CA HSC 11351

Drug Possession for Sale

Possession of Drugs with Intent to Sell

One of the more serious drug related crimes is drug possession for sale, California Health and Safety Code 11351[1].  Unlike HS 11350  which punishes people for possessing a controlled substance for personal use, HS 11351 punishes people for possessing a large quantity of controlled substances with the intent to sell.  A controlled substance is defined as any drug that is manufactured and regulated by the government.  Common drugs that are considered controlled substances are, but not limited to:

  • Opiates
  • Heroin
  • Cocaine
  • Peyote
  • Some hallucinogenic drugs
  • Codeine
  • Vicodin

In order to be convicted of drug possession for sale the prosecutor must prove each element of the crime beyond a reasonable doubt.  The elements of drug possession for sale are:

  1. That you knowingly possessed the drug
  2. That you knew the substance was a drug
  3. That you possessed enough of the drug to use it, or to sell it
  4. That you possessed the drug with the intent to sell it, or purchased the drug with the intent to resell it

If the prosecutor cannot prove each of the elements mentioned above beyond a reasonable doubt then you will not be convicted of HS 11351.

Drug possession for sale is a felony and is heavily punished in California.  If the prosecutor is successful in your conviction then you will face the following:

  • Formal probation and up to one year in county jail, or
  • Up to four years in state prison
  • Fines up to $20,000
  • Possible deportation

There are some factors that will increase your sentencing:

If are found guilty of possessing cocaine base[2] for sale then you will face up to 5 years in state prison and fines up to $20,000.

If you are found guilty of possessing heroin, cocaine base or cocaine then you will face an additional:

  • 3-years if the substance exceeded 1kg
  • 5-years if the substance exceeded 10kg
  • 15-years if the substance exceeded 20kg
  • 20-years if the substance exceeded 40kg
  • 25-years if the substance exceeded 80kg
  • In addition to the sentencing mentioned above, you will also face fines up to $80,000

If you are found guilty of HS 11351 and you have a prior drug related conviction, other than a HS 11350 conviction then you will face an additional 3-year prison term for each and every prior conviction.  In other words, if you you were previously convicted of HS 11351 twice before then you will serve and additional 6-years after your initial prison sentence.

Unfortunately, a drug possession for sale conviction does not make you eligible for drug diversion.  In accordance to Proposition 36[2], PC 1000[3] and California drug court, jail and prison sentences can be replaced with drug diversion.  If you are convicted of the lesser charge of HS 11350 instead of HS 11351 then you might be eligible for the program.

Prosecuting a HS 11351 Charge

As previously mentioned, in order to be convicted of drug possession for sale the prosecutor must prove the following elements of the crime beyond a reasonable doubt:

  1. That you knowingly possessed the drug
  2. That you knew the substance was a drug
  3. That you possessed enough of the drug to use it, or to sell it
  4. That you possessed the drug with the intent to sell it, or purchased the drug with the intent to resell it

It’s imperative to have a thorough understanding of the language of the law in order to understand what the prosecutor has to prove.  For instance, there are three varying degrees of possession all of which are illegal: actual possession, constructive possession, and joint possession.

Actual possession refers to when you are physically carrying the drug, either in your hand, pocket or something that is attached to you, like a backpack.

Constructive possession refers to when drugs are found in something that you control, like your home or apartment.

Joint possession refers to when you and at least one other person are in possession of the drug or when a drug is found in a shared area, like the living room of a home.

Another important term that is common in the elements of the crimes is knowledge.  The crime requires that you knowingly had possession of the drug and that you knew the drug was indeed a drug.  It is not required that you know the specifics of the drug only that you know that the drug was illegal in nature.

In order to be convicted of HS 11351 the prosecutor has to prove that you intended to sell the drug.  This is the most crucial element of the crime for a successful HS 11351 conviction.  If the prosecutor cannot prove that you intended to sell the drugs then it’s likely that you will still be charged with HS 11350, possession of a controlled substance.

The key factors that the prosecutor will investigate when building their case are:

  • How much of the controlled substance you had
  • How was the drug packaged
  • The presence of drug paraphernalia[4]

It is easy to understand that if there is a large quantity of narcotics then it’s likely that they are not for individual use.  However, if is the prosecutor’s job to prove to the court beyond a reasonable doubt that you didn’t just buy a lot of drugs for yourself.

If the arresting officers find the drugs individually packaged in baggies, balloons, etc. then they will likely arrest you for drug possession for sale because it is unlikely that you would have your drugs for personal use individually wrapped.

If the arresting officers find drug paraphernalia like scales, empty bags or specific tools then they will likely charge you with drug possession for sale because in the eyes of the law there is no reason to possess these devices in connection with drugs unless you were selling the drugs.  The prosecutor must then take the evidence that the officer’s found and present it to the jury in order to prove that you were using the paraphernalia for drug sale.

Defending a Drug Possession for SaleCharge

There are several common legal defense strategies that a skilled criminal defense attorney will explore to see if any pertain to your case.  The first is to make sure that any evidence was acquired lawfully and not through an illegal search and seizure.  This is arguably the easiest way to have a case dismissed for you and your attorney.  If your attorney can prove that police misconduct occurred either while obtaining evidence or during the arrest then the case will be dismissed and the charges will be dropped.

Another legal defense is to prove that you never intended to sell the drugs.  If you were arrested for drug possession to sell but there is minimal evidence against you, for example, maybe there was not any drug paraphernalia at the time of the arrest, then it’s difficult for the prosecutor to convict you for HS 11351.  With that being said, you still might be convicted for HS 11350 but that is a much lesser charge and can successfully be dismissed.

Another defense is lack of knowledge, either of the presence of the drug or that the drug was illegal.  If for example, you borrowed your friend’s car and were unaware of the drugs within it then you cannot be convicted of drug possession for sale.  One of the required elements of the crime is that you were knowingly in possession of the drugs.

These are only the most common legal defenses and might not pertain to your case.  However, each case is different and requires it’s own approach to prove your innocence with the help of a skilled criminal defense attorney.  Seppi Esfandi is a Certified Specialist in Criminal Law and has over 13 years of experiencing representing people for a myriad of charges, including drug possession to sell.

 

References

[1] 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.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=hsc&group=11001-12000&file=11350-11356.5

[2] Congress used the scientific term “cocaine base,” which describes forms of cocaine that react with acid to form salts…Cocaine can take many forms, some of which are forms of cocaine base, such as coca paste and crack. Other forms of cocaine, however, such as powder cocaine, are not bases. Powder cocaine and cocaine base have distinct chemical formulae, melting points, solubility levels, and molecular weights.

http://lawreview.law.ucdavis.edu/issues/40/2/comment/DavisVol40No2_Cary.pdf

[3] California Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, was an initiative statute that permanently changed state law to allow qualifying defendants convicted of non-violent drug possession offenses to receive a probationary sentencein lieu of incarceration. As a condition of probation defendants are required to participate in and complete a licensed and/or certified community drug treatment program. If the defendant fails to complete this program or violates any other term or condition of their probation, then probation can be revoked and the defendant may be required to serve an additional sentence which may include incarceration.

http://en.wikipedia.org/wiki/California_Proposition_36_(2000)

[4] Drug paraphernalia includes, but is not limited to, all of the following:

(1) Kits intended for use or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived. (2) Kits intended for use or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances. (3) Isomerization devices intended for use or designed for use in increasing the potency of any species of plant which is a controlled substance. (4) Testing equipment intended for use or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances. (5) Scales and balances intended for use or designed for use in weighing or measuring controlled substances. (6) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose, intended for use or designed for use in cutting controlled substances. (7) Separation gins and sifters intended for use or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana. (8) Blenders, bowls, containers, spoons, and mixing devices intended for use or designed for use in compounding controlled substances. (9) Capsules, balloons, envelopes, and other containers intended for use or designed for use in packaging small quantities of controlled substances. (10) Containers and other objects intended for use or designed for use in storing or concealing controlled substances. (11) Hypodermic syringes, needles, and other objects intended for use or designed for use in parenterally injecting controlled substances into the human body. (12) Objects intended for use or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as the following:

(A) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls. (B) Water pipes. (C) Carburetion tubes and devices. (D) Smoking and carburetion masks. (E) Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette that has become too small or too short to be held in the hand. (F) Miniature cocaine spoons, and cocaine vials. (G) Chamber pipes. (H) Carburetor pipes. (I) Electric pipes. (J) Air-driven pipes. (K) Chillums. (L) Bongs. (M) Ice pipes or chillers.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=hsc&group=11001-12000&file=11364-11376.5

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