Health & Safety Code § 11351 HS – Possession For Sale of Narcotics

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, heroin and LSD,  as well as to common prescription drugs such as oxycodone (Oxycontin), hydrocodone (Vicodin) and codeine.

The language of 11351 HS states that “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.”

How does a prosecutor prove intent to sell?

Prosecutors tend to charge possession for sale when you have drugs and there are “indicia of sale” present. This typically includes:

• Large quantities of the narcotic or controlled substance
• Packaging of the drug in separate baggies or bindles
• Scales
• Lots of cash, especially in small denominations
• Lots of people coming to your place and staying only a few minutes

California’s penalty for possession for sale

If convicted of violating California Health and Safety Code 11351 HS, you face

• two, three or four years in county jail and/or
• a maximum $20,000 fine.

Alternatively, a good lawyer may be able to get you probation and up to a year in county jail. Unlike simple possession, however, a conviction under HS 11351 makes you ineligible for drug diversion (treatment instead of jail time).

Defenses against HS 11351

The best defense under Health and Safety Code 11351 HS depends on the facts of your case. Common defenses, however, often include:

• You did not possess a controlled substance
• The drugs were not yours
• The drugs were for personal use
• You did not know the narcotics were there
• The drugs were found during an illegal search and/or seizure
• The police falsified evidence

Below, our California drug crime defense attorneys¹ will address the following key issues:

• 1. What does it mean to possess a controlled substance for sale?
  • 1.1. Possession
    • 1.1.a. Actual possession
    • 1.1.b. Constructive possession
    • 1.1.c. Joint possession
  • 1.2. Knowledge
    • 1.2.a. Knowledge that you possessed the drug
    • 1.2.b. Knowledge that it is a controlled substance
  • 1.3. There was enough of the drug to use/sell
  • 1.4. The intent to sell
• 2. How does this differ from possession for personal use?
  • 2.1. The factors that indicate possession with intent to sell
• 3. What are the best defenses to 11351 HS?
  • 3.1. Illegal search and/or seizure
  • 3.2. No intent to sell
  • 3.3. Lack of possession
  • 3.4. Lack of knowledge
• 4. What are the penalties?
  • 4.1. Aggravating factors
  • 4.2. Drug diversion
• 5. Are there related crimes?
  • 5.1. Health and Safety Code 11352 HS — sales and transportation of controlled substances
  • 5.2. Health and Safety Code sections 11377, 11378 and 11379 HS — possession, sales and transportation of methamphetamines
  • 5.3. Health and Safety Code 11359 HS — possession of marijuana for sale
  • 5.4. Health and Safety Code 109575 and 11355 HS — sale of an imitation controlled substance
  • 5.5. Health and Safety Code 11357.5 & 11375.5 HS — sale / Possession for sale of synthetic cannabis or stimulants
  • 5.6. Health and Safety Code 11366 HS — opening or maintaining a drug house

1. What does it mean to possess a controlled substance for sale?

California Health & Safety Code 11351 HS is one of several laws that prohibit possession of drugs with intent to distribute.  Possessing or purchasing certain controlled substances or other narcotic drugs with the intent to sell them subjects you to prosecution under this statute.

A “controlled substance” is a drug or chemical whose manufacture, possession and use are regulated by the government under the United States “Controlled Substances Act”.

Examples of common controlled substances that are regulated under this law include (but are not limited to):

• opiates and opiate derivatives,
• cocaine,
• heroin,
• peyote,
• gamma-hydroxybutyric acid (“GHB”), and
• certain hallucinogenic substances.²

This law also prohibits you from possessing or purchasing certain prescribed drugs for sale.  These include (but are not limited to):

• codeine, and
• hydrocodone (“Vicodin”)³.

Before a prosecutor can convict you of possessing a controlled substance for sale, they must prove that you

1. possessed or purchased the drug,
2. knew you did so,
3. knew of the drug’s nature as a controlled substance,
4. possessed enough of the drug to use or sell, and
5. that you either

a) possessed the drug with the intent to sell it, or
b) purchased the drugs with the intent to resell them.⁴

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

1.1. Possession

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

• actual,
• constructive, or
• joint.

1.1.a. Actual possession

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, or carried in a backpack or briefcase.

1.1.b. Constructive possession

Constructive possession is a bit more difficult to identify. You have constructive possession over a controlled substance if you have

1. access to it, or
2. the right to control it (despite the fact that you do not physically possess it).

Constructive control is typically proven by circumstantial evidence. That is, evidence that does not directly point to guilt.

Example: Bob keeps a stash of crack cocaine in the nightstand next to his bed. He is rarely in actual physical possession of the drug. But he’s nevertheless in constructive possession of it.

1.1.c. Joint possession

Joint control refers to a situation where two or more people have possession of the drug.

Example:  You and your brother were held to have joint possession of heroin that was found in the headboard of a bed in your bedroom. The court reasoned that you both had joint, constructive possession of drugs since you both were found in the bedroom over which you both exercised joint dominion and control when hiding/accessing/selling the drugs.⁵

1.2. Knowledge

Before the prosecutor can convict you of possession for sales, they must prove that you knew

1. you possessed the drug, and
2. that the drug was, in fact, a controlled substance.⁶

Let’s explore these two types of knowledge.

1.2.a. Knowledge that you possessed the drug

It would be unfair to hold you accountable for possessing drugs for sale if you did not know the drugs were in your possession.

This means that if, for example, you borrowed a friend’s car – and police discovered drugs in the trunk – you should not be held criminally liable if you did not know the narcotics were in the car.

Similarly, if, for example, a friend hid his drugs in your apartment without asking/telling you – perhaps because he knew the police were going to get a warrant to search his house – you are not guilty of drug possession unless you

• knew about it and
• consented to it.

1.2.b. Knowledge that it is a controlled substance

In order to sustain a conviction for possession for sales, it’s not necessary that you know

• the exact name of the drug,
• the chemical makeup of the drug, or
• what kinds of expected effects the drug produces.

All that is necessary is that you know that the drugs are illegal controlled substances.⁷

Now what’s interesting is that the judge/jury may infer that both of these “knowledge” requirements have been satisfied by the simple fact that you possessed the drugs.  Knowledge may also be assumed based on your conduct following the discovery of the narcotics.⁸

Example: Pete is driving his car when the police pull him over. As the cop approaches on 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.

1.3. There was enough of the drug to use/sell

As Newport Beach criminal defense attorney John Murray⁹ explains,

“Useless traces or residue of a drug will not support a conviction for possession of a controlled substance for sale.¹⁰ The quantity of the drug has to be enough that it can actually be consumed as a drug by the person/people to whom it will be sold. However, there does not have to be enough of the controlled substance to affect the user.”¹¹

1.4. 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 sales” charge. This does not mean that you must have the intent to sell the drugs personally. As long as you specifically intend for someone to sell the drugs, you can be convicted of this offense.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 California’s “personal possession of a controlled substance” law.¹³

This distinction is critical because a personal possession conviction

• not only subjects you to lesser penalties,
• but also provides the possibility for you to participate in a drug diversion program in lieu of serving time in jail or prison.

These differences are discussed below in Section 4. Penalties, Punishment and Sentencing.

Because this issue is so vital to the charge, we’ve decided to address the factors that are typically involved in distinguishing between a personal possession case and a possession for sales case in their own section.

2. How does this differ from possession for personal use?

Neither of these crimes necessarily involves the

• actual sale or
• transfer of controlled substances.

That crime – Health and Safety Code 11352 – is discussed under Section 4. Related Offenses. As a result, these possession offenses revolve around your intent.

“Intent” can be difficult to prove. Absent a clear, voluntary confession to the crime, your intent is usually something that will have to be proven by circumstantial evidence – that is, the surrounding circumstances.

There are several factors that law enforcement and prosecutors typically rely on when trying to establish an intent to sell. Usually, the prosecution will call upon a narcotics officer as an “expert” witness to offer an opinion that the drugs were going to be sold by you (as opposed to consumed by you) based on these factors.¹⁴

2.1. The factors that indicate possession with intent to sell

Although the following factors are not necessarily relevant to every possession case, they are commonly used to distinguish between the two types of charges.

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 a habitual drug user will typically “stock up” if they have the means to do so.  So unless you are running a commercial operation out of a warehouse, having a large amount of a drug is not in-and-of-itself evidence of possession for sales.

The packaging of the drug

How the controlled substance is packaged is often times the most damaging type of evidence in possession for sales cases. If the drugs are packaged in numerous separate

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

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

The presence/absence of drug paraphernalia

Possession of drug paraphernalia – a crime in and of itself under Health and Safety Code 11364 HS California’s “possession of drug paraphernalia” law – could either help or hurt your case.

Drug paraphernalia includes

• pipes,
• syringes, or
• any other instrument used to ingest, inject, or otherwise consume a drug.

Because paraphernalia typically indicates use, its presence could support your claim that the drugs were for personal use.

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

• weighing scales,
• measuring instruments, or
• other tools that may be used to dilute, separate, or package drugs,

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

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 charges under Health and Safety Code 11550 HS California’s “under the influence of a controlled substance” law.

A conviction for this misdemeanor drug offense subjects you to possible jail time. However, you may be eligible to participate in drug diversion instead, but only if your attorney can have your possession for sale charge reduced to personal possession.¹⁶

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 and defense attorneys rely when attempting to prove (or negate) the fact that you had the intent to sell controlled substances.

3. What are the best defenses to 11351 HS?

There are several legal defenses to possessing or purchasing a drug for sale 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 serves only as an example and may or may not apply to the facts of your specific case.

3.1. Illegal search and/or seizure

There are a number of 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 your California drug crimes lawyer suspects that you may be the victim of an illegal search and seizure, they will likely file a Penal Code 1538.5 PC motion to suppress evidence. If you prevail on this motion, your charge(s) will probably be dismissed or, at the very least, significantly reduced.

Example: Police arrested the defendant as a fugitive pursuant to an arrest warrant. They arrested her in her bedroom. The police then went into her bathroom where they found eleven condoms containing heroin. At trial, she was convicted of possession of heroin for sale.

The California Court of Appeal reversed her conviction based on the fact that the heroin was discovered pursuant to an illegal search and seizure. The police were arresting the defendant based on an arrest warrant, not an all-inclusive California search warrant. Once they found and arrested her, a search of her bathroom could not have provided evidence related to that arrest. Once the object of their search was found (that is, the defendant) the police had no legitimate grounds for searching the rest of the apartment

¹⁷

3.2. 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

3.3. Lack of possession

If your California drug crimes defense attorney 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

3.4. Lack of knowledge

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 sales.

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.

4. What are the penalties?

Health and Safety Code 11351 HS California’s law against possessing a controlled substance with intent to sell it is a felony. A conviction is punishable by either:

• probation and up to a year in county jail, or
• two, three or four 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 For more information about how California drug offenses affect aliens, please review our article on California Crimes that Lead to Deportation.

4.1. Aggravating factors

If you are convicted of possessing or purchasing cocaine base for sale, you face:

• three, four or five years in county jail, and
• a maximum $20,000 fine.²³

In addition, if you are convicted of violating Health and Safety Code 11351 HS, and the controlled substance is heroin, cocaine base or cocaine, you face an additional

• three years if the substance exceeds one kilogram by weight,
• five years if it exceeds four kilograms,
• ten years if the substance exceeds ten kilograms,
• fifteen years if the drug weighs more than 20 kilograms,
• twenty years if it weighs more than 40 kilograms, and
• twenty-five years if the substance exceeds 80 kilograms.²⁴

If you receive an additional sentence under one of these weight enhancements, you also face fines of up to $8,000,000.²⁵

Plus if:

• you are convicted of possessing or purchasing controlled substances for sale, and
• you have at least one prior felony conviction for another California drug crime that involves more than mere personal use,

you face an additional and consecutive three-year term for each prior felony conviction.²⁶

4.2. Drug diversion

“Drug diversion” is permissible under

• Proposition 36,²⁷
• Penal Code 1000 PC,²⁸ and
• California drug court.

It allows people who have committed certain non-violent drug possession offenses to serve their sentences in drug treatment programs in lieu of jail or prison.  The most significant benefit of drug diversion is that if you successfully complete the program, your drug charges will likely be dismissed.

However, drug diversion is not offered to everyone and, in fact, has a number of limitations.²⁹ One of these restrictions is that it does not apply to drug “sales” offenses. This is why it is so critical for your attorney to try to negotiate a charge reduction to personal possession instead of possession for sales.

Because you cannot possess a controlled substance for sale without necessarily possessing the drug, simple possession is what is known as a “lesser included offense” of California Health and Safety Code 11351 HS.³⁰ As a result, even if the prosecutor charges you with possession for sale, a judge/jury could alternatively choose to convict you of Health and Safety Code 11350 HS California’s personal possession law instead.

If they choose to do so, you may be entitled to participate in a drug diversion program.

5. Are there related crimes?

There are a number of offenses that are closely related to Health and Safety Code 11351 HS. Some of these involve similar conduct, some are typically charged in connection with 11351 HS, and some may be charged in lieu of 11351.

Examples of some of the most common related offenses include (but are not limited to):

5.1. Health and Safety Code 11352 HS – sales and transportation of controlled substances

Health and Safety Code 11352 HS California’s “sales or transportation of a controlled substance” law involves sales of the same controlled substances that are prohibited under HS 11351.

The difference between Health and Safety Code 11352 HS and 11351 HS is that 11352 involves actual drug transactions (as opposed to possessing the narcotics with the intent to sell them).

If convicted of this felony, you face:

• three, four or five years in county jail (three, six or nine years if you transport the drugs across more than two county lines).³¹

And because this offense involves sales (rather than simple, personal possession), drug diversion is not an option. That is, unless your attorney can negotiate a plea bargain for a personal possession charge instead.

5.2. Health and Safety Code sections 11377, 11378 and 11379 HS – possession, sales and transportation of methamphetamines

HS 11377 (simple possession of methamphetamines), HS 11378 (possession for sale of methamphetamines) and HS 11379 (sale or transport of methamphetamines) are very similar to Health and Safety Codes 11350, 11351 and 11352 (all discussed above), with one major difference.

The difference is that these laws regulate slightly less “serious” drugs. While methamphetamines – also referred to as “meth” – are probably the most common drugs that are prosecuted under these laws, they regulate a variety of other drugs as well. Some of these include (but are not limited to):

• “GHB”,
• Phencyclidine “PCP”,
• MDMA (more commonly referred to as ecstasy, “E”, “X”, or “XTC”),
• specific anabolic steroids, and
• ketamine (“special K” or “K”).

Health and Safety Code 11377 HS is what is known as a wobbler, which means that the prosecutor can charge the offense as either a misdemeanor or a felony.³² However, 11378 and 11379 are both felonies, subjecting you to between 16 months and nine years in jail.³³

Where possessing certain drugs – such as “GHB” — is prohibited under more than one law, the prosecutor has the discretion to choose which charges to file.

5.3. Health and Safety Code 11359 HS – possession of marijuana for sale

Under California Health and Safety Code 11359, possession of marijuana for sale, it is a felony to possess marijuana if you intend to sell it.

Possession of marijuana for sale can be punished by:

• 16 months, or two or three years in county jail, and/or
• up to a $10,000 fine.

5.4. Health and Safety Code 109575 and 11355 HS – sale of an imitation controlled substance

California Health and Safety Code 109575 and 11355, sale of imitation controlled substances, deal with fake or “bunk” drugs.

An imitation controlled substance (or “bunk” drug) is one that is intentionally indistinguishable by outward appearances from a genuine controlled substance.

California Health and Safety Code 109575 HS makes it a crime to: ·

• manufacture,
• sell, or
• possess for sale

an imitation controlled substance.

Violation of Health and Safety Code 109575 is a misdemeanor. It can be punished by: ·

• up to six months in county jail, and/or
• a fine of up to $1,000.

California Health and Safety Code 11355 HS makes it illegal to:

• offer to sell, give away or transport a controlled substance, but
• deliver, or arrange to deliver, an imitation drug instead.

Perhaps surprisingly, this is a more serious crime. Not only is a fake drug potentially harmful in and of itself, but it can cause an addict who later uses the real drug to increase the dosage.

California Health and Safety Code 11355 HS is, therefore, a California “wobbler” offense. If charged as a misdemeanor, the maximum sentence is:

• one year in county jail.

If charged as a felony, violation of Health and Safety Code 11355 carries a sentence of:

• 16 months, or two or three years in county jail.

5.5. Health and Safety Code 11357.5 & 11375.5 – sale / possession for sale of synthetic cannabis or stimulants

California law makes it illegal to sell, or possess for sale, synthetic (“designer”) drugs. These acts are misdemeanors under:

• California Health and Safety Code 11357.5, synthetic cannabis (marijuana), and
• California Health and Safety Code 11375.5 (synthetic stimulants).

They can be punished by:   ·

• up to six (6) months in county jail, and/or
• a fine of up to $1,000.

Synthetic drugs are usually sold in small, foil or plastic pouches. Often, they are labeled “not for human consumption.”

Synthetic marijuana is sometimes marketed as “potpourri” or “herbal incense.” Popular brand names include

• “Spice,”
• “K2,” and
• “Black Mamba.”

Although synthetic marijuana contains herbs or other leafy materials, the active ingredients are made in a laboratory. They are often processed with toxic chemicals, such as acetone.

Synthetic stimulants are often referred to as “bath salts.”  They are designed to produce effects similar to those of:

• cocaine,
• LSD,
• MDMA, and/or
• methamphetamine.

Simple possession of synthetic drugs for personal use is not a crime under California law.

However, even simple possession is prohibited under the federal Controlled Substances Act (“CSA”), 21 United States Code 811. It is punishable by:

• a fine of not less than $1,000, and
• up to one (1) year in federal prison.

Though selling synthetic drugs or even possessing them for sale is considered drug trafficking under the CSA. They are serious felonies, punishable by:

• a fine of up to $1,000,000, and/or
• up to 20 years in federal prison.

5.6. Health & Safety Code 11363 HS – opening or maintaining a drug house

Under Health & Safety Code 11366 HS, it is a crime to open or maintain any place with the intent to repeatedly or continuously sell or give away illegal controlled substances at that place. This crime is known as “operating a drug house.”

It is common for HS 11366 to be charged along with possession for sale of a controlled substance.

Opening or maintaining a drug house is a wobbler crime. The potential felony prison sentence is

• sixteen (16) months,
• two (2) years or
• three (3) years.

For additional help…

If you or a loved one is charged with Health and Safety Code 11351 HS sales of drugs and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a consultation in the office or by phone.

We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Learn more in our article on California drug sentencing guidelines.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada law on possession for sale of a controlled substance.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.³⁴

¿Habla español? Visite nuestro sitio Web en español sobre el delito de posesión de drogas con la intención de venderlos California.

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