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

The language of the code section reads as follows:

11351. 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 “indicia of sale” are present. This typically means there is:

• 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

Penalties

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, we may 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).

Fighting The Case

The best defense under Health and Safety Code 11351 HS depends on the facts of your case. Common defenses 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?
• 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. The police conducted an illegal search and/or seizure
  • 3.2. You had no intent to sell
  • 3.3. You did not possess the drugs
  • 3.4. You did not know the drugs were there
• 4. What are the penalties?
  • 4.1. Aggravating factors
  • 4.2. Drug diversion
• 5. Related crimes
• Additional resources

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.

Examples of common controlled substances regulated under this law include:

• opiates and opiate derivatives,
• cocaine,
• LSD,
• 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. Examples are:

• codeine,
• oxycodone (OxyContin), 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 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 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

1.2. Knowledge

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

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

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 person/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

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 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 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.

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

Neither possession for personal use nor possession for sale necessarily involves the actual sale or transfer of controlled substances. As a result, the key question is whether you or not you intended for the drugs to be sold.

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

Law enforcement and prosecutors typically rely on several factors 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 sale.

The packaging of the drug

How the controlled substance is packaged is oftentimes the most damaging type of evidence in possession for sale 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 we can have your possession for sale charge reduced to personal possession.¹⁶

3. What are the best defenses to 11351 HS?

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

3.1. 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

3.2. 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

3.3. 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

3.4. 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.

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 to try to negotiate a charge reduction to personal possession instead of possession for sale.

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. 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.

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