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Possession of a Controlled Substance for Sale - California Health and Safety Code § 11351

Posted by Alan Eisner | Aug 06, 2020

Possession of a Controlled Substance for Sale - California Health and Safety Code 11351
California HS 11351 makes it a crime to have possession of controlled substances with intent to sell them.

Health and Safety Code Section 11351 contains California's prohibition on possessing or purchasing certain controlled substances with the intent of selling them to others.

If the prosecutor is able to prove beyond a reasonable doubt that you possessed the controlled substance with intent to sell it, you will be facing severe life-alterning penalties.

It should be noted that selling means exchangng the controlled substance for not only money, but also for services or anything of value.

This type of drug crime is a felony offense that carries a sentence of two, three, or four years in a California state prison if convicted, along with a fine up to $20,000.

It should be noted that a defendant convicted for HS 11351, they are not eligible for a drug diversion program that is typically available for someone convicted of simple drug possession under HS 11350. 

To give readers a better understanding of possession of drugs with intent to sell charges, our Los Angeles criminal defense lawyers are providing a review below.

What Types of Narcotics Are Covered Under HS 11351?

The list of narcotics or drugs covered by HS 11351 includes all drugs covered by the Controlled Substances Act.

While this includes many rare chemicals, it also includes common street drugs such as:

  • Cocaine
  • Opiates and their derivatives
  • Heroin
  • LSD
  • Peyote
  • GHB
  • Hallucinogenic substances

Interestingly, a defendant can be prosecuted for a violation of HS 11351 for possessing certain prescription drugs such as oxycodone, if it can be shown that the defendant intended to sell the drugs to others who do not have a valid prescription.

How Can a Prosecutor Prove Intent to Sell?

Typically, a prosecutor will charge someone with drug possession for sales when there is relevant evidence to prove their case, such as:

  • Packaging of the controlled substances in baggies
  • Large amounts of cash
  • Large quantities of controlled substances
  • Scale for weighing the drugs
  • Frequent drug transactions at a location

How Can a Prosecutor Prove Possession?

As the name implies, possession of narcotics for sale is substantially a possessory offense.  Possession can be proven either through actual possession, constructive possession, or joint possession.

How Can a Prosecutor Prove Intent to Sell Controlled Substances?
Prosecutors will file drug sales cases when there is evidence to prove defendant was selling drugs, such as baggies and a scale.

Actual possession

A defendant actually possesses a controlled substance if it is on the defendant's person, in their belongings such as a backpack, or in the defendant's pocket. 

Oftentimes, however, actual possession cannot be proven. Nevertheless, the government can secure a conviction where constructive possession can be shown.

Construction possession 

A defendant constructively possesses a controlled substance where the substance is:

  • In a location where defendant has access to it
  • In a state in which the defendant can exercise dominion and control over it

Example of “Constructive” Drug Possession

To illustrate the constructive possession concept, imagine the following hypothetical. 

Law enforcement raids a home with a search warrant having received numerous tips and complaints from neighbors that drugs are being sold out of the home. 

While most of the home has nothing of interest inside it, a large quantity of controlled substance is located in one particular bedroom. 

The residents identify the roommate who rents that bedroom and he is arrested for a violation of Health and Safest Code 11351. 

Adding or subtracting facts about the bedroom will make the prosecutor's case either stronger or weaker on constructive possession. 

Imagine, for instance, that the bedroom in question has a series of additional locks which were added to the door by the defendant and for which only he has the key. 

The case for constructive possession is now much stronger as only the defendant would have plausibly exercised dominion and control over the contents of the bedroom. 

Example of “Joint” Drug Possession

On the other end of the spectrum, imagine that the bedroom contains two beds and the drugs were located in the bottom of a drawer containing women's clothing belonging to the defendant's girlfriend who also lives in the room. 

Now the prosecutor's case for constructive possession is weaker as it is equally if not more plausible that the girlfriend was in fact the one dealing drugs. 

However, in more ambiguous cases of “joint control,” courts have held that both occupants of a room exercised dominion and control over the narcotics and could therefore both be prosecuted.

What Must Prosecutor Prove for a HS 11351 Conviction? 

In order for the prosecutor to obtain a conviction for possession of a controlled substance for sales in violation of California Health and Safety Code 11351, they must be able to prove all the elements of the crime listed under CALCRIM 2302, including:

  • Defendant had unlawful possession of a controlled substance
  • Defendant knew of its presence, and
  • Knew of the substance's nature as a controlled substance
  • There was a usable amount of drugs to sell
  • Defendant had intent to sell the controlled substances

As you can see, beyond possession, the prosecution under HS 11351 must demonstrate the defendant's intent to sell. 

Intent to sell 

In cases of undercover sting operations and controlled buys by law enforcement agents or cooperators, proving intent to sell may be simple. 

As discussed above intent to sell is inferred based on surrounding facts such as the quantity of drugs seized, the presence of sales paraphernalia such as scales, baggies, large amounts of cash, etc.

It's also based on the experience and training of drug enforcement officers who can testify about the practices which drug dealers often engage in when handling or transporting drugs for sale. 

In short, the government does not have to prove that an actual sale occurred to sustain a charge for possession with intent to sell under HS 11351.

What are the Related California Offense for HS 1351?

Health and Safety Code 11350 – drug possession

Health and Safety Code 11352 – sales or transportation of controlled substances

Health and Safety Code 11359 – possession of marijuana for sale

Health and Safety Code 11366 – operating a drug house

Health and Safety Code 11377 – possession of methamphetamine

Health and Safety Code 11378 – possession of meth for sale

Health and Safety Code 11379 – sales or transportation of meth

What Are the Penalties for HS 11351 Drug Sales?

What Are the Penalties for California HS 11351 Drug Sales?
A California HS 11351 drug sales case is a straight felony that carries a sentence of up to four years in state prison.

A violation of Health and Safety Code 11351 is a straight felony under California law. The penalties for a defendant convicted under this section include:

  • Two, three, or four years in the California state prison
  • A fine up to $20,000
  • Formal felony probation

As stated above, unlike a case involving HS 11350 simple possession for personal use, a defendant convicted under Section 11351 is ineligible for drug diversion. 

Sentencing enhancements 

Sentencing enhancements for possession of extremely large amounts of narcotic substances may also apply. These are commonly known as “aggravating factors.”

The weight of the controlled substance could increase the amount of time in prison. Any defendant could face an additional:

  • Three years for over one kilogram
  • Five years for over two kilograms
  • Ten years for over ten kilograms
  • Fifteen years for over 20 kilograms
  • Twenty years for over 40 kilograms
  • Twenty-five years for over 80 kilograms

How Can I Fight HS 11351 Drug Sales Charges?

Defenses to a charge under HS 11351 often include the claim that the drugs involved were possessed for only personal use, which does not render the conduct lawful but does avoid the more serious penalties for sales. 

As discussed above, the issue of possession will also be litigated. Let's review some common defenses:

No intent to sell 

Just because you may have possessed the drug, you might have had no intent to actually sell them. We might be able to make the argument you only had possession of the controlled substance for personal use, but had no intent to sell.

While possession of drugs is still a crime under HS 11350, it's a much less serious offense and you would be eligible for a drug diversion program.

Illegal search and seizure 

The Fourth Amendment of the United States Constitution gives you the right to be free from unreasonable searches and seizures.

This means law enforcement is required to follow certain procedures when making traffic stops and arrests, including establishing sufficient “probable cause” to make an arrest.

We might be able to argue police failed to follow these rights and file a motion to suppress evidence under California Penal Code 1538.5. If successful, the drug evidence can't be used against you and the prosecutor would most likely be forced to drop the charges.

Other defenses for HS 11351 charges include lack of possession or lack of knowledge.

If you, or someone you know, has been arrested for, charged with, or is pending trial for a charge of possession of narcotics with intent to sell under California Health and Safety Code Section 11351, contact our team of experienced Los Angeles criminal defense attorneys for an initial consultation. 

We can advise you on the steps to take to maximize your chances of a positive outcome in your, or your loved one's case.

Eisner Gorin LLP is a top-ranked criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067. Contact our office for a consultation at (310) 328-3776.

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About the Author

Alan Eisner

Alan Eisner  Van Nuys, California (818) 781-1570 (818) 788-5033 Email Me  Alan Eisner has practiced criminal law for over 28 years in Los Angeles County . Mr Eisner is a Certified Specialist in Criminal Law. (The California State Bar's Board of Legal Specialization has designated Mr. Eisner as a...

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