Possession of cocaine or crack for sale is obviously more serious a crime than possession merely for personal use. It is always charged as felony with a potentially long jail term.
When charging you with possession for sale under H.S.C. § 11351, the prosecution must prove that in addition to having cocaine, you intended to sell it or have someone sell it on your behalf. The prosecution must also prove that there were enough quantities of cocaine or crack for sale. Some of the indicators that you could be possessing cocaine or crack for sale include:
- You had large quantities of crack or cocaine;
- You packaged the cocaine in separate packaging suggesting the intention to distribute them;
- Multiple people entering and leaving your place within a short timespan;
- Scale, measuring equipment, and other paraphernalia that would be associated with selling drugs;
- Additional packaging material;
- A lot of cash in small denominations.
See: Possession for Sale of a Controlled Substance (California Health and Safety Code section 11351: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11351.html)
Possession for Sale of Methamphetamine (California Health and Safety Code section 11378: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11378.html)
Possession for Sale of Methamphetamine While on Bail (California Penal Code section 12022.1: https://codes.findlaw.com/ca/penal-code/pen-sect-12022-1.html)
CALCRIM Number 2302 (“Possession for Sale of Controlled Substance — Health & Saf. Code §§ 11351, 11351.5, 11378, 11378.5”): https://www.justia.com/criminal/docs/calcrim/2300/2302/
CALCRIM Number 2352 (“Possession for Sale of Cannabis — Health & Saf. Code § 11359”): https://www.justia.com/criminal/docs/calcrim/2300/2352/
Punishment for Possession of Cocaine or Crack for Sale Conviction (H.S.C. section 11351)
The low, mid, and high prison terms for a possession of cocaine for sale conviction is 2, 3, and 4 years. For crack, the range is higher – 3, 4, and 5 years.
You could face additional consequences for each additional sale you made or intended to make. You could also be deported if you are a legal immigrant in the U.S.
You also face additional penalties for possessing or purchasing cocaine base for sale. The exact sentencing enhancements for possessing cocaine base depend on the weight of the base. For instance, if the substance exceeds 80 kilograms, you could face an additional 25 years in prison and could pay a fine as high as eight million dollars.
Defenses to a Charge of Possession of Cocaine or Crack for Sale (H.S.C. section 11351)
The defense strategies that work for possession of cocaine or crack for sale include:
- You did not know that the substance you carried was cocaine, crack, or any other controlled substance. Knowledge is a fundamental element of possession of cocaine or crack for sale. However, if you are unaware of the substance’s nature, you cannot be guilty of this crime. This defense may particularly work if you are not one with a known drug history (whether as a user or dealer).
- You did not possess crack or cocaine. This defense works where the drugs were not found in your physical possession.
- You did not know that you possessed the drugs. You could find yourself charged for possession even when you were not aware of the presence of the drugs. This could be due to someone planting the cocaine on you or your property.
- The cocaine or crack was in insufficient quantities to sell. If you only had trace amounts of cocaine, you cannot be charged with possessing cocaine for sale.
- You did not intend to sell the cocaine or crack. Using this defense, you are admitting that you possessed cocaine or crack. However, you intended to use it yourself rather than sell it. If this defense works, the court will reduce your charges to the lesser offense of simple possession.
People convicted of possessing crack or cocaine for sale are mostly ineligible for any alternative sentencing. However, if your charges are reduced to simple possession, you could participate in drug court or drug diversion, which could result in the eventual dismissal of your charges.
Manufacturing cocaine or crack is an offense under H.S.C. § 11379.6(a), which makes it a crime to manufacture, produce or compound a narcotic. If you are facing charges of manufacturing crack or cocaine, the prosecution must prove these elements:
- You manufactured, made, or compounded crack or cocaine;
- You knew that the substance was crack or cocaine.
Even if you did not directly manufacture the cocaine or crack, the prosecution could secure a conviction by proving that you knowingly participated at the beginning or intermediate steps of creating cocaine or crack.
See also: Manufacture of an Imitation Controlled Substance (California Health and Safety Code section 109575: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-109575.html);
CALCRIM Number 2330 (“Manufacturing a Controlled Substance — Health & Saf. Code §§ 11379.6(a), 11362.3”): https://www.justia.com/criminal/docs/calcrim/2300/2330/
CALCRIM Number 2331 (“Offering to Manufacture a Controlled Substance — Health & Saf. Code §§ 11379.6(a) & (c)”): https://www.justia.com/criminal/docs/calcrim/2300/2331/
CALCRIM Number 2335 (“Possession with Intent to Manufacture Methamphetamine or N- ethylamphetamine — Health & Saf. Code § 11383.5(a)”): https://www.justia.com/criminal/docs/calcrim/2300/2335/
CALCRIM Number 2336 (“Possession with Intent to Manufacture PCP — Health & Saf. Code § 11383(a)”): https://www.justia.com/criminal/docs/calcrim/2300/2336/
CALCRIM Number 2337 (“Possession with Intent to Manufacture Methamphetamine — Health & Saf. Code § 11383.5(b)(1)”): https://www.justia.com/criminal/docs/calcrim/2300/2337/
CALCRIM Number 2338 (“Possession of Isomers or Precursors with Intent to Manufacture Controlled Substance — Health & Saf. Code § 11383.5(c)-(f)”): https://www.justia.com/criminal/docs/calcrim/2300/2338/
Punishment for Manufacturing Cocaine and Crack Conviction (H.S.C. section 11379.6)
Manufacturing cocaine or crack is a felony in California. If convicted, you face a minimum of three years and up to seven years in state prison.
Manufacturing cocaine is considered an aggravated felony in California that could also lead to the deportation of a legal immigrant. In addition to these consequences, you will lose your right to possess, buy, or own a firearm in California.
Defenses to a Charge of Manufacturing Cocaine and Crack (H.S.C. section 11379.6)
Fortunately, you can fight these charges by challenging some of the elements of the offense. The most common defenses to manufacturing crack or cocaine include:
- You only participated in the preparatory stages of the process. You cannot be found guilty of manufacturing cocaine or crack unless the court can prove that you participated at the beginning or intermediate steps of the manufacturing process.
- You did not know that what was being made was cocaine, crack, or a controlled substance. To be guilty, you must have known that you were producing a controlled substance. However, if you did not realize this was a controlled substance, you may not be guilty of manufacturing crack or cocaine.
- You were arrested during an unlawful search and seizure. While manufacturing cocaine or crack is illegal, it is also unlawful for a police officer to search a property or seize the items within it without a valid search warrant. Therefore, if police arrested you during an illegal search or seizure, you can file a motion to suppress that evidence.
- You were a victim of police entrapment. Entrapment occurs when a law enforcement officer pressures, harasses, or threatens you into committing the offense. When using this defense, you must show that you manufactured crack or cocaine due to the entrapment.
Drug diversion is a form of alternative sentencing that allows defendants to participate in a drug treatment program instead of a jail sentence. For defendants charged with offenses related to cocaine, you are only eligible for drug diversion if you were convicted of possession for personal use.
You can participate in drug diversion under P.C. § 1000 if:
- You have not had a disqualifying conviction in the last five years;
- You were not involved in violence or threatened violence when committing the offense;
- There’s no evidence of a serious drug offense such as selling or manufacturing drugs; and
- You have not had a felony conviction in the last five years.
Before approving you for pre-trial diversion, the court considers your age, employment status, educational background, family and community ties, past substance use behavior, and other mitigating factors that show you could benefit from a drug treatment program instead of incarceration.
You also have the freedom to accept or decline participation in a drug diversion program.
During the drug diversion program, you must adhere to a set of conditions, including taking regular drug tests. The court receives regular reports on your progress in the drug diversion program.
The prosecution could initiate a motion to terminate your participation in the drug diversion program if you fail to adhere to the conditions of pre-trial diversion. Approval of this motion means your case will proceed towards trial.
However, if you complete the program successfully, your case will be dismissed.
See also: Mental Health Diversion (California Penal Code section 1001.36: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1001.36.&lawCode=PEN)
Judicial Diversion (Court Initiated Diversion) (California Penal Code section 1001.95: https://codes.findlaw.com/ca/penal-code/pen-sect-1001-51.html)
Informal Diversion (California Penal Code section 1001.94: https://law.justia.com/codes/california/2016/code-pen/part-2/title-6/chapter-2.96/section-1001.94; California Penal Code section 1001.95: https://codes.findlaw.com/ca/penal-code/pen-sect-1001-51.html)
Military Diversion (a.k.a. Veterans Diversion) (California Penal Code section 1001.80: https://codes.findlaw.com/ca/penal-code/pen-sect-1001-80.html)
Proposition 36 came as a relief for many non-violent offenders as it allows them the option to participate in drug treatment instead of incarceration.
The key difference between drug diversion and Prop 36 is that you must enter a guilty plea before participating in the drug treatment program under Prop 36.
This means that your charges will remain on your record even after the case is dismissed, and you must petition the court to dismiss the charges and your arrest thereafter.