Yes, if the prosecution can prove intent. Health and Safety Code section 11383 makes it a felony to possess certain chemicals, such as piperidine and cyclohexanone together, with the intent to manufacture PCP (phencyclidine), even if no PCP is ever made. Every part of the statute requires that intent; possessing the listed chemicals without it is not a violation of section 11383.

What section 11383 prohibits

Health and Safety Code section 11383 has four prohibitions, each requiring intent to manufacture PCP (subdivisions (a) and (b) also cover listed PCP analogs):

  • Subdivision (a): possessing “at the same time” piperidine and cyclohexanone, pyrrolidine and cyclohexanone, or morpholine and cyclohexanone, or a combination product, or a compound or mixture containing the chemicals in one of those pairs.
  • Subdivision (b): possessing an optical, positional, or geometric isomer of a compound listed in the section.
  • Subdivision (c): possessing a compound or mixture containing any one of piperidine, cyclohexanone, pyrrolidine, morpholine, PCA (1-phenylcyclohexylamine), PCC (1-piperidinocyclohexanecarbonitrile), or phenylmagnesium bromide.
  • Subdivision (d): possessing “immediate precursors sufficient for the manufacture of” piperidine, cyclohexanone, pyrrolidine, morpholine, or phenylmagnesium bromide.

Under subdivision (c), a compound or mixture containing just one listed chemical can be enough when the intent is present; a pair is required only under subdivision (a).

Each is a felony punished under Penal Code section 1170(h) for two, four, or six years. Under section 1170(h), that term is served in county jail unless an exception in paragraph (3) applies, such as a prior or current serious or violent felony conviction or a sex-offender registration requirement, and paragraph (4) keeps other dispositions authorized by law, such as probation, available.

Two of the listed chemicals are controlled substances in their own right: Health and Safety Code section 11055(f)(2) lists 1-phenylcyclohexylamine and PCC as Schedule II immediate precursors to PCP.

What the prosecution has to prove

For subdivision (a), jury instruction CALCRIM No. 2336 lists two elements: the defendant possessed one of the listed pairs at the same time, “either as individual substances or combined together in one substance,” and, when possessing them, intended to use them to manufacture PCP. The same instruction explains that possession does not require physical contact (control, or the right to control, is enough) and that more than one person can possess the same item.

Because intent is an element, how it is proved matters. CALCRIM No. 225 tells jurors that intent “may be proved by circumstantial evidence,” but if the circumstantial evidence supports two reasonable conclusions, one showing intent and one not, they must conclude the intent was not proved by that evidence. Facts such as the quantities, what else was found, where the chemicals were kept, and any statements can bear on intent.

How this differs from a manufacturing charge

Section 11383 punishes possession with intent; it does not require any manufacturing step. Manufacturing a controlled substance is a separate, more serious offense under Health and Safety Code section 11379.6(a), punished by three, five, or seven years under section 1170(h) and a fine of up to $50,000. Under CALCRIM No. 2330, the prosecution need not prove the process was completed, only that the defendant “knowingly participated in the beginning or intermediate steps.” The same instruction allows a manufacturing conviction for synthesizing, processing, or preparing a chemical that is not itself controlled, if the defendant knew it would be used to make a controlled substance. If any processing occurred, that charge may be in play as well.

This is also different from the paraphernalia-possession offense in Health and Safety Code section 11364, which covers devices used for unlawfully injecting or smoking certain drugs.

Who is exempt

Subdivision (e) says the section does not apply to “drug manufacturers licensed by this state or persons authorized by regulation of the Board of Pharmacy to possess those substances or combinations of substances.” For anyone else, section 11383 turns on the intent element, not on this exemption.

If you were charged

Because intent is required under every subdivision, the evidence about why the chemicals were there is central to the defense. The Law Offices of David S. Chesley’s manufacturing defense team can review the chemicals involved, the quantities, and what the prosecution says shows intent. Call (800) 755-5174.