In California, drug possession for sale is a crime that happens when a person actually, jointly or constructively possesses controlled substances (illegal drugs) and intends to sell them to someone else. Possession for sale is regarded as a more serious offense than simply possessing controlled substances for personal use. Charges for drug possession for sale could result in up to several years of custody depending upon the facts of the case, including the accused’s prior criminal history. If your attorney can demonstrate to the DA (District Attorney) or the Judge that you merely had the drugs for individual use and did not intend to sell, the penalties could be reduced, and you could be eligible to take part in a drug diversion program like PC 1000, Proposition 36, or informal diversion. These options all result in a full dismissal if the Defendant successfully completes the terms of diversion.

If you are facing drug possession, sales charges or other drug crime offenses in Pasadena or Los Angeles, contact The Law Office of Ann Gottesman. Ann will analyze the facts of your case and help build a strong defense to fight the charges leveled against you.

Overview of Possession For Sale Of A Controlled Substance

Possession of a controlled substance with the intent to sell is a serious crime in California. You can face hefty penalties if the prosecutor can demonstrate that you possessed controlled substances with the intention of selling them.

The California Health and Safety Code is designed to safeguard residents from the harmful consequences of a wide range of restricted substances. In addition, the California Health and Safety Code Section 11351 criminalizes the possession of restricted substances for sale.

Section 11351 of the Health and Safety Code extends to all regulated substances, including illicit narcotics as well as prescribed medicines. A large number of controlled drugs are also found on the government-controlled substance registry.

This implies that if you are charged with possession to sell a controlled substance, you risk facing federal charges along with state charges depending upon how much of the contraband is involved and whether state lines were crossed.

If you are found guilty for possession with the intent to sell a controlled substance you could be sentenced to between two and five years in custody and receive penalties of up to $10,000. A conviction could damage your ability to acquire a job or get government benefits, on top of the already incurred penalties and jail term.

Prosecution of Possession of a Controlled Substance with Intent to Sell Under HS 11351

The Health and Safety Code 11351 in California governs the possession of a controlled substance with the intent to sell. The prosecutors must establish the following to convict an offender for this crime:

  • You possessed a controlled substance

  • You were aware of its presence

  • You were aware of the substance's classification as a controlled drug or substance

  • You meant to sell or resell the restricted substance while you possessed it

  • The controlled drug was in a quantity that could be used

What Is the Definition of 'Possession?'

The prosecutor must demonstrate that you possessed a controlled substance to prosecute you under Health and Safety Code 11350 in California. Actual possession implies that you have direct and immediate authority over the substance. This usually occurs when the controlled substance is discovered on your person or within your immediate control such as in your bag or purse.

However, you don't have to physically hold or come into direct contact with something to possess it. If you already have direct authority over the substance or split it with someone else, it is sufficient to be referred to as possession.

Constructive possession is another term for this form of possession. If the narcotics were discovered in a location in which you have control, you could be charged with constructive possession of that controlled substance. In this case, if the substance is discovered in your vehicle or house, you may be charged with this constructive possession.

According to the United States Controlled Substances Act, any chemical or substance whose production, ownership, or consumption is controlled by the federal government is considered a controlled substance. The United States Controlled Substances Act (USCSA) is a federal act that empowers the government to control almost any type of drug that can travel over state lines.

Below are several examples of medications that have been labeled as controlled substances by the law:

  • Cocaine

  • Heroin

  • Opium

  • Ecstasy

  • Peyote

  • Hallucinogens (LSD, peyote, mushrooms)

  • Prescription pain relievers (codeine, morphine, hydrocodone)

  • GHB

The above are only a handful of examples of controlled substances controlled by the USCSA. The prosecutors in your case can use laboratory tests or expert testimony to ascertain the chemical composition of the substance that was in your possession to prove that the drug is a controlled substance.

It's worth noting that possession of methamphetamine with the intent to sell as defined under California Penal Code 11377 as well as the possession of marijuana with the intent to sell as described under California Penal Code 11359, are two independent offenses that aren't covered by California PC 11351.


The prosecutor needs to prove that you were aware of the character or nature of the substance as a restricted substance to legally prosecute you for possessing a controlled substance with the intent to sell pursuant to California Health and Safety Code section 11351. To put it in another way, the prosecutor must show that you were aware that the substance you had in your possession was a controlled substance or illegal substance. Nevertheless, the prosecutor does not have to show that you were aware of the specific substance you had.

The prosecutors must additionally establish that you were fully cognizant of your possession of the substance. You can't be charged with this crime if you have no awareness of the existence of the substance on your immediate person or even in a location that you have control over.

For example, if a friend left his stash of cocaine in your car under the backseat and you had no idea it was there, you would not be guilty of possessing the cocaine.

Usable Amount

To be termed as a usable amount, the substance has to be sufficient to be utilized as a regulated substance by another person. Useless residues or debris aren't regarded as "usable amounts" since they are unlikely to be exploited in the way banned by the Health and Safety Code. But, a very tiny quantity could still be deemed usable, and also the amount does not have to be sufficient, in terms of both quantity and potency, to impact your temperament when used. For example, the DA does not have to prove it would actually make a particular person high.

Intent To Sell

To prosecute you for possession for sale under the Health and Safety Code 11351, the prosecutors must show that you possessed the intention of selling the substances.

In this regard, selling refers to the act of distributing a regulated substance for cash, services, or other things of value. The prosecutor must present evidence that you planned to sell (or resell) the restricted substance instead of merely possessing it for individual use.

The prosecutors can use the following methods to demonstrate that you meant to sell the substance:

  • The quantity of the substance that was discovered in your possession was greater than that which would be expected for personal use

  • You had large sums of money that were in small denominations at the time the controlled drug was discovered

  • Smaller quantities of the controlled substance were divided and put in individual packages or baggies

  • The area where the controlled substance was discovered is often used to sell drugs

  • You had scales or some other weighing equipment with you

  • Many persons pass by your house or apartment, stopping for just a few minutes or so and leaving

Keep in mind, all of these factors could have explanations that would point to personal use instead of sales. For example, addicts oftentimes purchase a large quantity of their drug to avoid the inconvenience of buying drugs multiple times over a short period of time. A user may buy an entire month supply of the drug at once. Also, when purchasing a controlled substance, many addicts want to ensure they are getting the correct amount of drug and will bring their scale to confirm they are getting what they paid for.

Possible Defenses to Possession For Sale Of A Controlled Substance Charge Under HS 11351

When you are charged with a serious offense in California, such as a felony charge for possession of a controlled substance with the intent to sell, you need a skilled drug defense attorney who will aggressively defend your rights in court. Attorney Ann Gottesman makes it a priority to analyze your case, obtain all the evidence and develop the best possible defense strategy.

Failure of a Law Enforcement Officer to Follow Legal Protocols

The Fourth Amendment to the U.S. Constitution guarantees your freedom to be protected from unjustified police searches and seizures. To safeguard this freedom, the Supreme Court has enacted a series of decisions mandating police officers to follow particular formalities and processes when executing traffic inspections or arrests.

These requirements include the demand that officers have reasonable suspicion prior to detaining the accused, having the appropriate "probable cause" to initiate an arrest, and only examining the accused’s vehicle when there is sufficient evidence that the vehicle may have contraband related to the crime for which the accused was detained.

If the law enforcement officers obtained evidence unlawfully by violating your 4 th Amendment protections, your defense counsel can petition the court to dismiss that evidence through a Motion to Suppress evidence pursuant to Penal Code Section 1538.5.

Temporary Possession

Under the Health and Safety Code section 11351, temporary possession of a regulated substance for a legitimate purpose could be a legal defense for charges of possession of a controlled substance with intent to sell. To use this argument, you must show that:

  • You were only in the possession of the controlled substance for a brief duration

  • You had the regulated substance in your possession with the intent to destroy, abandon, or discard

  • You didn't mean to hinder law enforcement personnel to acquire the controlled substance or drug

You need to demonstrate every one of these components to succeed in asserting this argument. This implies you must demonstrate that every one of the three mentioned items is true. It is a lower burden of proof than establishing something beyond a reasonable doubt.

You were not in its Possession or Control

The prosecutors must demonstrate that you were in the possession of, or had control over, the substance to prosecute you of possession with intent to distribute. Possession might be "actual," in which case the chemical or drug was discovered on your immediate person or was discovered in a location over which you have control. In an appropriate case, to avoid a guilty verdict against you, your attorney can argue that you didn't have the required possession and control over the substance.

It's vital to understand that simply having any access to the substances or being near them when they are discovered isn't enough to show possession. For instance, you decide to use your friend's car to go to the movies. As your friend is driving to the theater, traffic police pull you over for exceeding the speed limit. She agrees to a car search, and the officer discovers a huge zip-lock package with methamphetamine hidden in the car's glove compartment.

Even though you were in the car and could access the glove box at any particular time, your sheer being in the vicinity of the substance is insufficient to accuse you of this crime unless the prosecution can show that you had direct control over the substance's usage.

Lack Of Intent To Sell

To prosecute you of this crime, the prosecutor must show that you had the intent to distribute the controlled substance. The prosecutor will just have to resort to circumstantial proof to demonstrate that you possessed the substance with the intent of selling if you don't confess. Your lawyer could assert that you didn't plan to sell the substance and simply had it for individual use.

Your charges may be lowered to mere possession or withdrawn entirely if the prosecution can't establish that you planned to distribute the substances. Here are some illustrations of the forms of circumstantial proof used by the prosecution to demonstrate intent to distribute, as well as how your criminal defense attorney might counter it:

  • The quantity of the controlled substances discovered in your possession was greater than that which would be expected for individual use

Only because you had a large quantity of a controlled drug or substance on hand doesn't mean you planned on selling it to someone else. You may have had that amount because bulk buying is generally less expensive. Or maybe you intended to make a single purchase so it could last much longer for individual use.

  • You possessed large sums of money in small denominations when the controlled drug was discovered

The fact that you have money in small amounts does not mean you distributed or intended to distribute the controlled drug. This money might have originated from many different sources (such as your workplace), and the idea that it came in small bills is a regular occurrence, given that most retail companies don’t even handle bills exceeding $20.

  • Tiny quantities of the controlled substance were divided and kept in different packages or sachets

Splitting the drug into smaller portions and storing it in smaller packages or bags doesn't necessarily prove that you planned on selling it to others. It would not be practical for an individual user to constantly lug around a large amount of the drug when they can separate the amount into smaller quantities that are easier to travel with and not as legally dangerous to possess. However, if an accused is found with a large number of baggies, each of which contain small amounts of the drug, the prosecution will argue it is strong circumstantial evidence of the intent to sell.

  • Many people come to your property or house, but only stay for a brief moment

Simply because a large number of people come to your house doesn't prove in itself that these people are buying drugs or controlled substances there. Most of us have relatives, friends, and other acquaintances who come to our homes for purposes other than to buy narcotics. Even if one of your visitors is caught in the possession of a restricted substance after leaving your home, it does not prove he or she got it from you. Strong circumstantial evidence pointing to sales would require the District Attorney prove the existence of several factors.

Penalties for Possession for Sale

According to Health and Safety Code 11351, possession of a controlled substance with the intent of selling it is considered a felony in California. A conviction can result in the following penalties:

  • A sentence of 2, 3, or 4 years in county jail, and/or

  • A maximum fine of $20,000

These fines could be applied to every intended sale if the prosecutor can establish that you planned on engaging in multiple transactions. Being convicted under this code could subsequently lead to being deported if you are not a citizen.

Other Factors Might Affect Your Penalties

If you have been charged with possession of cocaine base for sale, you will face the following penalties:

  • A county jail sentence of 3, 4, or 5 years

  • A maximum fine of $20,000

Additionally, if you are found guilty of violating Health and Safety Code 11351 and the controlled substance was either heroin, cocaine, or a cocaine base, you will be subject to further penalties.

  • If the substance weighs more than one kilogram, you will be sentenced to three years in prison

  • If it weighs more than four kilograms, you'll be sentenced to five years in prison

  • If the controlled substance weighs more than 10 kilograms, it is subject to a ten-year sentence

  • If the substance weighs over 20 kilograms, you will be sentenced to fifteen years in prison

  • If the substance weighs over 40 kilograms, you will be given a twenty-year sentence

  • If the controlled substance weighs more than 80 kilograms, you will be sentenced to twenty-five years

And also if:

  • You've been found guilty of possessing controlled narcotics with the intent to sell, and

  • If you've been convicted of a felony for yet another drug crime violation that entails more than individual use

Each previous felony conviction may result in an extra three-year sentence

Drug Diversion Program

This is permissible under:

  • California drug court

  • Proposition 36

  • California Penal Code 1000 PC

This permits persons who have been charged with non-violent possession of drug crimes to complete their terms in rehabilitation programs rather than going to prison or jail. One of the most important advantages of drug diversion would be that when you successfully undergo the program, the charges against you will most certainly be removed. Under PC 1000 you may only need to complete a few online classes and stay out of trouble for a year to earn a full dismissal.

Unfortunately, drug diversion is only available for certain offenses and it has a couple of drawbacks.

One of the drawbacks is that it does not extend to offenses involving drug "sales." That's why it's so important for your lawyer to try to get the charge reduced to personal possession rather than possession for sale.

As an outcome, even though the prosecution prosecutes you with possession with intent to sell, the court of law could sentence you under the personal possession statute, Health and Safety Code 11350. If the court does so, you could be eligible to take part in a drug diversion program.

Even if a prosecutor proceeds with drug sale charges, if they fail to prove the intent to sell beyond a reasonable doubt or fail to present sufficient evidence at a preliminary hearing, a jury (or judge) can decide to convict the accused of the lesser included charge of HS section 11350, possession for personal use. Clearly this would make a huge difference in the outcome of the case since a conviction for possession of drugs with out the intent to sell is less serious and opens up the possibility of diversion, no jail and the chance for earning a full dismissal.

Court Options During Sentencing

If you have been convicted of possessing a controlled substance with the intent to sell, the judge has the authority to determine your sentencing based on the facts of the matter. The judge has the following alternatives:

  • The court has the power to convict you to two, three, or four years in a county jail

  • Put you under probation and send you to county jail for up to a year

  • Place you under probation without jail time, but require you to participate in community service, or a work release course, as well as attend drug treatment or substance addiction programs

  • Put you under formal probation then allocate you to a probation officer

Probationary Terms

The court can impose certain probation conditions that correspond to the offense with which you have been convicted once you are put on probation. Probationary conditions might include:

  • Do not break any laws (besides a traffic infraction)

  • Contact the probation officer as much as the probation conditions dictate

  • Undertake community service

  • Submit to random drug tests

  • Complete a drug or alcohol program

A judge can impose a variety of probationary terms, including the ones listed above. If you violate any of these rules, the court has the authority to find you in violation of probation and sentence you to custody time up to the maximum sentence. As a result, you'll want to make sure your attorney provides you a clear list of probation requirements, but your probation officer will be in charge of monitoring your progress.

Find a Criminal Defense Attorney Near Me: Call Attorney Ann Gottesman

Charges for possession for sale can be serious charges in California. If you have been arrested for Possession of a Controlled Substance with the intent to sell, you should hire a professional criminal defense lawyer to help you devise a strong defense strategy.

Attorney Ann Gottesman is familiar with the local Pasadena and Los Angeles courts as well as the prosecutors, District Attorneys and Judges in those courts. If you have been arrested for possession of a controlled substance with intent to sell, call Ann for a personalized discussion about your case. She cares about her clients and works hard to achieve the best possible results. Don’t be shy! You should not go through this alone. Call Ann at 626-710-4021.