O.C. fentanyl user arrested again for using drugs in public

Over the holiday weekend, police officers were hard at work keeping the area safe, including making several arrests for illegal drug possession, according to the Huntington Beach Police Department.

In one case, officers responded to a report of someone openly using narcotics. When they made contact, the individual was clearly under the influence.

A quick search revealed he had fentanyl on him — and unfortunately for him, prior records for narcotics offenses. That meant an upgraded charge and a trip to the HBPD jail.

If only the police in Santa Ana would arrest people using narcotics in public…

Overdosing on fentanyl in California carries a very high risk, and the chances have increased significantly in recent years. Here’s a breakdown of the situation:

High Risk of Overdose with Fentanyl:

• Potency: Fentanyl is 50-100 times stronger than morphine. Even a very small amount can be lethal, depending on factors like body size, tolerance, and previous usage.
• Contamination: A major factor in overdoses is that illicit drugs (like heroin, cocaine, methamphetamine, and counterfeit pills) are often contaminated with fentanyl without the user’s knowledge. This means someone might be unknowingly consuming a deadly dose.
• Unknown Purity: Illicitly produced fentanyl is not regulated, so the amount of fentanyl in any given dose can vary wildly. Two milligrams of fentanyl can be lethal, but tested pills have shown more than twice that amount.

Overdose Statistics in California:

• Increasing Deaths: Drug overdose deaths in California have surged, reaching 11,359 deaths in 2023, an age-adjusted rate of 29.4 per 100,000 people. This is the highest rate since data became available in 1999.
• Fentanyl’s Role: Fentanyl is the primary driver of this increase.
  • In 2022, fentanyl and other synthetic opioids were involved in 59% of all overdose deaths in California.
  • Fatal fentanyl overdoses skyrocketed by over 800% from 786 deaths in 2018 to 7,137 deaths in 2023.
  • Fentanyl accounts for 91% of opioid-related deaths in California.
• Leading Cause of Death: Drug-related overdoses are now among the top 10 causes of death in California, claiming as many lives as lung cancer or diabetes and three times as many as car accidents. Among individuals aged 15 to 44, drug overdoses accounted for 28% of all deaths in 2023.
• Emergency Room Visits: In 2023, there were more than 22,000 emergency room visits related to opioid overdoses in California.

The penalties a suspect faces for open drug use and fentanyl possession in Huntington Beach, California, with a prior narcotics record, can be complex and depend on several factors, including the specifics of his prior record, the amount of fentanyl, and how the current charges are filed. Here’s a breakdown of the potential penalties:

1. Open Drug Use (Public Use of a Controlled Substance):

• California Health and Safety Code 11550 (Under the Influence): While not explicitly “open drug use,” being “under the influence” in public is often the basis for such arrests. This is generally a misdemeanor in California.
  • Penalties: Up to 1 year in county jail and/or a fine.
  • Diversion/Treatment: For first-time offenders or those without a violent criminal history, there’s a strong emphasis in California on drug diversion programs (like Proposition 36 or Penal Code 1000) instead of jail time. Successful completion leads to dismissal of charges.
  • Prior Record Impact: A prior narcotics record makes it less likely he’ll qualify for diversion, or if he does, the terms might be stricter.

2. Possession of Fentanyl:

• California Health and Safety Code 11350 (Possession of a Controlled Substance): This is the primary law for possession of fentanyl for personal use.
  • General Classification (Post-Prop 47): Under Proposition 47 (passed in 2014), simple possession of most controlled substances, including fentanyl, for personal use was reclassified from a felony to a misdemeanor.
    • Penalties (Misdemeanor): Up to 1 year in county jail and/or a fine of up to $1,000.
  • Impact of Prior Narcotics Record: This is where the “prior record” becomes crucial.
    • Felony Charges with Priors (Proposition 36 Initiative – new in 2024): A recent ballot initiative (often referred to as a “Proposition 36” effort, but distinct from the original Prop 36 drug treatment law) has aimed to increase penalties for repeat drug offenders. If the suspect has two or more prior convictions for certain drug crimes (like possession or distribution of fentanyl, heroin, cocaine, or methamphetamine), the current fentanyl possession charge can be elevated back to a felony.
      • Penalties (Felony with Priors): If charged as a “treatment-mandated felony” under this initiative, the suspect could face up to three years in state prison if they do not complete a mandated treatment program. If they plead guilty and successfully complete treatment, the felony charge can be dismissed.
    • “Serious” or “Violent” Prior Convictions: If the prior narcotics offenses were classified as “serious” or “violent” felonies under California’s “Three Strikes” law, or certain sex crimes, the current possession charge could also be filed as a felony, and the penalties would be significantly harsher, potentially leading to state prison time (16 months, 2 or 3 years, or even more if it leads to a “strike”).
    • Health and Safety Code 11370.2/11370.4 (Sentence Enhancements): Depending on the specifics of the prior convictions (e.g., if they involved drug sales or large quantities), there could be sentence enhancements applied to the current charge, adding years to a potential prison sentence.

3. Possession for Sale (Health and Safety Code 11351) or Sale/Transportation (Health and Safety Code 11352):

• If the amount of fentanyl found was significant, or if there was other evidence (like packaging materials, scales, large amounts of cash), prosecutors could argue that the possession was “for sale” rather than personal use. These are always felony charges and carry much stiffer penalties.
  • Possession for Sale (HS 11351): 2, 3, or 4 years in state prison. Prior convictions would significantly impact sentencing and could trigger “Three Strikes” enhancements.
  • Sale/Transportation (HS 11352): 3, 4, or 5 years in state prison. Again, prior convictions and the amount involved would lead to much longer sentences and significant fines.

Factors the Court Will Consider:

• Specifics of the Prior Record: The exact nature and dates of the previous narcotics offenses (misdemeanor, felony, jail time, prison time, drug program completion).
• Amount of Fentanyl: While simple possession is usually a misdemeanor, a larger amount could lead to charges of possession for sale.
• Other Evidence: Presence of drug paraphernalia, scales, cash, multiple baggies, etc.
• Huntington Beach Local Ordinances: While state law governs the main drug charges, local ordinances might exist regarding public nuisance or public intoxication that could add minor charges or fines, though the state drug laws are the most significant.
• Probation/Parole Status: If the suspect was on probation or parole for a prior offense, this new arrest would likely result in a probation or parole violation, leading to separate penalties in addition to the new charges. This could mean immediate incarceration to serve out a previously suspended sentence.
• Judge’s Discretion: Even with guidelines, judges have some discretion in sentencing based on the individual circumstances and the defendant’s history.

In summary, given a prior record for narcotics offenses, the suspect faces:

• Likely misdemeanor charges for the open drug use (under the influence).
• Potentially a felony charge for fentanyl possession due to the prior narcotics record, especially under recent legislative changes targeting repeat drug offenders. This could result in state prison time, particularly if he fails to complete any mandated treatment.
• A probation/parole violation, which could lead to immediate incarceration.

Art Pedroza Editor

Our Editor, Art Pedroza, worked at the O.C. Register and the OC Weekly and studied journalism at CSUF and UCI. He has lived in Santa Ana for over 30 years and has served on several city and county commissions. When he is not writing or editing Pedroza specializes in risk control and occupational safety. He also teaches part time at Cerritos College and CSUF. Pedroza has an MBA from Keller University.

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