California Health and Safety Code 11355: Sale of Imitation Controlled Substances

Health and Safety Code Section 11355 (HSC 11355) makes it a crime to agree or offer to sell, furnish, or transport a controlled substance, and then deliver or provide an imitation, substitute, or non-controlled substance instead (commonly known as "bunco" or selling fake drugs).

While it involves fake drugs, HSC 11355 is treated seriously by California law because the underlying intent involves deception, fraudulent transaction, and participation in the illegal drug market.

Quick Reference Summary Chart

Metric / Aspect	Misdemeanor Charge	Felony Charge
Charge Classification	Misdemeanor	Offense / Felony
Max Jail Time	Up to 1 Year (County Jail)	16 Months, 2 Years, or 3 Years (County Jail)
Max Fines	Up to $1,000	Up to $10,000
Probation Eligibility	Informal / Summary Probation	Formal Probation (if eligible)
Mandatory Court Fees	$50 Criminalistics Laboratory Fee (HSC 11372.5)	$50 Criminalistics Laboratory Fee (HSC 11372.5)
Immigration Impact	May involve moral turpitude/fraud implications	Potential deportable offense due to fraud/substance fraud

What Prosecutors Must Prove

To convict someone under California Health and Safety Code 11355, the prosecutor must establish the following legal elements beyond a reasonable doubt:

Agreement or Offer: The defendant agreed, offered, or arranged to sell, furnish, transport, give away, or administer a genuine controlled substance (such as cocaine, heroin, methamphetamine, or prescription opioids).
Delivery of a Substitute: The defendant subsequently delivered, provided, or arranged to deliver a non-controlled substance, an imitation drug, or a substitute material (such as baking soda, chalk, flour, or sugar) instead of the promised controlled substance.
Intent: The defendant intended to execute the agreement or offer by delivering the non-controlled substitute in place of the requested drug.

Penalties & Sentencing

HSC 11355 is a "wobbler" under California law, meaning prosecutors have the discretion to charge it as either a misdemeanor or a felony based on the facts of the case and the defendant's prior criminal history.

Misdemeanor Penalties

County Jail: Up to 1 year in county jail.
Fines: Up to $1,000 in base fines, plus applicable court fees and penalty assessments.
Probation: Misdemeanor (summary) probation, which may include community service or court-ordered conditions.

Felony Penalties

County Jail: 16 months, 2 years, or 3 years served in county jail pursuant to California Penal Code 1170(h) realignment.
Fines: Up to $10,000 in fines.
Probation: Formal felony probation with regular oversight by a probation officer.

Mandatory Fees & Collateral Consequences

Criminalistics Laboratory Fee: Under HSC 11372.5, a mandatory $50 fee (plus penalty assessments) is assessed for drug offense processing.
Immigration Consequences: Because HSC 11355 involves elements of fraud and drug trade participation, a conviction can trigger severe immigration consequences, including deportation or inadmissibility for non-U.S. citizens.
Professional Licensing: Convictions can negatively impact state-issued professional licenses (e.g., nursing, real estate, law) as crimes involving moral turpitude or dishonesty.

Practical Example

Scenario:

An undercover police officer approaches Alex in downtown Los Angeles and asks to purchase $100 worth of cocaine. Alex agrees to the deal, accepts the $100 cash, and hands the undercover officer a small plastic bag filled with crushed white chalk.

Legal Outcome:

Even though Alex did not possess or transfer any real cocaine, he fulfilled both conditions of HSC 11355: he negotiated a sale for a controlled substance and delivered a substitute (chalk). Alex can be arrested and prosecuted under HSC 11355 for selling an imitation controlled substance.

Legal Defenses Against HSC 11355 Charges

A strong defense strategy against charges under California Health and Safety Code 11355 depends on the case's specific facts. Common legal defenses include:

No Delivery of a Substitute: HSC 11355 requires the actual delivery or transfer of the substitute substance. If negotiations occurred but no physical exchange took place, the offense is incomplete.
Lack of Agreement or Offer: If there was no clear agreement or offer to provide a controlled substance—such as a misunderstanding or a joke—the prosecutor cannot establish the first element of the crime.
Genuine Belief the Substance Was Real: If the defendant honestly believed they were possessing and transferring an actual controlled substance, they lacked the specific intent required under HSC 11355 (though this could expose them to attempted drug sale charges under HSC 11352 / PC 664).
Entrapment: If law enforcement or an undercover operative induced or pressured the defendant into committing a crime they would not have otherwise committed, an entrapment defense may apply.
Unlawful Search and Seizure: If law enforcement seized evidence, statements, or the alleged substitute substance in violation of the Fourth Amendment (without a valid warrant or probable cause), an attorney can file a motion to suppress the evidence under Penal Code 1538.5.

Related Laws & Statutes

California Health & Safety Code 11350: Illegal possession of controlled substances (e.g., cocaine, heroin, prescription opioids).
California Health & Safety Code 11351: Possession of controlled substances for sale.
California Health & Safety Code 11352: Transportation, sale, or distribution of controlled substances.
California Health & Safety Code 109575–109800 (Imitation Controlled Substances Act): Covers manufacturing, distributing, or possessing fake or imitation drugs designed to look like brand-name pharmaceuticals.
California Penal Code 484 / 487 / 488 (Theft by Trick or False Pretenses): Charges fraud or theft when money is taken under false promises or misrepresentations.
California Penal Code 664 / HSC 11352 (Attempted Sale): Attempting to sell actual controlled substances where no delivery was completed or where genuine drugs were intended.

Frequently Asked Questions (FAQs)

What is the difference between selling real drugs and violating HSC 11355?

HSC 11352 covers the sale or transportation of actual controlled substances. HSC 11355 specifically targets transactions where someone promises a real controlled substance but delivers a non-controlled substitute (like baking soda, sugar, or chalk).

Can someone be charged under HSC 11355 if they genuinely believed the substance was real?

If a person honestly believed the substance they delivered was a controlled substance, they may lack the intent required for delivery of a fake under HSC 11355. However, depending on the evidence, they could instead face charges for attempted sale of a controlled substance under HSC 11352 / PC 664.

Is HSC 11355 considered a misdemeanor or a felony?

HSC 11355 is a "wobbler" in California law. Prosecutors evaluate facts such as the suspect's criminal history, the monetary amount involved, and prior drug convictions to determine whether to file misdemeanor or felony charges.

Does HSC 11355 require money to change hands?

No. An actual transfer of money is not strictly required if an agreement or offer to furnish, transport, or deliver was made, followed by the actual delivery of the substitute substance.

What are common legal defenses against an HSC 11355 charge?

Common defenses include lack of agreement/offer, false accusations, identity errors, failure to deliver the substitute substance, or unlawful search and seizure by law enforcement in violation of Fourth Amendment rights.

How does HSC 11355 interact with California's Criminal Justice Realignment (PC 1170(h))?

If sentenced for a felony violation of HSC 11355, any jail time is served in county jail rather than in state prison under California Penal Code 1170(h), provided the defendant has no disqualifying prior violent or sexual convictions.

Speak to a California Drug Crime Defense Lawyer

Facing charges under California Health and Safety Code 11355 is a serious matter that can impact your freedom, career, and future. Whether charged as a misdemeanor or a felony, an HSC 11355 allegation requires a targeted legal strategy to challenge the prosecution's evidence regarding intent, agreement, or delivery.

If you or a loved one are under investigation or have been arrested for selling or distributing an imitation controlled substance, consulting an experienced California criminal defense attorney at Esiner Gorin LLP immediately can help protect your constitutional rights, explore potential defenses such as entrapment or illegal search and seizure, and work toward reducing or dismissing the charges.

Schedule your consultation by calling (818) 781-1570 or by using the contact form.

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