California "Drug Possession for Sale" Drug Crimes Defense Attorneys |
California Health and Safety Code 11351 HS

Our California drug crimes defense lawyers have local law offices in Ventura, Los Angeles, San Bernardino, and all surrounding Southern California counties.

Possessing or Purchasing a Controlled Substance for Sale -- California Health & Safety Code 11351 HS

California Health & Safety Code 11351 HS regulates illegal drug sales. Possessing or purchasing certain "controlled substances" or other "narcotic" drugs in order to sell them subjects you to prosecution under this section.

Unfortunately, many innocent people get arrested and charges with possession for sale of drugs in California. Often times, the person had the drugs only for personal use. But the police and prosecutors accuse him of holding the narcotics with the intent to sell them.

A variety of illicit and prescribed drugs are classified as "controlled substances" and "narcotic drugs". Some of the most commonly sold include PCP, cocaine, heroin, GHB (also known as the "date rape" drug), codeine, morphine, and hydrocodone (otherwise known as Vicodin). There are also a wide variety of opiates and other depressants that fall under these categories.

In this article, our Newport Beach drug crime lawyers will provide a comprehensive guide to understanding this offense by addressing the following topics:

How Does the Prosecutor Prove that I Had Possession of a Controlled Substance for Sale?

Definition of Terms Involved in a California Health & Safety Code 11351 HS Prosecution

How will the Prosecutor Prove that I had the "Intent to Sell"?

How Do I Defend Against a Charge for Possession of Narctoics for Sale?

What are the Penalties and Punishments for Possession of Drugs for Sale?

Possessing Controlled Substances for Sale and its Lesser Included Offense of Simple Drug Possession

If after reading this article, you would like more information, please feel free to contact us anytime.

How Does the Prosecutor Prove that I Possessed a Controlled Substance for Sale?

In order to convict you of possessing or purchasing a controlled substance with the intent to sell it, the prosecutor must prove the following¹:

1. That you either had control over or had the right to control a prohibited drug, or



2. That you purchased a prohibited drug,



3. That you knew of the drug's presence,



4. That you knew of the drug's nature as a controlled substance,



5. That the amount of the drug was enough to use or sell, and



6. That you possessed or purchased the drug with the intent to sell it.

In order to fully understand these "elements", some terms require further explanation.

Definition of Terms Involved in a California Health & Safety Code 11351 HS Prosecution

• Control (otherwise referred to as possession)

Control or possession can either be actual or constructive, and can be individually or jointly held.

• Actual control
  
  Actual or physical possession is easiest to define and identify. An example would be if you had the prohibited drug on your person, perhaps in a pocket.



• Constructive control
  
  Constructive control is a bit more difficult to identify. You have constructive possession of a drug if you have (1) access to it, or (2) the right to control it, despite the fact that you don't physically possess it. Constructive control is typically proven by circumstantial evidence.
  
  For example: Bob was pulled over for speeding. As the officer was speaking with Bob, he noticed a baggie filled with a powdery substance on the floorboard near Bob's feet. Bob was the owner of the car and its only occupant. This would likely be enough evidence to charge Bob with constructive possession of the drug.



• Joint possession

Joint control refers to a situation where two or more people have possession of the drug. An example would include a situation where drugs were found in a common area of a shared apartment.

• "Knowledge" of the drug's nature as a controlled substance

You don't need to know exactly what the drug is (or its chemical makeup) to be convicted of this charge. Knowing that it is an illegal drug will suffice.²

• "The amount was enough to use or sell"

Useless traces or residue of a drug will not support a conviction for possession or purchase for sale.³ The quantity of the drug has to be enough that it can actually be used as a drug by the person/people to whom it will be sold.

How will the Prosecutor Prove that I had the "Specific Intent to Sell"?

"The specific intent to sell" warrants its own discussion. This is because whether you intended to sell the drug is the most critical part of the prosecution's case. If there's no intent to sell, the most you can be guilty of is mere personal possession. Simple possession cases typically involve less penalties than possession for sales cases and generally qualify for alternative sentencing instead of incarceration.

In a Health & Safety Code 11351 case, you don't need to have the specific intent personally to sell the drugs that you possess. As long as you specifically intend for someone to sell the drugs, you can be convicted of this offense.⁴

Proving that you had the specific intent to sell drugs will typically be established through the testimony of a narcotics officer. In order to prove that the drugs were going to be sold (instead of personally used), the officer will likely testify as to:

• The quantity of the controlled substance (which is the biggest indicator of an intent to sell),
• The packaging of the drug, and
• The absence of paraphernalia associated with the drug's use.⁵

Let's take a look at each of these indicators individually.

• Quantity

The prosecutor places an enormous amount of importance on the quantity of the confiscated drug. Law enforcement will automatically conclude that you possessed a drug for sale (rather than for personal use) if the amount discovered was more than what the officer believes a casual user would normally possess for personal consumption.

The flaw in this argument is that a habitual drug user will typically "stock up" if he/she has the means to do so. For example, a cocaine user may buy a month's supply from his dealer, rather than going back to the dealer every day to score more. But if he gets busted with that month's supply, the police will likely accuse him of possession of cocaine for sale.

• Packaging

How the drug is packaged can be the most damning type of evidence in a possession for sales case. If the substance is packaged in multiple baggies, balloons, bundles, bindles, or in any other container commonly associated with drug sales, the cops are more likely to conclude that you intended to sell rather than use the drugs.

Scales, measuring instruments, supplies of baggies, or other tools that may be used to dilute, separate, or package drugs will also enhance the prosecutor's case if found in your possession.

• The absence of paraphernalia

Paraphernalia includes pipes, syringes, or any other instrument used to ingest, inject, or otherwise consume a drug. The cops will say that if you had drugs but no paraphernalia, then you must not have intended to use the drugs yourself...and therefore you possessed the narcotics for sale.

The absence of paraphernalia as an argument has strengths and weaknesses. Paraphernalia typically indicates use, which would support the defense that the drugs were for personal use. However, there is no guarantee that paraphernalia would be located on one's person or in the same place as the drugs were found. Simply put, the presence or lack of paraphernalia isn't conclusive of anything.

Of course there will be other factors that will be indicative of, or inconsistent with, an intent to sell, depending on the specific facts of your case. The above list is just a sample of some of the most common arguments upon which prosecutors rely when attempting to prove that you had the intent to sell your controlled substances.

How Do I Defend Against a Charge for Possessing or Purchasing a Controlled Substance for Sale?

There are several defenses to Health & Safety Code 11351 charge that a skilled California drug crimes lawyer can argue on your behalf. The following is a brief summary of some of the most popular. This list is only an example and may or may not apply to the facts of your specific case.

• Illegal search and/or seizure

This defense applies to a number of different situations. An illegal search / seizure claim may arise out of

• A warrantless search,



• A search that exceeds the scope of the warrant,



• An illegal detention,



• A situation where excessive force was used to seize the drug, or



• A variety of other scenarios, depending on the facts of your case.

If this defense is successful, your charge will be dismissed or, at the very least, significantly reduced.

• Lack of possession

If your California drug crimes lawyer can convince the prosecutor, judge, and/or jury that you didn't in fact possess the drug, you are entitled to an acquittal of this charge. This defense would most likely apply to a case alleging constructive or joint possession.

Example: You were one of several passengers in a car where a large quantity of drugs was found. In order to convict you, the prosecution would have to prove that you personally exercised control over the drugs. Simply knowing that they were there would be sufficient.

• Lack of knowledge

Similarly, if the prosecutor can't prove that you knew about the drug's presence or narcotic character, you can't be convicted of this charge. Believing that cocaine is actually PCP will not permit this defense.however, believing that cocaine found in a baggie was simply sugar might be.

Because this defense could be asserted by anyone who claims to have no experience with drugs, one's drug history and past convictions may be used to negate this defense.

• No intent to sell

Even if you possessed the drug, your intent to sell is still controlling. If, for example, you did have possession of the drugs but intended to consume them yourself (or dispose of them), you could not be convicted of HS 11351.⁶

What are the Penalties and Punishments for Possessing or Purchasing Drugs for Sale?

California Health and Safety Code 11351 HS is a felony. A conviction carries a two, three, or four year California State Prison sentence.

Typically, you can't be prosecuted for multiple offenses that arise out of the same act. ⁷ Possessing or purchasing drugs for sale may be an exception to that rule, if it can be established that you had the intent to engage in multiple sales, or you possessed for sale several different kinds of narcotics.⁸

Unlike a California simple possession charge under California Health and Safety Code 11350 HS, drug rehabilitation is not available as an alternative to prison if you are convicted of selling drugs. However, your California drug crimes defense lawyer may be able to negotiate a plea so that your offense is reduced to a charge that is eligible for rehab instead of custody time.

Possessing or Purchasing a Controlled Substance for Sale and its Lesser Included Offense of Simple Drug Possession

If a charged offense can't be committed without necessarily committing another offense, the latter offense is what's called a "lesser included" offense. Since you can't be convicted of possessing a controlled substance for sale without possessing the drug, simple possession is a lesser included offense of California Health and Safety Code 11351 HS.⁹

This means that if you go to trial for possessing or purchasing drugs for sale, the judge will automatically instruct the jury that you may alternatively be convicted of simple possession. Again, a conviction for this charge makes you eligible for diversion instead of incarceration.

If you have additional questions or would like a confidential consultation, we invite you to contact us at one of our Southern California local criminal law offices. We are located in Rancho Cucamonga, Riverside, Van Nuys, and all surrounding areas.

Legal Case References:

¹California Jury Instructions -- Criminal: CALJIC No. 12.01

²People v. Guy (1980) 107 Cal.App.3d 593 (Knowledge for the purpose of conviction is knowledge of the controlled nature of the substance and not its precise chemical composition).

³People v. Leal (1966), 64 Cal.2d 504 (Possession of the drug must be in an amount sufficient to be used as a drug).

⁴People v. Parra (4th Dist. 1999), 70 Cal.App.4th 222 (There is no requirement that the defendant possessed drugs so that he or she would personally sell them. The only requirement is that the defendant possessed the drugs with the specific intent that they be sold).

⁵People v. Newman (1971), 5 Cal.3d 48 (Experienced officers may give their opinion that the drugs are being held for sale based on the drug's quantity, packaging, and normal use).

⁶Judicial Council of California Criminal Jury Instruction 2305 (Momentary possession of an illegal drug may be a defense if the intent was to abandon, dispose of, or destroy the drug).

⁷California Penal Code 654 (Precludes multiple punishments for a single act or offense).

⁸People v. Monarrez (App. 4 Dist. 1998) 66 Cal.App.4th 710 (Separate sentences were properly imposed where it was found that defendant had engaged in and was intending to engage in multiple sales).

⁹People v. Saldana (2d Dist. 1984), 157 Cal.App.3d 443 (Simple possession is a lesser included offense of possession for sale).

Join us to discuss your criminal case at any of our
local offices: You can also contact us 24/7 at
888.327.4652 for a free consultation