If you have recently been arrested in Los Angeles or anywhere in Southern California on the charge of possession for sale of a controlled substance, you are not alone. First, you are not alone because these kinds of arrests are extremely common in the L.A. Area. And secondly, you are not alone because an experienced criminal defense lawyer from Leah Legal can come to your immediate aid.
Possession for sale is a more serious charge than simple possession, and it carries potentially severe and long-lasting penalties. Plus, a drug conviction on your record can make it difficult to hold down a good job and to continue to live out your life the way you want to.
At Leah Legal, we stand ready to answer you call 24/7/365 - contact us anytime by calling 818-484-1100, and we will give you a free legal consultation and begin building you a solid defense.
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How Is Possession for Sale Defined Under California Law?
Under California Health & Safety Code Section 11351, possession for sale of a narcotic of a controlled substance is made a felony crime.
This statute does not refer to the actual sale or distribution of illegal drugs but simply to the intention to sell or distribute such drugs, when you also have them in your immediate possession or under your control.
Any drug banned by the US Controlled Substances Act or otherwise regulated by it counts as a "controlled substance" for the purposes of HSC 11351. That means no only illegal drugs like cocaine or heroin, but also illegally possessed prescription drugs like codeine can count.
What Must the Prosecution Prove?
To gain a conviction on the charge of possession for sale (HSC 11351), the prosecutor must demonstrate all of the following elements of the crime to be true beyond all reasonable doubt:
- You illegally possessed or purchased a controlled substance.
- You were aware of the drug's presence and of its nature as a controlled substance.
- You possessed a "usable" amount of the drug, not mere traces.
- You had an intention to sell the drugs you possessed or purchased.
Note that "possess" as used of illegal drugs in California law, can mean actual, constructive, or joint possession. Actual possession means the drug was on your person. Constructive means it was not on you but was under your control or you had access to it. Joint possession just means that you were one of multiple people who jointly held actual and/or constructive possession over the drugs.
In order to prove a violation of HSC 11351, the prosecution must show you knew of the drug's presence and of its nature as a controlled substance. That means it can't just be that someone planted the drug on you, in your car, or in your apartment. And you had to know the drugs were illegal.
You don't have to have known the name of the drug, its chemical make up, or what effects it would likely have. As long as you knew it was an illegal drug, that satisfies the requirement.
Also, "useless traces" of a drug cannot get you convicted. But neither need there have been a large quantity - anything sufficient to use/sell and that would produce the drug's "normal" effects in any detectable degree, is a "usable" amount.
Finally, even if it is proved that you possessed a controlled substance, your intention to sell or distribute the drugs must be proved, or else it would be the lesser (misdemeanor) crime of simple possession instead of the felony crime of possession for sale.
How Do Prosecutors Try to Prove Intent to Sell?
The mere possession of a controlled substance (HSC 11350) is, as mentioned above, a significantly lesser offense with much more lenient penalties than HSC 11351, possession for sale.
Thus, if prosecutors prove everything else but can't prove the intent to sell, they can't get a conviction on HSC 11351. But how do prosecutors go about trying to establish intent to sell?
First, realize that intentions are often difficult to prove in court. Without a confession from the defendant that he/she intended to sell the drugs in question, it is based on circumstances or on testimony of others.
The prosecution will likely call in a narcotics expert who will give his/her opinion one whether the drugs were likely intended for personal use or for sale. This conclusion will be based on things like:
- A large quantity of drugs being present.
- The drugs being packaged in bags or other evenly divided, countable way that drug sellers typically use.
- The presence of drug paraphernalia, such as pipes, needles, scales, and other tools used to measure or separate drugs.
- Large quantities of cash, guns, and other items may also be used as evidence of drug sales or of the intent to sell.
However, if the defendant was found under the influence of the drug possessed, then this makes it less likely that he/she intended to sell them. They are then viewed as probably just for personal use - though, it's not impossible, of course, for a user to also intend to sell drugs.
Possible Penalties for Possession for Sale in California
A violation of HSC 11351, possession for sale of a controlled substance, is a felony crime in California. In some cases, it is punished by up to 12 months in county jail plus probation. Other times, you can get 2 to 4 years in jail. Either way, a fine of as much as $20,000 may also apply.
However, if it can be shown that the defendant intended to commit multiple acts of drug sales, then each intended sale counts as a separate offense - and the penalties multiply.
And any conviction for possession for sale can have serious immigration consequences, including possible deportation, for both legal and illegal aliens.
There are additional factors that can lead to an aggravated offense being charged. This will enhance the sentence beyond that of un-aggravated HSC 11351 convictions.
Possession for sale of cocaine-base can get you 3 to 5 years in jail, plus up to a $20,000 fine.
Possession for sale of cocaine, cocaine-base, or heroin can add 3 years of incarceration time if you possessed over a kg of the drug; 5 years for over 4 kg; 15 years for over 20 kg; 20 years for over 40 kg; and 25 years for over 80 kg. And fines in such high-volume cases can reach as high as $8 million.
Additionally, if you have a previous felony drug conviction, it could add 3 years to the jail term.
Common Defense Strategies
At Leah Legal, we have been winning possession for sale defense cases in Los Angeles and throughout Southern California for many years, and we know how to build you a solid defense that fits the details of your case.
And while there are many defense strategies we use, and not two defenses are exactly the same, here are a few of the most common types of defense we employ:
- Illegal Search/Seizure
If your constitutional rights were violated by a search without a warrant or that went beyond the limits of the warrant issued, we can get your case dismissed. Or, if police lacked probable cause for a traffic stop or a designated checkpoint was not set up in a legally compliant way, we can also win you a dismissal.
- Lack of Possession
This is really a group of defense strategies. It's anything we would also use to fight a simple possession charge. It could be the "drugs" were really flour or sugar or you reasonably thought them to be so. It could be the whole story was fabricated against you - there were no drugs or someone else is framing you. Or, it could be you didn't know of the drugs' presence or of their nature as a controlled substance. Any of these points being proved would win you a full acquittal.
- Lack of Intent to Sell
Sometimes, there may be no way to fight the evidence of drug possession, but we may well be able to defeat the element of "intent to sell," reducing the charge in effect to simple possession. That means a misdemeanor instead of a felony on your record and a much lighter sentence.
Drug Diversion Programs
Another key part of our defense strategy, in certain cases, at Leah Legal, is to get you qualified for a drug diversion program. If a dismissal or acquittal is not possible, drug diversion can prevent a permanent criminal record and get you into drug abuse education programs.
To qualify for Prop 36, PC 1000, or California Drug Court, drug diversion programs, it must have been a non-felony, non-violent crime. Thus, either the prosecution cannot prove intent to sell or they are willing to drop that part of the charge as part of a plea deal.
These programs allow you to meet a number of stipulations for a specified period of time, after entering a "guilty" plea. But then your sentence is not finalized and is held, as it were, "in limbo" while you complete the diversion program. If successfully completed, the charge can ultimately be dismissed. If not, however, you could be given the original sentence associated with that charge, including possible jail time.
It can be critical to qualify for enrollment in a drug diversion program, and at Leah Legal, we are skilled negotiators and know when and how to secure a favorable plea deal.
Oftentimes, a possession for sale charge will be charged along with other drug crime charges. Or, a similar charge may be charged instead of HSC 11351.
Here are some of the most important related offenses to be aware of:
- HSC 11352, Sale and Transport of a Controlled Substance.
This crime goes beyond just intending to sell illegal drugs and entails actually selling them. It is a felony, punishable by 3 to 5 years in jail. But the sentence can rise to 3 to 9 years if drugs were moved over more than two county lines.
- HSC 11359, Possession of Marijuana For Sale.
It is a felony in California to possess marijuana with the intent to sell it (without a license). The penalty is from 16 months to 3 years in jail, plus a fine of up to $10,000.
- Methamphetamine Crimes
There are special sections in the California Health & Safety Code (11377, 11378, and 11379) that address the possession, sale, or transport of meth. Certain non-meth drugs like GHB, PCP, and particular anabolic steriods are also dealt with in these statutes. The penalties, in general, tend to be less severe than for possession/intent to sell/actual sale of other drugs.
- HSC 11363, Running a "Drug House."
If one is found to not only have possessed drugs and intended to sell them, but also to have opened/maintained a drug house, from which to continue drug production and sales, he or she can additionally be charged under HSC 11363.
This crime can be either misdemeanor or a felony, depending on the details of the case. As a felony, it is punishable by from 16 months to 3 years in state prison.
Contact Us Today for Immediate Assistance!
At Leah Legal, we have the deep-seated legal expertise and the never-give-up tenacity to fight for you both in and out of court and win your possession for sale defense case.
We have a long track record of winning the best possible outcomes to all manner of California drug crime cases. We know how to win dismissals pre-trial, win acquittals through strong argumentation and solid evidence in court, and when/how to fight for a reduced charge or sentence as part of a favorable plea deal.
Contact Leah Legal anytime 24/7 for a free, no-obligation consultation on the details of your drug crime defense case. Call us today at 818-484-1100, and we can immediately begin assisting you in building a solid defense!