California Health and Safety Code 11351 HS makes it a felony to possess certain controlled substances in order to sell them. These include illegal drugs, such as cocaine, heroin and LSD, as well as 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 a person has drugs and there are “indicia of sale” present. Indicia of sale can include:
- Large quantities of the narcotic or controlled substance
- Packaging of the drug in separate baggies or bindles
- 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 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 didn’t possess a controlled substance
- The drugs weren’t yours
- The drugs were for personal use
- You didn’t know the narcotics were there
- The drugs were found during an illegal search and/or seizure
- The police falsified evidence
Experienced California drug crime attorneys
Unfortunately, many innocent people get arrested and charged with possessing or purchasing narcotics for sale. That’s where we come in.
Our experience as former police investigators and deputy district attorneys equips us with the inside knowledge that allows us to help you fight unfair drug charges.
Below, our California drug crime defense attorneys1 explain Health & Safety Code 11351 HS by addressing the following:
5.2. Health and Safety Code sections 11377, 11378 and 11379 HS — possession, sales and transportation of methamphetamines
5.5. Health and Safety Code 11357.5 & 11375.5 HS — sale / Possession for sale of synthetic cannabis or stimulants
California Health & Safety Code 11351 HS is one of several laws that prohibit the illegal sale or distribution of narcotics. 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):
This law also prohibits you from possessing or purchasing certain prescribed drugs for sale. These include (but are not limited to):
But before a prosecutor can convict you of possessing a controlled substance for sale, he/she must prove that you
- possessed or purchased the drug,
- knew you did so,
- knew of the drug’s nature as a controlled substance,
- possessed enough of the drug to use or sell, and
- 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.
In California law, the meaning of the word “possession” is equivalent to control. This type of control may be actual, constructive, or joint.
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.
Constructive possession is a bit more difficult to identify. You have constructive possession over a controlled substance if you have
- access to it, or
- the right to control it (despite the fact that you don’t physically possess it).
Constructive control is typically proven by circumstantial evidence…that is, evidence that doesn’t directly point to guilt.
Example: Bob keeps a stash of crack cocaine in the nightstand next to his bed. He’s rarely in actual physical possession of the drug. But he’s nevertheless in constructive possession of it.
Joint control refers to a situation where two or more people have possession of the drug.
Example: Defendant and his brother were held to have joint possession of heroin that was found in the headboard of a bed in the defendant’s bedroom. The court reasoned that both men had joint, constructive possession of drugs since they were found in the bedroom over which they both exercised joint dominion and control when hiding/accessing/selling the drugs.5
Before the prosecutor can convict you of possession for sales, he/she must prove that you knew
- you possessed the drug, and
- that the drug was, in fact, a controlled substance.6
Let’s explore these two types of knowledge.
It would be unfair to hold someone accountable for possessing drugs for sale if he/she didn’t know the drugs were in his/her possession.
This means that if, for example, you borrowed a friend’s car…and police discovered drugs in the trunk…you shouldn’t be held criminally liable if you didn’t 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 aren’t guilty of drug possession unless you knew about it and consented to it.
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.
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
Whether you intend to sell the drugs is often the most critical part of the prosecution’s case in a “possession for sales” charge. But this doesn’t 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.
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 the possessor’s intent.
“Intent” can be difficult to prove. Absent a clear, voluntary confession to the crime, one’s 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 an “expert” witness…that is, a narcotics officer…to offer an opinion that the drugs were going to be sold by the defendant (as opposed to consumed by the defendant) based on these factors.14
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 he/she has the means to do so. So unless you’re 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 a possession for sales case. If the drugs are packaged in numerous separate
- 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 isn’t conclusive.
And 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, eligible defendants may be able 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.
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.
There are a number of ways that police can violate California’s search and seizure laws. For example, an illegal search / 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 weren’t 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, he/she 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
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.
And 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 isn’t 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
If your California drug crimes defense attorney can convince the prosecutor, judge, and/or jury that you didn’t 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
Similarly, if the prosecutor can’t prove that you knew about the drug’s presence or narcotic character, you can’t 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 the defendant has no legal record of past drug experience. This type of defendant can most effectively convince a judge/jury that he/she truly didn’t know that the drugs were a controlled substance…as opposed to a known “user” or “dealer” trying to make this same claim.
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,
- a maximum $20,000 fine.20
And 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.
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
- 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
“Drug diversion”…permissible under
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 doesn’t 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.
But because you can’t possess a controlled substance for sale without necessarily possessing the drug, simple possession is what’s 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.
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 — some may be charged in lieu of 11351.
Examples of some of the most common related offenses include (but are not limited to):
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. And 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):
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 between16 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.
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.
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: ·
- 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:
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:
- MDMA, and/or
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.
But 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.
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 sentence is sixteen (16) months, two (2) years or three (3) years in state prison.
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 free consultation in 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.
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.
1 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2 California Health and Safety Code 11351 HS — Possession or purchase of controlled substances for sale; punishment.
3 See same.
4 California Jury Instructions CALCRIM 2302.
5 Facts resemble those in People v. Saldana (1984) 157 Cal.App.3d 443.
6 See CALCRIM 2302, supra.
7 People v. Guy (1980) 107 Cal.App.3d 593, 600-601.
8 People v. Eckstrom (1986) 187 Cal.App.3d 323, 331.
9 Newport Beach criminal defense attorney John Murray represents clients accused of violating Health and Safety Code 11351 HS California’s possession or purchase of a controlled substance for sale law throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Laguna Beach, Irvine, Anaheim and Westminster, as well as in the South Bay (including Long Beach and Torrance).
10 People v. Leal (1966) 64 Cal.2d 504, 512.
11 People v. Rubacalba (1993) 6 Cal.4th 62, 66.
12 People v. Parra (1999), 70 Cal.App.4th 222, 226-227.
13 California Health and Safety Code 11350 HS — Possession of controlled substances.
14 People v. Newman (1971) 5 Cal.3d 48, 53 (disapproved on other grounds).
16 California Health and Safety Code 11550 HS — Under the influence of a controlled substance.
17People v. Baca (1967) 254 Cal.App.2d 428.
18 CALJIC 12.06 Possession-Not Unlawful-Burden of Proof.
19Armstrong v. Superior Court (1990) 217 Cal.App.3d 535.
20 See Health and Safety Code 11351 HS California’s possession or purchase of controlled substances for sale law, endnote 2, above.
See also California Health and Safety Code 11372 HS — Fines.
228 U.S. Code Section 1227 — Deportable aliens.
23 California Health and Safety Code 11351.5 HS — Possession of cocaine base for sale; punishment.
See also California Health and Safety Code 11372 HS — Fines, endnote 20, above.
24 California Health and Safety Code 11370.4 HS — Convictions under specified sections with respect to substances containing heroin, cocaine base, cocaine, methamphetamine, amphetamine or phencyclidine; additional terms.
25 See California Health and Safety Code 11372 HS – Fines, endnote 20, above.
26 California Health and Safety Code 11370.2 HS — Sentence enhancements for persons with certain prior convictions.
27 California Penal Code 1210.1 PC (also known as Proposition 36)
28 California Penal Code 1000 PC — Application of chapter to certain violations.
29 See endnotes 27 and 28, above.
30 People v. Saldana (1984), 157 Cal.App.3d 443, 454-455.
31 Health and Safety Code 11352 HS — Transportation, sale, giving away, etc., of designated controlled substances; punishment.
32 Health and Safety Code 11377 HS – Possession of methamphetamines.
33 California Health and Safety Code 11378 HS – Possession of methamphetamines for sale; punishment.
See also California Health and Safety Code 11379 HS — Transportation, sale, furnishing, etc. of methamphetamines; punishment.
34 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada’s drug crimes. Our Nevada law offices are located in Reno and Las Vegas.