sentence in this conviction in California. The court agreed with the defendant and ruled that a conviction in a foreign court cannot be made the basis for enhancing the penalty in California. The statute only allows for enhancement of a sentence when the prior conviction was for a violation of the same section 11379.6 of the California Penal Code.

Have you been charged with manufacturing a controlled substance? You need the assistance and advice of a competent and experienced criminal defense lawyer. The lawyers at Ramiro J. Lluis Law Office can help you. Call and speak to them today.