7 Things You Didn’t Know About “Possession For Sale” Charges

In this guide we’ll review California’s possession for sale laws prosecuted under Health & Safety Code 11351.

What Is California Health And Safety Code 11351

California Health and Safety Code 11351¹, refers to drug trafficking which is the trade or dealing of illicit drugs and/or the sale or exchange of drugs.  Possession for sale of narcotics is a felonywhich usually carries with it prison time.

Drug trafficking charges can be the result of transporting, buying or selling of any controlled substance or illegal drug.  This includes, but is not limited to; marijuana, cocaine, methamphetamine, prescription drugs, ecstasy and hallucinogens. Unfortunately many innocent people get accused of HS 11351 when, in fact, they only possessed the drugs for personal use.

Health & Safety Code Section 11351 includes over one hundred (100) specifically named controlled substances, including, but not limited to:

How Does the Prosecutor Prove the Charge?

If you are charged with possessing cocaine (for example), a controlled substance, the prosecutor must prove the following to establish that you are guilty under Health & Safety Code 11351:

• The defendant [unlawfully] possessed a controlled substance²
• The defendant knew of its presence³.
• The defendant knew of the substance’s nature or character as a controlled substance⁴
• When the defendant possessed the controlled substance, (he/she) intended⁵ to sell it⁶.
• The controlled substance was (cocaine, for example)

AND

• The controlled substance was a usable amount⁷.

Example of provable case

Lady is addicted to codeine. She is approached by John, who has a large quantity of prescription cold medicine with codeine in his possession. John offers Lady a few bottles of the prescription in exchange for sex, and Lady agrees.

Based on these circumstances, the prosecutor is likely able to prove John guilty under Health & Safety Code section 11351, in addition to a prostitution charge.

This is because selling, under this charge, means exchanging a listed controlled substance for money, services, or anything of value.

Example of unlikely to be proved case

Again, Lady is addicted to codeine.  She is approached by John, who instead, has a few drops left from a bottle of prescription cold medicine with codeine in his possession.

John offers Lady a drop of the prescription in exchange for sex, and Lady agrees.

Based on these circumstances, the prosecutor is not likely able to prove John guilty under Health & Safety Code section 11351. This is because a usable amount is a quantity that is enough to be used by someone as a controlled substance.

Useless traces or debris of a controlled substance are not usable amounts. However, a usable amount does not have to be enough, in either amount or strength, to affect the user.

Legal Defenses

You Did Not Possess The Controlled Substance

The first element of this charge is that you must possess the controlled substance. Therefore, if you did not actually possess (which means having the substance at the present moment or in hand) the controlled substance, or even constructively possess the controlled substance (which signifies storing the substance somewhere else other than on hand, but still having control over it..), then you have not committed a violation under the essence of Caliofrnia Health And Safety Code 11351⁸.

You Did Not Intend To Sell The Controlled Substance

The similarly related Health & Safety Code section 11350 criminalizes possession of a controlled substance, however, Health & Safety Code section 11351 goes one step further – it includes intent to sell. In addition to possessing the controlled substance, you must also possess the requisite intent to sell that same controlled substance.

Entrapment

The act of law enforcement officers or government agents a person to commit a crime when the potential criminal expresses a desire not to go ahead.  Entrapment is an effective legal defense if the commission or encouragement of the criminal act originated with the police or government agents, instead of with the “criminal.”

Insufficient Evidence

An attorney may be able to show the prosecutor that they do not have enough evidence to convict you under the law of Health and Safety Code § 11351.

This can be done with mitigating evidence or proof that not all elements of the crime were met by showing that the evidence submitted is either insufficient or insubstantial.

Penalties

Penalty	Felony
Fine	Up to $20,000
Community Service	Amount as determined by the court
Probation	3-5 years
Jail or Prison	1 year county jail or 2-4 years state prison

This charge is a felony and additional penalties if convicted including but not limited to: Lose right to possess firearm, lose right to vote, lose right to sit on a jury, lose right to hold public office, must provide law enforcement with DNA sample, immigration consequences, as a drug abuser, if you are a noncitizen.

Eligibility

• Is not eligible for an Deferred Entry of Judgment sentence,
• Is not a “strikeable” offense,
• Does require registration as a drug offender,
• Is not eligible for Proposition 36-diversion sentence.

Possible Immigration Consequences

A Conviction Is A Bar From Relief From Removal Proceedings.

Under the law, “any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.” 8 U.S.C. § 1127(a)(2)(B)(i). “Drug addicts and abusers are deportable and inadmissible even without a conviction. Likewise, those who the government has reason to believe are or were drug traffickers or their assistants are inadmissible, even without conviction. 8 U.S.C. § 1227(a)(2)(B)(ii).

A Conviction Is Considered An Aggravated Felony

Aggravated Felony: This is a predetermined category of crimes that, include both misdemeanor and felony offenses, which can bar a noncitizen from utilizing many different forms of immigration benefits.

If you are convicted of a crime that is automatically considered an aggravated felony, it will likely subject you to removal proceedings before an immigration judge. Here, a conviction under HS 11351, depending on the circumstances is considered an aggravated felony.

A Conviction Is Considered A Crime Of Moral Turpitude

Crime of Moral Turpitude: This includes crimes, which are considered to be objectively morally inexcusable, which includes both misdemeanor and felony offenses.

Any offense which is “shocking to the conscious” of the average person can bar a noncitizen from utilizing many different forms of immigration benefits. 

If you are convicted of a crime that is automatically considered a crime of moral turpitude, it will likely subject you to removal proceedings before an immigration judge. 

Here, a conviction under California Health and Safety Code Section 11351, depending on the circumstances, is considered a crime of moral turpitude.

Related Offenses

• Health & Safety Code 11350- Possession of a Controlled Substance 
• Health & Safety Code 11352 – Sale or Transportation of a Controlled Substance
• Health & Safety Code 11358 – Marijuana Cultivation
• Health & Safety Code 11359- Possession of Marijuana for sale
• Health & Safety Code 11360- Transport, distribute or import Marijuana
• Health & Safety Code 11375(b)- Possession of a Designated Substance for Sale
• Health & Safety Code 11377(a)- Possession of a Non-Narcotic Substance for Sale

1. California health and safety code section 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., available at http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC&sectionNum=11351 [↩]
2. A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it.,), either personally or through another person., CALCRIM 2302 [↩]
3. Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578]. [↩]
4. The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed. CALCRIM 2302 [↩]
5. Specific Intent to Sell Personally or That Another Will Sell Required. People v. Parra (1999) 70 Cal. App. 4th 222, 226 [70 Cal.App.4th 222] andPeople v. Consuegra (1994) 26 Cal. App. 4th 1726, 1732, fn. 4 [32 Cal.Rptr.2d 288] [↩]
6. Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541] [↩]
7. Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23 Cal.Rptr.2d 628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96 Cal.Rptr. 643] [↩]
8. Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552, 556 [67 Cal.Rptr.2d 162]. [↩]