Introduction

Under California law, possessing controlled substances to sell them is typically a felony crime. Possession of drugs for sale includes both prescription drugs and illegal narcotics.

See California Health and Safety Code section 11351: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11351.html

Overview of California Health and Safety Code § 11351

Despite the state's emphasis on treating or rehabilitating individuals who are addicted to narcotics and other controlled substances, possessing a drug to sell is nevertheless still considered to be a serious crime in California. Health and Safety Code § 11351 criminalizes the unlawful custody of narcotics such as cocaine and heroin. Additionally, possession for sale of medication without a valid prescription will also result in charges under this statute.

In most cases, the police officer, sheriff’s deputy, or detective will formally arrest you for possession of a significant amount or weight of illegal drugs. However, the packaging and amount of the drug they find on you could cause them to assume your intent was to sell and, therefore, arrest you on suspicion of violating H.S.C. § 11351.

When establishing your guilt for possession of drugs for sale, the prosecution needs to prove these elements beyond a reasonable doubt:

You Possessed a Controlled Substance

The first element that a prosecutor must establish when charging you under this statute is the possession of narcotics or a controlled medication without a valid prescription. Possession of a drug under this statute means that you had immediate or direct control of the substance.

See: Los Angeles County District Attorney's Office (DA’s Office) (https://da.lacounty.gov) (for felony prosecutions) and Los Angeles City Attorney's Office (CA’s Office) (https://www.lacityattorney.org) (for misdemeanors).

Keep in mind that the simple act of holding a drug does not necessarily mean you “possessed” it in the legal sense. For example, you may have unwittingly been made a drug mule by your relative, who asked you to drop off his golf clubs without your knowledge that there was cocaine stashed therein.

At trial, the prosecutor will introduce laboratory test results confirming that the substance in your possession was indeed legally restricted. He or she may also employ testimony from professional witnesses to prove your control over the substance.

See CALCRIM Number 2304 (“Simple Possession of Controlled Substance -- Health & Saf. Code §§ 11350, 11377”: https://www.justia.com/criminal/docs/calcrim/2300/2304/).

Controlled substances are categorized into several schedules in California:

Schedule I

The drugs under this category have the highest potential for abuse, and physicians do not prescribe them for medical purposes. Some of the typical Schedule 1 drugs include:

  • LSD
  • Marijuana
  • Peyote
  • Ecstasy
  • Heroin
  • Opiates or opiate derivatives.

See: federal drug schedules: https://www.dea.gov/drug-information/drug-scheduling

Schedule II

Controlled substances under Schedule II are known for causing increased psychological dependence, and they include:

  • Pentobarbital
  • Opium
  • Codeine
  • Hydrocodone
  • Methamphetamine.

Schedule III

Substances that are classified in Schedule III have moderate to low risk of addiction or dependency, including:

  • Ketamine
  • Anabolic steroids
  • Tylenol
  • Buprenorphine

Schedule IV

Drugs that have a low potential for dependence are classified under Schedule IV, and they include:

  • Clonazepam
  • Lorazepam
  • Diazepam
  • Alprazolam.

There are three forms of drug possession under this statute, including:

  1. Actual possession. Actual or definite ownership of drugs means that you are in direct physical control over the alleged substance. You would face charges for possession for sale with actual possession if the law enforcement officers discovered the drugs in your body cavity, pocket, or bag, for example.
  2. Constructive possession. You have constructive possession of a controlled substance if the drug is found in an area that you control. However, the prosecution will need sufficient evidence to establish that you actually controlled where the drug was found. Being close to a controlled substance is not enough for a jury to find you guilty under this statute.
  3. Joint possession. Joint (mutual) control or possession of a drug is a situation where multiple people have a claim to ownership of a particular substance. For example, if police officers discover narcotics or a controlled drug in a space you share with a friend, and there is no clear evidence to suggest sole ownership, the prosecution can charge you with joint ownership of the drug.

Knowledge of the Drugs

Before the prosecution can convince a jury to convict you of possession of narcotics or drugs for sale, the Deputy District Attorney must prove your knowledge of:

  • Drug possession. The court cannot hold you accountable for drug possession if you did not know that you had the drugs in the first place. Therefore, your knowledge of the existence of the drug must be made clear to the jurors.
  • The nature of the alleged substance is a controlled drug. The prosecution will only be able to secure your conviction after proving your knowledge of the drug's illegal nature. Police officers and prosecutors can find evidence of knowledge depending on your past criminal conduct and actions following the discovery of the substance.

You Possessed a Usable Amount of the Controlled Substance

The court cannot find you guilty of violating H.S.C. § 11351 (https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11351.html) for having useless traces or mere residue of a controlled substance in your possession.

The quantity of the drug found on you or in your control must be enough for use by the person to whom you intended to sell the substance. However, it is crucial to understand that the prosecution does not need to prove that the amount was enough to psychoactively affect the user. In other words, the amount does not need to be enough to actually get you high.

See: psychoactive effects of drugs: https://www.medicalnewstoday.com/articles/types-of-psychoactive-drugs

You Intended to Sell the Narcotics or Drugs

Your intention regarding the controlled substance is the most critical element for the prosecution to prove. Regardless of whether you intended to personally sell the drugs or have someone else sell them for you, the jury could find you guilty under H.S.C. § 11351.

If you are found to be in possession of a restricted substance, and the evidence of your intent to sell is not clear, the prosecution will charge you with the personal possession of a controlled substance which is a lesser offense.

See: Possession of a Controlled Substance (California Health and Safety Code section 11350: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11350.html).

See also Possession of Methamphetamine (California Health and Safety Code section 11377: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11377.html);

CALCRIM Number 2304 (“Simple Possession of Controlled Substance -- Health & Saf. Code §§ 11350, 11377”): https://www.justia.com/criminal/docs/calcrim/2300/2304/

Although the following factors are not necessary to secure a conviction for each H.S.C. § 11351 case, the prosecution could use them to establish the element of intent to sell:

  • The quantity of the substance. If the law enforcement officers find you possessing more drugs than an average person would reasonably consume, the prosecution will assume that you intended to sell the substance. However, this argument is flawed because you may be a habitual user and thus have the incentive to stock up on your drugs. Therefore, a large quantity of drugs does not always establish the intent to sell.

See CALCRIM Number 3200 (“Controlled Substance: Quantity -- Pen. Code §§ 1203.07(a)(1), (2) & (4); Health & Saf. Code §§ 11352.5, 11370.4”): https://www.justia.com/criminal/docs/calcrim/3100/3200/

  • Drug packaging. How you package a controlled substance may suggest to the authorities that you possess the substance for sale. If the drugs are found in bundles, small baggies, or in any other receptacle associated with sales, the police officer will testify that you intended to sell the drugs.
  • Presence of drug paraphernalia. Drug paraphernalia is any object or tool used in drug consumption. Since paraphernalia is often associated with drug use, its presence can support your arguments that your drugs were solely for personal use. However, in cases where measuring instruments or other tools are used for mixing and packaging the drugs, the prosecutor's case against you is obviously strengthened.

See Possession of Drug Paraphernalia (California Health and Safety Code section 11364: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11364.html);

See also CALCRIM Number 2410 (“Possession of Controlled Substance Paraphernalia -- Health & Saf. Code § 11364”): https://www.justia.com/criminal/docs/calcrim/2300/2410/

CALCRIM Number 2411 (“Possession of Hypodermic Needle or Syringe -- Bus. & Prof. Code § 4140”): https://www.justia.com/criminal/docs/calcrim/2300/2411/

  • Drug ledgers. Possessing a drug ledger or other form of “pay/owe sheets” is obviously powerful evidence that you were involved in trafficking (or were at least intending to be so involved).

See: analysis of drug ledgers: https://www.dea.gov/sites/default/files/pr/microgram-journals/2017/mj14-1_1-8.pdf

  • Being under the influence. If you were under drug influence at the time of arrest, that evidence would obviously support your arguments regarding personal use. However, it is equally obvious that being under the influence of a controlled substance is a criminal offense.

See Being Under the Influence of a Controlled Substance (California Health and Safety Code section 11550: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=11550&lawCode=HSC.

See also CALCRIM Number 2400 (“Using or Being Under the Influence of Controlled Substance -- Health & Saf. Code § 11550”): https://www.justia.com/criminal/docs/calcrim/2300/2400/


Sentencing for Possession of Drugs for Sale (H.S.C. section 11351: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11351.html)

Possession for the sale of narcotics or a controlled drug is usually charged as a felony. But because the prosecutor has the discretion to charge you with a misdemeanor instead, this offense is known as a “Wobbler” (California Penal Code section 17(b): https://codes.findlaw.com/ca/penal-code/pen-sect-17.html).

 A conviction under this statute entails the following:

  • 2, 3, or 4 years in prison;
  • A one-year jail sentence accompanied by probation (if convicted of a misdemeanor or felony); and
  • Adverse immigration consequences, including deportation or inadmissibility in the United States.

See immigration consequences for drug convictions: https://www.ilrc.org/sites/default/files/resources/chart-note_08-controlled_substances.pdf

Aggravating Factors in an H.S.C. § 11351 Conviction

Aggravating factors are circumstances that make your criminal charges more severe and thus entail an enhanced prison sentence (assuming, of course, the judge requires you to go to prison). If you face a conviction for purchasing or selling cocaine, you could face a maximum of five years in jail.

Additionally, when the controlled substance that attracts your H.S.C. § 11351 charge is heroin, a conviction could result in the following additional penalties:

  • Three years for heroin exceeding one kilogram.
  • Five years if the weight of the heroin is four kilograms or more.
  • Up to ten years in jail for ten kilograms or more.
  • Fifteen years for twenty kilograms of the drug.
  • Twenty years for forty or more kilograms.

See Sentencing Enhancements for Kilogram Quantities of Controlled Substance (California Health and Safety Code section 11370.4: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11370-4.html

For defendants with a prior felony conviction, the court imposes a three-year additional sentence for each prior offense. 

Drug Diversion for H.S.C. § 11351

Under California Penal Code section 1000: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=1000) or Proposition 36, California law allows defendants who face charges for non-violent drug offenses to serve their sentence out of jail. Instead of jail, the judge orders that you serve your sentence in a drug treatment program (often on an outpatient basis).

The most significant benefit of entering a diversion program is that the prosecution drops all your drug charges upon successful completion.

It is essential to understand that drug diversion is not an option for all the defendants facing H.S.C. § 11351 charges. One of the restrictions associated with drug diversion is that it is not available for individuals facing possession for sale charges. Therefore, your attorney needs to fight to have your charges reduced to simple possession of drugs under H.S.C. § 11350 (California Health and Safety Code section 11350: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11350.html).

See Proposition 36 Drug Treatment Diversion Program: https://lao.ca.gov/ballot/2000/36_11_2000.html
See also California “Drug Court”: https://www.courts.ca.gov/5979.htm

Judicial Diversion (Court Initiated Diversion) (California Penal Code section 1001.95: https://codes.findlaw.com/ca/penal-code/pen-sect-1001-51.html).

Legal Defenses Against H.S.C. § 11351 Charges

The consequences of a conviction for drug possession for sale could significantly impact your life even after you finish serving your jail or prison time (if any). The following are some fruitful defenses you can bring against your charges:

Lack of Possession or Control 

The first element that must be proved beyond a reasonable doubt before a jury can convict you for possessing a controlled substance for sale is that you owned the drugs. Possession, in this case, is either actual, constructive, or joint. Often, this defense is applicable in cases where the drug was not found on your person. If your attorney can prove that you did not have control over the alleged substances, you can avoid a conviction under this statute.

Temporary Drug Possession or Control

You can argue temporary possession as your defense for possession or sale of a drug if you had legitimate intentions when possessing the drug. However, you must prove that:

  • You held the drugs for transfer to a law enforcement agency.

See Los Angeles Police Department (LAPD) (https://www.lapdonline.org)

Los Angeles County Sheriff's Department (LASD) (https://lasd.org)

California Highway Patrol (CHP) (https://www.chp.ca.gov).

  • Your intentions behind the possession of the drugs were for disposal or preventing unlawful possession by another person.
  • You did not obstruct law enforcement officers from recovering the substance.

See CALCRIM Number 2305 (“Defense: Momentary Possession of Controlled Substance”): https://www.justia.com/criminal/docs/calcrim/2300/2305/

Lack of Knowledge

The prosecution could not secure your conviction under H.S.C. § 11351 unless the evidence shows that you knew you had a controlled substance in your possession. It is not uncommon for a person to have an illegal substance without their knowledge. For example, if a friend asks you to hold their bag, which contains a large quantity of drugs, the police can arrest you for possessing or selling narcotics with intent to sell.

See CALCRIM Number 2302 (“Possession for Sale of Controlled Substance -- Health & Saf. Code §§ 11351, 11351.5, 11378, 11378.5”): https://www.justia.com/criminal/docs/calcrim/2300/2302/

See also CALCRIM Number 2304 (“Simple Possession of Controlled Substance -- Health & Saf. Code §§ 11350, 11377”): https://www.justia.com/criminal/docs/calcrim/2300/2304/

However, the lack of knowledge defense is only applicable when you do not have a history of drug-related convictions. Additionally, the prosecution may require you to consent to a drug test to prove you don’t have drugs in your system (which also supports your defense).

Valid Prescription

You will likely avoid being convicted of illegal drug possession for sale if you have a valid prescription for the drugs. Obviously, if you face charges for possession for sale of prescription drugs, the prosecution has the burden of proving you did not have a prescription. However, if the amount or quantity you possessed is greater than that required for your medical condition, you can be convicted.

See Fraudulently Prescribing Prescription Drugs (California Health and Safety Code section 11153: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11153.html)

Forging or Altering a Prescription (California Health and Safety Code section 11368 (https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11368.html)

See also CALCRIM Number 2320 (“Forged Prescription for Narcotic -- Health & Saf. Code § 11368”: https://www.justia.com/criminal/docs/calcrim/2300/2320/)

CALCRIM Number 2321 (“Forged Prescription for Narcotic: with Possession of Drug -- Health & Saf. Code § 11368”: https://www.justia.com/criminal/docs/calcrim/2300/2321/).

Lack of Intent to Sell

An intention to sell illegal drugs or narcotics must be proven to secure a conviction for possession for sale. You can avoid a conviction under this statute by demonstrating that the drugs found on your person or in your control were solely for personal use and not for sale.

Entrapment

But for the police’s undercover investigation against you or otherwise as a result of their encouragement, you would not have possessed the drugs, much less with intent to sell, then you may have a strong defense for entrapment. Your lawyer must argue that you were not predisposed to commit the crime, and would point to your lack of a criminal record for drug convictions.

Illegal Search and Seizure

Even when the police officers suspect you of committing a crime in California, you have Constitutional rights protecting you against illegal searchers. There are several ways through which law enforcement officers can violate the search and seizure laws in your case, including:

  • Warrantless searches. A warrantless search is a search of your person or property that is done without a valid search warrant.
  • Searches that exceed the scope of the warrant. When police officers obtain a search warrant from the court, the warrant stipulates the areas where they can search and the items which they can seize. A search that exceeds the scope of the warrant is illegal.
  • Illegal detention. If police officers stop your vehicle illegally, any drugs or evidence of drug possession for sale found in the car is unlawful. 

Any evidence collected in an illegal search and seizure cannot be admissible against you in court. Therefore, your attorney can petition the court to throw out that evidence by successful arguing the following:

Motion to Suppress Evidence (California Penal Code section 1538.5: https://codes.findlaw.com/ca/penal-code/pen-sect-1538-5.html);

Motion to Dismiss (California Penal Code section 995: https://codes.findlaw.com/ca/penal-code/pen-sect-995.html); and

Motion In Limine (California Evidence Code section 350: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=EVID&sectionNum=350; California Evidence Code section 352: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=352.&lawCode=EVID).

Offenses Related to Possession of Drugs for Sale in California

When you face criminal charges for possession or sale of a restricted substance, there are some offenses that the prosecution can bring instead of H.S.C. § 11351 (https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11351.html), including:

Sale or Transportation of a Controlled Substance (Health and Safety Code section 11352: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11352.html)

California Health and Safety Code section 13352 addresses the transportation of the same substances addressed in H.S.C. § 11351. The most significant difference between H.S.C. § 11351 and H.S.C. § 11352 is that H.S.C. § 11352 involves the actual transaction(s) as opposed to merely the intent to sell in H.S.C. § 11351.

A conviction for transportation and sale of a restricted license is a felony punishable by anywhere from three to nine years’ incarceration (again, assuming a prison term is ordered). Drug diversion is not an option in this case.

See also Sale or Transportation of Methamphetamine (California Penal Code section 11379: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11379/

Possession of Marijuana for Sale (California Health and Safety Code section 11359: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11359.html)

Under H.S.C. § 11359, it is a crime to possess marijuana with the intent to sell it. Just as in the prosecution of possession for sale of narcotics cases, the prosecutor must establish your intent to sell without a reasonable doubt.

A conviction for the sale of marijuana is a felony whose conviction attracts a maximum of six months in jail (excluding any sentencing enhancements).

The Los Angeles Defense Attorney Law Firm (LADALF)

Ninaz Saffari has been fighting drug charges – ranging from simple possession to cases involving dozens of kilos of cocaine or meth – since 2005 when she first started working for the L.A. County Public Defender’s Office. Indeed, she handles both state and federal drug cases, and recently successfully handled a major federal drug case based out of Las Vegas.