Possession For Sale Of A Controlled Substance Drugs Narcotics

Before the prosecution can convince a jury to convict you of possession of narcotics or drugs for sale, the Deputy District Attorney must prove your knowledge of:

• Drug possession. The court cannot hold you accountable for drug possession if you did not know that you had the drugs in the first place. Therefore, your knowledge of the existence of the drug must be made clear to the jurors.
• The nature of the alleged substance is a controlled drug. The prosecution will only be able to secure your conviction after proving your knowledge of the drug’s illegal nature. Police officers and prosecutors can find evidence of knowledge depending on your past criminal conduct and actions following the discovery of the substance.

You Possessed a Usable Amount of the Controlled Substance

The court cannot find you guilty of violating H.S.C. § 11351 (https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11351.html) for having useless traces or mere residue of a controlled substance in your possession.

The quantity of the drug found on you or in your control must be enough for use by the person to whom you intended to sell the substance. However, it is crucial to understand that the prosecution does not need to prove that the amount was enough to psychoactively affect the user. In other words, the amount does not need to be enough to actually get you high.

See: psychoactive effects of drugs: https://www.medicalnewstoday.com/articles/types-of-psychoactive-drugs

You Intended to Sell the Narcotics or Drugs

Your intention regarding the controlled substance is the most critical element for the prosecution to prove. Regardless of whether you intended to personally sell the drugs or have someone else sell them for you, the jury could find you guilty under H.S.C. § 11351.

If you are found to be in possession of a restricted substance, and the evidence of your intent to sell is not clear, the prosecution will charge you with the personal possession of a controlled substance which is a lesser offense.

See: Possession of a Controlled Substance (California Health and Safety Code section 11350: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11350.html). See also Possession of Methamphetamine (California Health and Safety Code section 11377: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11377.html); CALCRIM Number 2304 (“Simple Possession of Controlled Substance — Health & Saf. Code §§ 11350, 11377”): https://www.justia.com/criminal/docs/calcrim/2300/2304/

Although the following factors are not necessary to secure a conviction for each H.S.C. § 11351 case, the prosecution could use them to establish the element of intent to sell:

• The quantity of the substance. If the law enforcement officers find you possessing more drugs than an average person would reasonably consume, the prosecution will assume that you intended to sell the substance. However, this argument is flawed because you may be a habitual user and thus have the incentive to stock up on your drugs. Therefore, a large quantity of drugs does not always establish the intent to sell.

See CALCRIM Number 3200 (“Controlled Substance: Quantity — Pen. Code §§ 1203.07(a)(1), (2) & (4); Health & Saf. Code §§ 11352.5, 11370.4”): https://www.justia.com/criminal/docs/calcrim/3100/3200/

• Drug packaging. How you package a controlled substance may suggest to the authorities that you possess the substance for sale. If the drugs are found in bundles, small baggies, or in any other receptacle associated with sales, the police officer will testify that you intended to sell the drugs.
• Presence of drug paraphernalia. Drug paraphernalia is any object or tool used in drug consumption. Since paraphernalia is often associated with drug use, its presence can support your arguments that your drugs were solely for personal use. However, in cases where measuring instruments or other tools are used for mixing and packaging the drugs, the prosecutor’s case against you is obviously strengthened.

See Possession of Drug Paraphernalia (California Health and Safety Code section 11364: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11364.html);

See also CALCRIM Number 2410 (“Possession of Controlled Substance Paraphernalia — Health & Saf. Code § 11364”): https://www.justia.com/criminal/docs/calcrim/2300/2410/

CALCRIM Number 2411 (“Possession of Hypodermic Needle or Syringe — Bus. & Prof. Code § 4140”): https://www.justia.com/criminal/docs/calcrim/2300/2411/

• Drug ledgers. Possessing a drug ledger or other form of “pay/owe sheets” is obviously powerful evidence that you were involved in trafficking (or were at least intending to be so involved).

See: analysis of drug ledgers: https://www.dea.gov/sites/default/files/pr/microgram-journals/2017/mj14-1_1-8.pdf

• Being under the influence. If you were under drug influence at the time of arrest, that evidence would obviously support your arguments regarding personal use. However, it is equally obvious that being under the influence of a controlled substance is a criminal offense.

See Being Under the Influence of a Controlled Substance (California Health and Safety Code section 11550: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=11550&lawCode=HSC.

See also CALCRIM Number 2400 (“Using or Being Under the Influence of Controlled Substance — Health & Saf. Code § 11550”): https://www.justia.com/criminal/docs/calcrim/2300/2400/

Sentencing for Possession of Drugs for Sale (H.S.C.section 11351: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11351.html)

Possession for the sale of narcotics or a controlled drug is usually charged as a felony. But because the prosecutor has the discretion to charge you with a misdemeanor instead, this offense is known as a “Wobbler” (California Penal Code section 17(b): https://codes.findlaw.com/ca/penal-code/pen-sect-17.html).

 A conviction under this statute entails the following:

• 2, 3, or 4 years in prison;
• A one-year jail sentence accompanied by probation (if convicted of a misdemeanor or felony); and
• Adverse immigration consequences, including deportation or inadmissibility in the United States.

See immigration consequences for drug convictions: https://www.ilrc.org/sites/default/files/resources/chart-note_08-controlled_substances.pdf

Aggravating Factors in an H.S.C. § 11351 Conviction

Aggravating factors are circumstances that make your criminal charges more severe and thus entail an enhanced prison sentence (assuming, of course, the judge requires you to go to prison). If you face a conviction for purchasing or selling cocaine, you could face a maximum of five years in jail.

Additionally, when the controlled substance that attracts your H.S.C. § 11351 charge is heroin, a conviction could result in the following additional penalties:

• Three years for heroin exceeding one kilogram.
• Five years if the weight of the heroin is four kilograms or more.
• Up to ten years in jail for ten kilograms or more.
• Fifteen years for twenty kilograms of the drug.
• Twenty years for forty or more kilograms.

See Sentencing Enhancements for Kilogram Quantities of Controlled Substance (California Health and Safety Code section 11370.4: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11370-4.html

For defendants with a prior felony conviction, the court imposes a three-year additional sentence for each prior offense. 

Drug Diversion for H.S.C. § 11351

Under California Penal Code section 1000: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=1000) or Proposition 36, California law allows defendants who face charges for non-violent drug offenses to serve their sentence out of jail. Instead of jail, the judge orders that you serve your sentence in a drug treatment program (often on an outpatient basis).

The most significant benefit of entering a diversion program is that the prosecution drops all your drug charges upon successful completion.

It is essential to understand that drug diversion is not an option for all the defendants facing H.S.C. § 11351 charges. One of the restrictions associated with drug diversion is that it is not available for individuals facing possession for sale charges. Therefore, your attorney needs to fight to have your charges reduced to simple possession of drugs under H.S.C. § 11350 (California Health and Safety Code section 11350: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11350.html).

See Proposition 36 Drug Treatment Diversion Program: https://lao.ca.gov/ballot/2000/36_11_2000.html See also California “Drug Court”: https://www.courts.ca.gov/5979.htm

Judicial Diversion (Court Initiated Diversion) (California Penal Code section 1001.95: https://codes.findlaw.com/ca/penal-code/pen-sect-1001-51.html).

Legal Defenses Against H.S.C.§ 11351 Charges

The consequences of a conviction for drug possession for sale could significantly impact your life even after you finish serving your jail or prison time (if any). The following are some fruitful defenses you can bring against your charges:

Lack of Possession or Control 

The first element that must be proved beyond a reasonable doubt before a jury can convict you for possessing a controlled substance for sale is that you owned the drugs. Possession, in this case, is either actual, constructive, or joint. Often, this defense is applicable in cases where the drug was not found on your person. If your attorney can prove that you did not have control over the alleged substances, you can avoid a conviction under this statute.

Temporary Drug Possession or Control

You can argue temporary possession as your defense for possession or sale of a drug if you had legitimate intentions when possessing the drug. However, you must prove that:

• You held the drugs for transfer to a law enforcement agency.

See Los Angeles Police Department (LAPD) (https://www.lapdonline.org)

Los Angeles County Sheriff’s Department (LASD) (https://lasd.org)

California Highway Patrol (CHP) (https://www.chp.ca.gov).

• Your intentions behind the possession of the drugs were for disposal or preventing unlawful possession by another person.
• You did not obstruct law enforcement officers from recovering the substance.

See CALCRIM Number 2305 (“Defense: Momentary Possession of Controlled Substance”): https://www.justia.com/criminal/docs/calcrim/2300/2305/