Possession of Drugs to Commit Sexual Assault. Sex Crimes Criminal Defense Lawyers Explain California Penal Code 11377.5 & 11377(a).
- Mar 9
- 6 min read
In California, it is a felony to possess certain commonly used “date rape” drugs while having the intent to commit sexual assault with the use of those “date rape” drugs. This is true even if the defendant never uses the drugs to commit sexual assault (HS 11377.5).
Example: David brings Ketamine with him to the dance club where David intends to slip the “special K” into a girl’s drink. Once the girl is intoxicated with the “date rape” drug, David intents to rape the girl.
Result: David is guilty of HS 11377.5 because he possesses the ketamine with the intent to use it to commit a sexual assault (i.e., rape of an intoxicated person (PC 261(a)(3)). If David follows through with the rape crime, then David may be charged with both possession of a controlled substance to commit a sexual assault (HS 11377.5) and the rape crime (PC 261(a)(3)).
Defendant’s Intent Controls: In the above example, to prove the defendant is guilty of HS 11377.5, the district attorney will have to prove David intended to use the ketamine to commit sexual assault; however, the possession of ketamine itself can be used as circumstantial evidence of David’s intent to commit sexual assault (i.e., rape of an intoxicated person).
Note: Flunitrazepam (Rohypnol), Gamma hydroxybutyric acid (GHB) “Liquid Ecstasy” & Ketamine “Special K” are the most common date rape drugs in sexual assault cases as these drugs create heavy sedation, euphoria, and dissociation for the sexual assault victim.
HS 11377.5 & 11377(a) Compared: A felony violation of HS 11377.5 is charged where the district attorney believes the defendant’s intent to commit a sexual assault can be proved, either by circumstantial evidence or the defendant’s confession.
However, if the defendant’s intent to commit sexual assault with a “date rape” drug cannot be proved, then the district attorney may usually proceed with the misdemeanor “possession of a controlled substance” charge (HS 11377(a)).
Special HS 11377(a) Cases: Where the defendant is a sex offender registrant, and he or she possesses a controlled substance without a prescription, the district attorney may charge a felony violation of HS 11377(a).
Example: David, a sex offender registrant, has a few grams of cocaine in his possession. Cocaine is not typically a “date rape” drug and it is not a drug listed as such in HS 11377.5; however, David’s prior conviction for a registerable sex crime, coupled with his possession of cocaine (i.e., illegal narcotic), means the district attorney may charge a felony violation of HS 11377(a).
HS 11377.5 & Attempt Crimes: A defendant may be charged with both the possession of a “date rape” drug and the attempt to commit a sex offense.
Example: David puts Rohypnol in a girl’s drink at a house party. Later, David takes the intoxicated girl to a bedroom to perform oral copulation on her while the girl is too intoxicated to give valid consent; however, when David starts to pull the intoxicated girl’s pants off, he is caught by other party guests.
Result: David may be charged with both possession of a controlled substance with the intent to commit sexual assault (i.e., oral copulation) and the attempt oral copulation (PC 664-287(a)). For more information, see Attempted Sex Crimes.
Sexual Assault Limited in HS 11377.5: Not every sex crime amounts to a “sexual assault” The sexual assault within the meaning of HS 11377.5.
The sex crimes that trigger HS 11377.5 violations include: sexual battery (PC 243.4), Rape (PC 261(a)), Spousal Rape (PC 262), Sodomy (286), Oral Copulation (PC 287(a)), or Sexual Penetration (PC 289) [HS 11377.5(b)].
Note: Other Sexual assault charges exist under PC 220(a) where the defendant is not accused of possession of a “date rape” drug with the intent to sexually assault another person.
HS 11377.5 Penalties
Felony Classification: HS 11377.5 is always classified as a felony. In other words, the crime does not “wobble” and there is no misdemeanor version of HS 11377.5.
Jail Sentence: If found guilty of possession of a controlled substance with the intent to commit a sexual assault (HS 11377.5), the defendant will face either a probation (See Probation Sentence Below), or a sixteen (16) month, two (2), or three (3) year jail sentence.
Whether the defendant receives a probation sentence, a sixteen (16) month, two (2), or three (3) year jail sentence depends on the presence or absence of any mitigation or aggravation related to the facts of the case and the terms of any plea bargain agreement between the district attorney and the defendant’s criminal defense attorney.
Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail sentence. Probation sentences are allowed after a conviction for felony HS 11377.5, but a probation sentence is not guaranteed.
Whether the defendant receives a probation sentence after a conviction for possession of a controlled substance with the intent to commit sexual assault (HS 11377.5) depends on many factors similar to the factors that determine the length of any jail sentence (See Jail Sentence Above).
Note: When the defendant receives a probation sentence after a conviction for HS 11377.5, the defendant may be ordered to serve a short incarceration period. This is a “term of probation” as opposed to a non-probation incarceration sentence which would be no less than sixteen (16) months.
Suspended Sentence: The jail sentence related to a conviction for HS 11377.5 might be “suspended” by the judge (not served unless the defendant violates a term of his suspended sentence); the jail sentence might even be “split” (partially served in jail and partially served out of jail on work release or post-release community supervision [PRCS]).
CIMT: The crime of possession of a controlled substance with the intent to commit a sexual assault is classified as a “crime involving moral turpitude.” A crime of moral turpitude, including HS 11377.5 crimes, are any criminal acts that involves immoral behavior or deceit.
Crimes involving moral turpitude carry direct and indirect consequences in addition to any jail or probation sentence, including deportation from the United State for non-US citizens, loss of a professional license, discharge from the military, and more. See Immigration Consequences for Sex Crimes Convictions.
Firearm Prohibition: If found guilty, of HS 11377.5, the defendant will lose his or her right to own or possess any firearm, firearm ammunition or body armor for the remainder of his or her life (Subject to possible reinstatement of rights. See PC 4852).
PC 290 Registration: A conviction for possession of a controlled substance with the intent to commit sexual assault is not, by itself, a sex offender registration offense (PC 290).
However, if the defendant conspired with any person, or attempted to commit a sexual assault (beyond mere preparation of possession of the controlled substance), then he or she may be ordered to register as a sex offender (See Attempt Sex Crimes & PC 290 Registration).
Exception: In some cases, where the defendant is motivated by a sexual compulsion to commit the crime of HS 11377.5, the court may order the defendant to register as a sex offender despite the crime not otherwise being a registerable offense (See PC 290.006).
Additional Penalties: In addition to any jail or probation sentence, if found guilty of possession of a controlled substance with intent to commit sexual assault, the defendant will face court fines, fees, criminal protective orders, loss of scholarship, family law rights, and more.
HS 11377.5 Defenses
Depending on the circumstances of the case, common defenses to HS 11377.5 criminal charges include: lack of sufficient evidence to prove defendant’s intent with regard to the controlled substance, non-qualifying controlled substance (See Above), mistake of fact as to the nature of the controlled substance, insufficient evidence to prove “possession,” statute of limitations, coerced confession, violation of Miranda Rights, Plea Bargaining for light sentence or charges, or both, and more.
For more information, see “Date Rape” Crimes, Attempt Sex Crimes & Defenses to California Sex Crimes.
Note: Diversion, also known as “Judicial Diversion,” is not available in HS 11377.5 cases (PC 1001.95); however, other types of diversion, including District Attorney Diversion or Military Diversion for Sex Crimes, may be available in some possession of a controlled substance with intent to commit sexual assault cases.
If you have been charged with possession of a controlled substance with intent to commit sexual assault, or HS 11377.5, contact our sex crimes criminal defense lawyers today for a free consultation.
Our highly experienced attorney have handled hundreds of misdemeanor and felony sex crimes, including penal codes 288(a), 288.5, 287, 289, 286, 285, 311.11, 288.2, 243.4, 261, 209(b), 647(b), 266, 314, 315, 220(a), 288(c), 288(b), 261.5, 269, 288.7, 290(b), and more.
We have successful sex crimes criminal defense trial attorneys ready to answer your questions and we serve all Inland Empire cities and courts, including Rancho Cucamonga, Fontana, Riverside, Ontario, Rialto, Victorville, Yucaipa, Hesperia, Moreno Valley, Banning, San Bernardino, Redlands, Highland, Corona, and more. Call today!
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