It is a grave offense under California law to possess unlawful controlled substances with the intent to sell them. The severity of charges for this crime remains strict, even if Prop. 47 has lowered many drug possession for personal use offenses and misdemeanors. Possession of a controlled substance with intent to sell is a felony crime under Health and Safety Code Section 11351. You need an experienced drug defense attorney if you are accused of possessing drugs with intent to sell them.

Understanding Health And Safety Code 11351

According to HS 11351, possession of drugs with intent to sell is one of the most severe drug-related crimes. HSC 11350 only punishes individuals for possessing a controlled drug for personal use, but HSC 11351 punishes individuals for possessing a large quantity of controlled substances with intent to sell. A controlled substance is any drug whose production and distribution is regulated by the government. The following are some of the drugs that are regarded as controlled substances:

  • Vicodin
  • Codeine
  • Peyote
  • Meth
  • Cocaine
  • Heroin
  • Opiates, and
  • Some hallucinogenic drugs

The Elements

If the prosecutor accuses you of violating HSC 11351, the law requires that the prosecutor prove the following elements beyond a reasonable doubt:

  • You deliberately possessed a controlled substance
  • You were aware that what you possessed was a controlled substance
  • You possessed a substantial amount of the substance
  • You possessed the substance with the intent to sell or buy the substance with the intent to resell it

You will not be convicted of HSC 11351 drug possession for sale if the prosecutor fails to prove each of the above elements.

Penalties for Violating HSC 11351

A violation of HSC 11351 is usually charged as a felony and is heavily punished. If you are found guilty of violating this law, you could face the following penalties:

  • A fine that does not exceed $20,000
  • A jail term that does not exceed four years in a state prison
  • Possible deportation
  • Formal probation and up to one year in a county jail

Your sentence could also be enhanced under certain conditions. For example, you could face up to five years in state prison and a fine of up to $20,000 if you are guilty of possessing a cocaine base for sale. You could also face the following sentence enhancements if you are found guilty of possessing heroin, a cocaine base, or cocaine:

  • You can face a three-year extra jail term if the substance exceeds 1 kg
  • You can face a five-year extra jail term if the drug exceeds 10 kg
  • You can face a 15-year extra jail term if the drug exceeds 20 kg
  • You can face a 20-year extra jail term if the substance exceeds 40 kg
  • You can face a 25-year extra jail term if the drug exceeds 80 kg
  • You will also face a fine that does not exceed $80,000 in addition to the above sentencing.

If you are convicted under HSC 11351 and you have a previous conviction associated with drugs other than HSC 11350, you could face three years of additional jail time for each prior charge. If you were charged twice under 11351, you would face six years of additional jail time after your original prison sentence.

Drug Diversion Program

You could qualify for a drug diversion program under PC 1000, Prop. 36, and California drug courts. You can only qualify for this program if you are convicted of nonviolent possession of drug offenses. This can allow you to complete your sentence in a rehabilitation program instead of going to jail or prison. The charges against you could be dropped if you complete the drug diversion program. You must only complete a few online classes under PC 1000 and avoid committing the offense for one year.

Sadly, drug diversion programs are only available for certain crimes, and they have several disadvantages. One of the disadvantages is that it does not extend to crimes involving drug sales. This is why you need an attorney to negotiate and have your charges reduced to possession for personal use instead of possession for sale. As an outcome, the judge could sentence you under HSC 11350 even if the prosecutor accuses you of violating HSC 11351. You could qualify to take part in a drug diversion program if the judge convicts you under HSC 11350.

The judge could charge you under HSC 11350 even if the prosecutor sustains the drug sale charges and fails to prove intent to sell the drugs beyond a reasonable doubt. You could also face charges under HSC 11350 if the prosecutor cannot provide substantial evidence at the preliminary hearing. This could make a big difference in the results of your case because the penalties under 11350 are less severe.

Probationary Terms

The judge could impose certain probation conditions related to the crime you have been convicted of. Some of the potential probationary conditions include:

  • Complete a drug or alcohol program
  • Submit to random drug tests
  • Undertake community service
  • Contact the probation officer as often as the probation conditions require
  • Avoid committing any other crime

The court could charge and sentence you if you violate the above conditions. In this case, you should ask your attorney to provide a clear list of probation requirements since the probation officer will monitor your progress.

Defenses For HSC 11351 Charges

You need a skilled drug defense attorney to defend you if you are accused of a serious crime like a felony charge for possession of a controlled substance with the intent to sell. Your attorney will analyze your case, gather evidence, and create the best defense strategy. Some of the defenses that your attorney can use include:

Police Entrapment

Entrapment is common in drug-related offenses. Entrapment happens when law enforcement lures you into committing an offense. This defense, however, can only be admissible in court if you prove that you would not have committed the crime outside the officer's coercion.

No Knowledge

Knowledge is an essential component in possession to sell charges. The prosecutor must provide sufficient evidence that you were aware that the drug was a regulated substance and that it was in your possession. For example, you cannot be guilty under HSC 11351 if your partner is dealing with drugs and he/she stores them in your shared house, but you are not aware of their presence. Similarly, you cannot be guilty under HSC 11351 if you were not aware of the drug as being a regulated substance. You could not be charged under this law if you mistook cocaine for sugar. However, you could face charges if you believe one controlled substance to be another, like believing that cocaine is PCP.

You Were Not In Possession Or Control

The prosecutor must prove that you had control over or had the drug for you to face possession with intent to sell charges. Possession could be ''actual'' in which the substance was found on your immediate person or was in an area over which you have control. Your attorney can argue that you did not have the required possession and control over the drug to avoid a guilty verdict against you.

Having any access to the drug or being near the substance when it is discovered is not sufficient evidence for you to face the charges under HSC 11351. For example, you could request a lift in your friend's vehicle to go to a bar. The law enforcement officer later stops you, and upon searching the car, they discover heroin hidden in the glove compartment of the vehicle. In this case, you are just near the drug. This is insufficient to accuse you of this offense unless the prosecutor proves that you had direct control of the drug.

Temporary Possession

Temporary possession of a regulated substance for a legitimate purpose could be a valid defense against HSC 11351 charges. However, this defense could be valid if you prove that:

  • You did not mean to hinder the police from acquiring the controlled drug or substance
  • You had the controlled substance in your possession with the intent to discard, abandon, or destroy it
  • You only possessed the drug for a short period

You must prove all of the above components to assert this claim. You must show that every one of the above elements is true. It is a lighter burden of proof than establishing a fact beyond a reasonable doubt.

The Police Failed To Follow Legal Protocols

The Fourth Amendment of the U.S. Constitution protects citizens against unjustified police searches and seizures. The court has enacted a series of decisions to safeguard this freedom. The police must follow particular processes and formalities when executing arrests or traffic inspections. These requirements could include:

  • Having the right ''probable cause'' to initiate an arrest — Only examine your car when there is sufficient evidence that your vehicle could have contraband related to the offense for which you were detained
  • Having reasonable suspicion before arresting you — Your attorney could petition the court to dismiss your charges if the police secured the evidence illegally by violating your Fourth Amendment rights. Your attorney could do this by filing a motion to suppress the evidence according to Penal Code 1538.5.

No Intent to Sell

The prosecutor must prove that you had the intent to sell the drug for you to face charges under HSC 11351. The prosecutor can rely on circumstantial evidence to show that you possessed the drug with the intent to sell it if you refuse to confess. Your attorney can claim that you did not plan to sell the drug but that you possessed it for personal use.

If the prosecutor fails to prove that you planned to sell the drug, your charges could be reduced to mere possession or dismissed. The following are some circumstantial evidence that the prosecutor could use to prove your intent to sell the drug and how your attorney could challenge them:

  • Many people come to your house or residence but stay only for a short period — Many people coming into your home does not mean they come to purchase controlled substances. You could have friends, relatives, and other acquaintances that come for different reasons other than purchasing controlled substances. Your relative could have a controlled substance after leaving your residence, but it is not sufficient to prove that he/she got it from your house. Strong circumstantial evidence associating you with the sale of a controlled substance would require the prosecutor to show the existence of certain factors.
  • Small quantities of the drug were divided and kept in different packages — Dividing the substance into small portions and putting it in smaller bags does not mean you planned to sell it to other people. However, the prosecutor can claim there is strong circumstantial evidence of the intent to sell if you have a large number of baggies, each containing small amounts of the drug.
  • You had large sums of money in small denominations when the drug was found — Having a small denomination of money does not mean you sold or intended to sell a controlled substance. You could have acquired the money from different sources, like your workplace or business. It is common to have small bills, and most retail companies do not handle bills that exceed $20.
  • The amount of drug found in your possession exceeded that which would be expected for personal use. Having large amounts of a controlled substance does not mean you intend to sell it to someone else. You could have had large quantities because purchasing bulk is less expensive. You could have also intended to make a single purchase so it would last longer for personal use.

Find a Criminal Defense Attorney Near Me

You should seek the services of a skilled attorney if you are facing charges for possession of a controlled substance with intent to sell. Depending on the circumstances, your attorney will guide you through the charges. An attorney will also help you develop applicable defenses in your case. At the Foos Gavin Law Firm, our attorneys have decades of experience and can help you obtain a favorable judgment in Sacramento, CA. Contact us at 916-779-3500 to speak to one of our attorneys.