Possession of a Controlled Substance with Intent to Sell |HS 11351

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Under California Health and Safety Code 11351, every person who possesses for sale or purchases for purposes of sale any controlled substance shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years. HS 11351 is a much more serious offense than a simple possession under Health and Safety Code 11350.  In order to sentence a person for a possession of a controlled substance with intent to sell, the prosecution will need to prove

 

posession-sale

1. unlawful possession of controlled substance,

2. knowledge of its presence,

3. knowledge of the substance’s nature or character as a controlled substance, and

4. the controlled substance was in a usable amount, and

5. intent to sell

Note, the sale of narcotics is not a necessary element of the crime. A suspect may still be convicted of this crime even if there were not any sales or transactions of narcotics. The prosecutors will focus on several factors in determining whether to charge a suspect with a simple possession of narcotics or possession with intent to sell.

Factors:

  • The quantity of the narcotics matter. The prosecutor has an easier time convincing a jury of intent to sell if the suspect was found with large amount of narcotics.
  • The nature of the packaging. If the suspect has large amounts of narcotics that is packaged in individual doses (baggies), then the prosecutor will most likely believe that the suspect intended to sell the drugs.
  • How much cash was on the suspect? The amount of money and the denomination of the bills matter. If the suspect has $1000 in $20 bills, it might show that he/she sold the drugs to individuals.
  • Was drug paraphernalia found on the person? Although California punishes people for even a simple possession of drug paraphernalia, here it might help a suspect. For example, the fact that a suspect has a pipe to smoke marijuana, might convince a jury that he/she was not going to sell his marijuana because he planned on consuming it himself/herself.

Defenses. An experienced attorney may raise several defenses on your behalf. There could have been a lack of control or possession, momentary possession, lack of knowledge, valid prescription, or failure to follow police procedures.

Can you be charged with H&S 11350 if you did not know of the drugs presence? No, the second element (see above) requires you to have knowledge of the drugs presence. For example, you borrow your friend’s car to drive to work. You are stopped for a simple traffic violation. While being cited, the police officer asks you for a permission to search the car’s trunk. You consent to the search because you believe the trunk is empty. You did not put anything in the trunk and never even opened it. The police finds marijuana stashed in the trunk. You will not be convicted of this crime because the prosecution will be unable to prove the knowledge element.

Can I be convicted of possession of a controlled substance with intent to sell for prescription medication? Yes. The statute encompasses both legal and illegal drugs. You can be convicted, if you are possessing (with intent to sell) a legal prescription drug without a valid prescription from a licensed doctor.

If you have been charged with a crime, please call us at 619-357-6677

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