§ 11351 HS – Possession For Sale of a Controlled Substance

California Health and Safety Code § 11351 HS makes it a felony to possess a controlled substance with the intent to sell. The section applies to illicit street drugs, such as cocaine and heroin, hallucinogens like GHB, peyote, ecstasy, and LSD, as well as to common prescription opiate drugs such as oxycodone (Oxycontin), hydrocodone (Vicodin) and codeine.

Unlike simple possession, a conviction under HS 11351 makes you ineligible for drug diversion (treatment instead of jail time). This chart illustrates the sentencing ranges for violating 11351 HS.

The language of the code section reads as follows:

11351. HS Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years.

Below our California drug crime defense attorneys¹ address what you need to know about “possession for sale” laws. Click on a topic to jump to that section.

• 1. “Possession For Sale” Elements
• 2. For Sale v. Personal Use
• 3. Defenses
• 4. Penalties
• 5. Related Crimes
• Additional Resources

1. “Possession For Sale” Elements

California Health & Safety Code 11351 HS is one of several laws that prohibit possession of drugs with intent to distribute.² This includes both illegal narcotics as well as prescription drugs.³

Before California prosecutors can convict you of possessing a controlled substance for sale, they must prove beyond a reasonable doubt the following elements of the jury instructions:

1. You possessed or purchased the drug,
2. You knew you did so,
3. You knew of the drug’s nature as a controlled substance,
4. You possessed enough of the drug to use or sell, and
5. You either
   • possessed the drug with the intent to sell it, or
   • purchased the drugs with the intent to resell them.⁴

Let’s take a closer look at some of these terms and conditions to gain a better understanding of their legal meanings.

Possession and Knowledge

In California law, the meaning of the word “possession” is equivalent to control. This type of control may be either:

• Actual possession: This means holding or carrying the drugs on your person such as in a backpack or briefcase;
• Constructive possession: This is when you have control and access to the drugs, such as by keeping them in your drawer or car; or
• Joint possession: This is when you share control with at least one other person, such as a spouse or roommate.⁵

Judges and juries can infer you knew you had drugs by the simple fact that you possessed the drugs.⁶ Knowledge may also be assumed based on your conduct following the discovery of the narcotics.⁷

Example: Pete is driving his car when the police pull him over. As the officer approaches the driver’s side, Pete takes the four balloons containing cocaine and throws them out the passenger side window as inconspicuously as possible. Pete’s actions reveal that he knew he possessed the drugs and knew of their illegal nature.⁸

There Was Enough of the Drug to Use or Sell

Useless traces or residue of a drug will not support a conviction for possession of a controlled substance for sale.⁹ The quantity of the drug has to be enough that it can actually be consumed as a drug by the people to whom it will be sold.¹⁰

However, there does not have to be enough of the controlled substance to affect the user.¹¹

The Intent to Sell

Whether you intend to sell the drugs is often the most critical part of the prosecution’s case in a “possession for sale” charge.

This does not mean you must intend to sell the drugs personally. You can be convicted of this offense as long as you specifically intend for someone to sell the drugs.¹²

If the prosecutor proves that you possessed a controlled substance but cannot prove that you did so with the intent to sell the drugs, the judge/jury could convict you of the “lesser included offense” of personal possession under Health and Safety Code 11350 HS.¹³

2. For Sale v. Personal Use

Whether you intended to sell your drugs or use them yourself is not always clear. Absent a voluntary confession to the crime, prosecutors deduce your intent through narcotics expert witnesses and the following circumstantial evidence.

The Quantity of the Controlled Substance

If you possess more drugs than what an “average” person would personally consume, the police/prosecution will assume that you possess the narcotics for sale.

The flaw in this argument is that many habitual drug users “stock up” if they have the means to do so.

The Packaging of the Drug

If the drugs are packaged in numerous separate

• baggies,
• balloons,
• bundles,
• bindles, or
• in any other way commonly associated with drug sales,

the police will say that this sort of packaging suggests the controlled substance was possessed for sale rather than personal use. Similarly, if the police find you with lots of baggies or other packaging material, they will suspect an intent to sell.

“Indicia of Sale” such as Drug Paraphernalia

Possession of drug paraphernalia – its own crime under Health and Safety Code 11364 HS – could help or hurt your case.

Because paraphernalia like pipes or syringes indicates use, its presence could support your claim that the drugs were for personal use.

However, if the police find you in possession of such items as:

• weighing scales,
• measuring instruments,
• other tools that may be used to dilute, separate, or package drugs, or
• lots of cash, especially in small denominations,

that discovery will enhance the prosecutor’s claim that you possessed the controlled substances for sale.

Another sign of “intent for sale” is several people (suspected buyers) coming to your place for short amounts of time.

You Are Under the Influence

If you are under the influence of drugs at the time of your arrest, that fact tends to point to personal use of the drugs rather than an intent to sell. However, many “dealers” are also “users,” so this evidence certainly is not conclusive.

If you are under the influence in “any detectable manner,”¹⁵ that could also lead to additional misdemeanor charges under Health and Safety Code 11550 HS – California’s “under the influence of a controlled substance” law.¹⁶

Possession for sale charges apply to all types of controlled substances including opiates and opiate derivatives and hallucinogenic substances.

3. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with drug possession for sale. In our experience, the following five legal defenses have proven very effective with prosecutors, judges, and juries.

The Police Conducted an Illegal Search and/or Seizure

There are several ways that police can violate California’s search and seizure laws. For example, an illegal search and seizure claim may arise out of

• a warrantless search (that is, a search that is conducted in the absence of a California search warrant),
• a search that exceeds the scope of the warrant (for example, the warrant only authorizes a search of your bedroom, but the officers search the rest of your house and discover the illegal drugs in your kitchen drawer),  or
• an illegal detention (if the police were not legally entitled to stop you in the first place, any drugs that they subsequently find probably cannot be used as evidence against you).

If we suspect that you may be the victim of an illegal search and seizure, we will likely file a Penal Code 1538.5 PC motion to suppress evidence. If we prevail on this motion, your charge(s) will probably be dismissed or, at the very least, significantly reduced.¹⁷

You Had No Intent to Sell

Even if you possessed the drug, you may not have intended to sell them. If you can prove that you only possessed the drugs for personal use and not to sell them, you should be acquitted of this offense.

While it may seem counterintuitive to concede that you did, in fact, possess a controlled substance, personal possession is considered a much less serious offense and may permit you to participate in drug diversion.

If you can challenge the fact that you even possessed the drugs, then clearly this is not the defense you would present. However, if the evidence that you possessed illegal drugs is overwhelming, this is probably your best bet.

This defense could also work if you can convince the judge/jury that even though the drugs briefly ended up in your possession, you only momentarily possessed them as you were in the process of trying to dispose of them.¹⁸

You Did Not Possess the Drugs

If we can convince the prosecutor, judge, and/or jury that you did not even possess the drug, you are entitled to an acquittal of this charge. This defense would most likely apply to a case alleging constructive possession.

Example:  Defendant was arrested for possessing a controlled substance for sale. The arrest was based on an incident where the defendant (1) agreed to buy a large quantity of drugs from an undercover cop so that he could resell them, (2) met the officer, (3) paid the officer for the drugs, (4) was prepared to take them from the officer, but (5) was arrested before he actually took possession/control of the drugs.

The Court of Appeal held “He [the defendant] did not direct the contraband be moved within a room. Nor did he take any other action which exhibits control over the drugs. A defendant agreeing to meet the police, paying for and standing ready to receive the goods, without more, does not constitute the requisite control necessary to establish constructive possession.”¹⁹

You Did Not Know the Drugs Were There

Similarly, if the prosecutor cannot prove that you knew about the drug’s presence or narcotic character, you cannot be convicted of drug possession for sale.

Believing that cocaine is actually PCP is not a valid defense. However, believing that cocaine found in a baggie was simply sugar might be.

This defense works best when you have no legal record of past drug experience. This may effectively convince a judge/jury that you truly did not know that the drugs were a controlled substance. This is as opposed to a known “user” or “dealer” trying to make this same claim.

You Were Falsely Accused

It is not uncommon for people to levy false drug allegations out of anger, to gain the upper hand in a custody case, or to shift the blame from themselves.

To show that an accuser is lying, we subpoena their recorded communications (such as text messages and voicemails) and pore over it for any indication of their motivation to lie. We also search for witnesses who may be privy to the accuser’s state of mind.

If we can get the prosecutors to see that the accuser lacks credibility, they may dismiss your charges.

4. Penalties

Possessing a controlled substance with intent to sell it is a felony under California Health and Safety Code 11351 HS. A conviction is punishable by either:

• probation and up to a year in county jail, or
• 2, 3 or 4 years in county jail, and/or
• a maximum $20,000 fine.²⁰

If the prosecution can prove that you intended to engage in multiple sales, these penalties could be imposed in connection with each intended sale.²¹

A conviction under this section could additionally lead to deportation if you are a legal immigrant or legal alien.²²

Aggravating Factors

Possession for sale carries harsher penalties in certain situations.

Drug Diversion

Possession for sale defendants are ineligible for drug diversion, which is the court program where your case gets dismissed if you complete rehab. However, if we can get your charge reduced to simple possession, then the court could allow you into a diversion program under:

• Proposition 36,
• Penal Code 1000 PC, or
• California drug court.²⁷

Police typically arrest people for violating HS 11351 if the drugs are found alongside firearms and large amounts of cash.

5. Related Crimes

• HS 11352 – sale or transportation of a controlled substance
• HS 11355 – selling fake drugs
• HS 11357.5 – synthetic cannabis (marijuana)
• HS 11359 – possession for sale of marijuana
• HS 11360 – sale or transportation of marijuana
• HS 11366 – operating a drug house
• HS 11370.1 – possession of drugs while armed
• HS 11370.6 – possession of drug money
• HS 11375.5 – synthetic stimulants
• HS 11377 – simple possession of methamphetamines
• HS 11378 – possession for sale of methamphetamines
• HS 11379 – sale or transportation of methamphetamines
• HS 11379.6 – manufacturing a controlled substance
• HS 109575 – manufacture of imitation controlled substances

Additional Resources

If you are suffering from addiction, you can find help here:

• Directories for Substance Use Disorder Services – List maintained by the California Department of Health Care Services.
• Drug & Alcohol Rehabs in California: Finding a California Rehab – Directory provided by American Addiction Centers.
• Narcotics Anonymous California – 12-step program to overcome addiction to drugs.
• SMART Recovery – An abstinence-based, self-empowering addiction recovery support group that teaches tools and techniques for self-directed change.
• SAMHSA National Helpline – Free, confidential, 24/7 treatment referral service for people suffering from drug addiction.