11351. 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.
Potential Sentence: As noted in the statute itself, this crime can potentially result in a prison sentence of two to four years. Additionally, under California Health and Safety Code 11372, the court can impose a fine of up to $20,000 for each offense.
To obtain a conviction on a count of Health and Safety Code 11351, the prosecution must prove the following elements beyond a reasonable doubt:
- That the defendant unlawfully possessed the drug
- The defendant had knowledge that the illegal substance was present
- The defendant knew that the substance was illegal in nature
- That the defendant intended to sell the substance while he possessed it.
- What type of controlled substance the defendant had.
- There was a sufficient amount of the controlled substance to be used for illegal drug consumption.
Explanation of the Law:
- First Element: A defendant can be in possession of an illegal substancethrough two different legal theories. First, a defendant may be found to have been in “actual” possession of the drug, which means that he or she actually had the illegal substance on their person, i.e. in a coat pocket. Second, a defendant may be in “constructive” possession of a drug which means that although the substance was not on his/her person, it was in a place where it was under the control of the defendant, i.e. in the glove box of his car. The defendant is still said to be in possession of a drug in a constructive possession situation because he/she maintains the right to control what happens with the drug. Additionally, more than two people can be in possession of an illegal substance concurrently, i.e. where a large quantity of drugs are found in an apartment shared by various people.
- Second Element: “Knowledge” that you possessed the illegal substance means that the defendant knew the drugs existed in an area within his or her control.
- Third Element: “Knowledge” means that the defendant was aware of the substance's character as a controlled substance. People v. Horn (1960) 187 Cal.App.2d 68
- Fourth Element: The intent to “sell” can mean that the defendant planned on selling the drugs himself to a third party or was determined to give the drugs to someone else for the purpose of selling them. A “sale” can be for cash or for other items or services of value. People v. Lazenby 6 Cal.App.4th 1842. Whether an intent to sell exists depends on the specific factual circumstances of a given case.
- For example, a defendant (not himself under the influence of the alleged controlled substance at the time of arrest) who drove around in a car loaded with a large quantity of drugs, and carrying a large wad of cash would likely indicate to the prosecution that an intention to sell existed.
- In contrast, a person who had a large storage of drugs and various pieces of drug paraphernalia in his house, and was under the influence of that drug when officers came upon the scene, may indicate that the drugs were solely for personal use. Drug possession for personal use is a lesser offense under California Health and Safety Code 11350.
- Fifth Element: Under this element, the prosecution will need to show that the substance found on the defendant or in his/her control has the chemical properties consistent with a known controlled substance.
- Element Six: A “usable amount” is something more than mere debris or traces of an illegal substance. For an amount to be usable, it must be enough to use as a drug even if it does not produce a narcotic effect on the user. An example is where a defendant is found with a very small amount of cocaine which is enough to snort even if it will not produce a strong “high” feeling.
A defense to H&S 11351 can be any fact that negates one of the required elements listed above. This can include showing that there was no intent to sell the drugs (i.e. the defendant purchased a large quantity for personal use), that the defendant never actually took possession of the substance, or that the defendant had no true knowledge that the substance was present in an area under his or her control. Apart from attacking the elements of the offense,defense counsel can attempt to show that the police obtained the evidence through an unreasonable search and seizure which is prohibited by the 4thAmendment.
In some cases, the possession for drugs for sale can be punished more severely if certain types of controlled substances are involved. Under California Health and Safety Code 11351.5, offenses involving base cocaine are subject to three to five years in prison and a fine at a maximum of $20,000 pursuant to California Health and Safety Code 11372.
Furthermore, under California Health and Safety Code 11370.4, substances with heroin, cocaine base, cocaine, methamphetamine, amphetamine or phencyclidine” can receive an additional term of imprisonment depending on the weight of the substance.