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California Health and Safety Code § [Section] 11351 – Possession for Sale of Controlled Substance

California Health and Safety Code § [Section] 11351 – Possession for Sale of Controlled Substance

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Health and Safety Code [HSC] §11351- Possession for Sale of Controlled Substance HSC §11351 makes it illegal to possess for sale any of a wide variety of illegal drugs referred to in the statute, including Schedule I and II narcotics. Section 11351 also makes it illegal to purchase for sale any of the drugs recited in the statute.

Conviction under HSC §11351 can result in a sentence of up to four years in a state prison and a fine of up to $20,000 (without additional aggravating factors, which can increase sentences by decades, and fines by hundreds of times). A guilty verdict also counts as a “strike” under California's “Three Strikes” system. If you accrue three such “strikes,” you will serve at least twenty-five years in a state prison.

What Does Health and Safety Code §11351 [Possession for Sale of Controlled Substance] Prohibit?

In sum, to be guilty of Possession for Sale of Controlled Substance under HSC §11351, the prosecution must prove that:

  • You possessed a controlled substance; AND,
  • You knew the substance was present; AND
  • You knew it was a controlled substance; AND,
  • You intended to sell it or that someone else sell it; AND,
  • The substance was listed in the schedules created by HSC §§11054 through 11058; OR,
  • It was an analog of one of those substances; AND,
  • There was a useable amount.

Defining “Possession for Sale of Controlled Substance” Under Health and Safety Code §11351

To convict you under HSC §11351, the prosecution must prove the following beyond a reasonable doubt:

  • Unlawfully Possessed: You unlawfully possessed[1] a controlled substance; AND,
  • Knowledge Of Presence: You knew of the presence of the substance; AND,
  • Knowledge Of Nature Or Character: You knew the substance's nature or character as a controlled substance;[2] AND,
  • Intent To Sell: When you possessed the controlled substance, you intended to sell it or that someone else sell it;[3] AND,
  • Substance Listed In The Schedules: The substance is listed in the schedules set forth in
  • §11054 through 11058 of the Health and Safety Code; OR,
  • Substance Was An Analog: The controlled substance was an analog[4] of one of the substances listed in the schedules; AND,
  • Usable Amount: The controlled substance was in a usable amount.[5]

Note:  You can receive a separate sentence for every sale you intend to make.[6]

Example: Defendant Dante is arrested one afternoon while working out at his gym. He's suspected of possessing steroids for sale. Police search his locker and find several large jars of Androstenediol (also known as “Andro”[7]). Dante, who has no prescription to possess the steroid and no license for its sale, is arrested and charged under HSC §11351. Dante admits that he kept the steroid for sale but also insists that the law doesn't cover Schedule III substances. He says he should be acquitted. Is Dante correct?

Conclusion: We can conclude reasonably that the Androstenediol was in a usable quantity because Dante had it in “several large jars.” While he didn't have the Androstenediol on his person, Dante constructively possessed the steroid by keeping it in his locker and having access to it whenever he opened his locker door. Dante also had no prescription to possess the steroid, no license for its sale, and knew that he kept the Androstenediol in his locker. He was aware, furthermore, that it is a Schedule III drug. These are all elements of the crime. However, HSC §11351 is specific: lower schedule drugs must be “narcotics in order to violate the statute. Yet Section 11056 lists “narcotics” under subpart (e) - while Androstenediol is listed under “Anabolic steroids and chorionic gonadotropin” in subpart (f) of the same schedule.[8]  Thus Possession of Androstenediol isn't actually illegal under HSC §11351. Dante is correct. While he might be punished under another law, he should be acquitted of violating HSC §11351.        

Penalties For “Possession for Sale of Controlled Substance” Under Health and Safety Code §11351

As noted previously, committing Possession or Sale of Controlled Substance is punishable with a term of as many as four (4) years in a state prison,[9] a $20,000 (twenty-thousand dollar) fine,[10] or imprisonment and a fine for every offense.[11]

If aggravating facts are present, however, both sentences and fines significantly change. If, for example, you're convicted of possessing heroin, cocaine, or cocaine base for sale purposes, and you have more than eighty kilograms by weight, you face up to twenty-five (25) years in a state prison[12] and a fine of as much as $8,000,000 (eight million dollars) for every offense,[13]  while if you're convicted of possessing more than twenty grams, or forty liters, of methamphetamine, amphetamine, phencyclidine (PCP) or its analogs, you face as many as fifteen (15) years in a state prison for every offense.[14] Enhanced sentences may be imposed in addition to the prison time ordinarily associated with the charged drug offense.[15]

HSC §11351 is also punished as part of California's “Three Strikes” system.[16] If you receive three “strikes” for committing serious or violent felonies, you will serve at least twenty-five years in a state prison.[17]

 

Defenses To Possession for Sale of Controlled Substance Under HSC §11351

Four common defenses against a charge of Possession for Sale of Controlled Substance under Section 11351 are:

You Didn't Possess The Drug

Example: Defendant Dee sells drugs on a college campus. She approaches Supplier at a warehouse “rave” (a dance party featuring DJs) one night and tells Supplier that she needs “molly” (MDMA[18]), a Schedule I drug,[19] to sell. They agree to meet behind the warehouse and complete a transaction in which Dee will buy a pound of MDMA. But Supplier is arrested for loitering at the meeting place and tells police about the transaction. Soon Dee finds herself charged under HSC §11351. Dee claims that she can't be convicted on these facts. Is Dee correct or should she be convicted of the crime?

Conclusion: Dee made an arrangement to purchase a substance prohibited under HSC §11351. She knew she was trying to purchase an illegal drug and communicated that she wanted to sell it. MDMA is usually taken in pill form; a pound of the drug would be considered more than merely “usable.” However, without addressing whether the controlled substance was in Dee's presence, the mere agreement to purchase a drug at some indeterminate point doesn't give the purchaser “control” for purposes of the statute. Dee could be said to “possess” the drug if she had actual control over the MDMA or the right to control it. She had neither. Thus Dee is correct. While some of the elements of the offense are present, she should be acquitted because she didn't possess the drug.   

You Didn't Intend On Selling The Drug

Example:  Defendant Damian is arrested with fourteen tablets of Codeine[20] in his possession without a prescription. Damian, who's an addict, grinds up the pills and injects the liquefied powder into his veins. He uses several a pills day. His arms and legs are covered with needle tracks, evidencing his addiction. All the Codeine found at the time of Damian's arrest is inside a single bag. He has very little money and no valuables at the time and swears to Arresting Officer that he has no intention of selling the pills. Arresting Officer nonetheless charges Damian with violating HSC §11351. Is Damian guilty of the charge?  

Conclusion: While Damian was in actual possession of a substance prohibited as a Schedule II drug[21] under §11351, and knew the character of the Codeine, its presence, and that he had no legal right to possess it, and while Damian possessed more than enough pills to make the quantity “usable,” Damian is not a drug seller. Damian, as the facts make clear, is an addict. He can offer proof of this, such as the tracks on his body, the extent of his habit, the absence of money or property from sales, and the fact the pills were found in one bag. Damian should be acquitted. He didn't intend on selling the drug.    

You Didn't Know The Drug Was Present

Example: Defendant Debbie goes to Friend's house, sleeps over, and goes to bed late. She awakens early and accidentally dons Friend's jeans, which closely resemble hers. Debbie is arrested for unpaid parking tickets that same day. Officer pats her down and finds three grams of cocaine inside three plastic bags

tucked into the back pocket of Friend's jeans. Officer arrests Debbie and charges her with violating HSC §11351. Debbie admits that she took cocaine with friend the night before, and even admits that there's cocaine back at Friend's house, but still insists that she's innocent. Has Debbie committed the offense?

Conclusion: Debbie knew that Friend possessed an illegal drug in Friend's house. Cocaine is listed under Section 11351. Three grams, bagged, is enough to establish both the intent to distribute and a usable quantity of the drug. These are elements of the charge. But, as the facts make clear, Debbie accidentally put on Friend's jeans after spending the night. There's no reason to believe she had any idea the drugs were in her presence when she put on the jeans; she simply donned what she thought were her own pants and left Friend's house. Debbie should, therefore, be acquitted of the charge because she didn't know the drug was present.   

You Were The Victim Of Police Misconduct

Example: Defendant Deke isn't well-liked by local police. He's pulled over one day for speeding. Officer One makes Deke get out and present identification while Officer Two reaches into Deke's vehicle and places six vials of cocaine on the back seat. Then, when the ticket is written and Deke is about to leave, Officer One looks into the back seat and “finds” the exposed cocaine vials. The Officers arrest Deke and charge him with violating §11351 but Deke insists that the cocaine isn't his. Should Deke be convicted?

Conclusion: While Officer One allegedly saw six vials of a drug prohibited by §11351, and could argue that that quantity contained in vials is evidence of intent to sell a usable amount, Officer Two placed the drugs inside the vehicle. It's reasonable to assume, furthermore, that Officer One knew that the other Officer would plant drugs. That Deke has difficulties with local police would explain their conduct. Deke   was, in other words, the victim of an illegal police conspiracy to place evidence in his car. He should be acquitted because he was the victim of police misconduct.    

Related Offenses

Note: The crimes below are described as “related” because they're frequently charged with HSC §11351 and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

Included in the California Health and Safety Code are several offenses related to Possession for Sale of Controlled Substance: Sale, Transportation, etc., Of A Controlled Substance (HSC §11352(a)), Simple Possession Of A Controlled Substance (HSC §11377(a)), Possession for Sale of Controlled Substance: Persons Eligible For Sentencing Under CPC §1170(h) [HSC §11378], Sale, Transportation for Sale, etc., of Controlled Substance (HSC §11379(a)), Possession Of Imitation Controlled Substance With Intent To Distribute (HSC §109575), Offering To Sell Substitute Substance (HSC §11355), Offering To Sell Synthetic Cannabinoid Or Cannabinoid Derivative  (HSC §11357.5(b)), Possession For Sale Of Synthetic Stimulant Compound (HSC §11375.5(a)), and Peyote Cultivation (HSC §11363).     

Sale, Transportation, etc., Of A Controlled Substance

Sale, Transportation, etc., Of A Controlled Substance (HSC §11352(a)) involves transporting, or importing into the state for sale, any one of a significant list of drugs recited in the statute.[22] Simply attempting to import or transport drugs for sale is also punishable under subpart (a). The Code Section even describes administering or making an offer to administer a listed drug as a crime. Section 11352 differs from HSC §11351 in that §11352 addresses possession for sale in actual drug purchases, not just the intent to sell.

If you're convicted of Sale, Transportation, etc., Of A Controlled Substance, the penalty may be:

  • A term of up to five (5) years in a state prison;[23] OR,
  • A fine of up to $20,000 (twenty-thousand dollars); OR,
  • Both a fine and imprisonment.[24]

Note: “A person transports something if he or she carries or moves it from one location to another for sale, even if the distance is short.”[25] Section 11352 is punished as a part of California's “Three Strikes” sentencing system, furthermore.[26]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that's guaranteed.

California Criminal Jury Instructions - Sale, Transportation, etc., Of A Controlled Substance

To convict you under HSC §11352(a), the prosecution must prove the following beyond a reasonable doubt:

You sold, administered, or transported for sale (or imported) a controlled substance. You knew of its presence and its nature or character as a controlled substance. The substance was listed in sections 11054 through 11058 of the Health and Safety Code or it was an analog of such a substance. The controlled substance was, finally, in a usable amount.

Example: Defendant Drake is flown to Nevada to visit Friend. Friend then asks Drake to drive Friend's SUV back to California and to leave it outside Drake's home. Drake agrees but is arrested at a checkpoint inside California when Officer spies a tall canister with a ring of mysterious yellow powder around the neck in the back seat of the vehicle. Officer removes the canister and, when checked, it's found to contain heroin. Drake insists that Friend told him nothing about the canister. He's arrested and charged under HSC §11352(a). Should Drake be convicted?    

Conclusion: Drake transported a Schedule I drug[27] into California by driving the SUV across state lines. A tall canister of heroin very likely contains a usable amount, furthermore. However, as the facts make clear, Drake was asked to do a favor for Friend. Friend neglected to tell Drake there was heroin in the vehicle. Thus Drake couldn't have known of the drug's presence nor could he have known of its nature or character as a controlled substance when transporting it. Drake, it follows, should not be convicted.

Simple Possession Of A Controlled Substance

Simple Possession Of A Controlled Substance (HSC §11377(a)) occurs whenever a person possesses one of the drugs listed in the statute.[28] The crime differs from Section 11351 in that, as the name suggests, mere possession of a controlled substance is made punishable under HSC §11377(a).

Since the prosecution can charge you with a Misdemeanor or a Felony, depending on the facts of your case, HSC §11377(a) is what is known as a “wobbler” offense.[29] If you're convicted of the Felony form of the crime, without enhancement, the penalty may be:

  • A term of up to three (3) years in a state prison;[30] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[31]

Note: You are “not guilty of possessing a controlled substance if you had a valid, written prescription for that substance from a physician, dentist, podiatrist, naturopathic doctor, or veterinarian licensed to practice in California.”[32]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and we guarantee it.

California Criminal Jury Instructions - Simple Possession Of A Controlled Substance

To convict you under HSC §11377(a), the prosecution must prove the following beyond a reasonable doubt:

You unlawfully possessed a controlled substance and knew of its presence. You also knew of the substance's nature or character as a controlled substance. The substance is listed in the schedules set forth in sections 11054 through 11058 of the Health and Safety Code or it was an analog of some type of controlled substance. The controlled substance was, finally, in a usable amount.

Example: Defendant Deidre is in a hurry one morning. She can't find the sugar for her coffee so she grabs a gram-sized packet of white powder from Roommate's tin, marked “Sugar.” She rushes off to work and gets into an accident along the way. Police Officer, responding to the accident call, sees the packet on Deirdre's car seat, investigates, and determines that the substance is methamphetamine. Police Officer arrests Deirdre for violating HSC §11377(a). Deirdre swears she doesn't use drugs and didn't know about the methamphetamine. Should she be convicted?

Conclusion: Deirdre had no lawful prescription to be in possession of a drug listed in the Health and Safety Code as a Schedule II drug.[33] She was, nonetheless, in possession of it. There was also enough methamphetamine to be used. However, as the facts state, Deirdre was duped into thinking that a packet of methamphetamine actually contained sugar. She took the packet for her coffee – nothing more. Deirdre didn't, therefore, know of the nature or character of the drug nor could she have been aware that it was present. Deirdre should be acquitted on these facts.  

Possession for Sale of Controlled Substance: Additional Persons Eligible For Sentencing Under CPC §1170(h)

Possession for Sale of Controlled Substance: Additional Persons Eligible For Sentencing Under CPC §1170(h) [HSC §11378] calls for sentencing specified groups under California's “Three Strikes” system for selling or possessing certain drugs for sale. The statute creates five additional categories of offenders who are eligible for enhanced sentencing, including persons possessing for sale anything “classified in Schedule III, IV, or V [that] is not a narcotic drug.”[34]  

If you're convicted of violating HSC §11378, the penalty, without sentence enhancement, may be:

  • A term of up to three (3) years in a state prison;[35] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[36]

Note: Penalties for persons with more than one “strike” on their records are significantly more severe.[37]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and we guarantee it.

California Criminal Jury Instructions - Possession for Sale of Controlled Substance: Additional Persons Eligible For Sentencing Under CPC §1170(h)

To convict you under HSC §11378, the prosecution must prove the following beyond a reasonable doubt:

You unlawfully possessed a controlled substance listed in the statute and knew of its presence. You also knew of the substance's nature or character as a controlled substance and you intended to sell it or that someone else sell it. The substance is listed in the schedules set forth in sections 11054 through 11058 of the Health and Safety Code or it was an analog of some type of controlled substance. The controlled substance was, finally, in a usable amount.

Example: Defendant Dominica has a “strike” on her record for violating HSC §11351(a). She returns to selling psychedelic drugs after being released from prison. She buys morning glory seeds because they contain Lysergic acid amide (which is said to be hallucinogenic), also known as Ergine.[38] She also purchases dirt, plastic bags for storage, and plant food. Undercover Police, stationed at the nursery where she buys these items, sees the transaction, reports it, and has Dominica arrested and charged with violating HSC §11378 (1). Prosecutors want to give her a second “strike”; Dominica insists that she shouldn't be prosecuted at all. Is Dominica right?      

Conclusion: Dominica had in her possession seeds which would produce plants rich in a substance listed as prohibited by Schedule III in California.[39] The drug is also prohibited by subpart (1) of HSC §11378 as a form of “non-narcotic.” Dominica intended on producing the flower so she could sell it as a psychedelic and knew of its nature as a controlled substance (which we can assume because she tried to cultivate it for sale it in the first place). She would've had no legal right to possess the drug in what would've been, presumably, a sufficiently large quantity to be used. She knew, finally, of the presence of the seeds and their content. There is, however, no prohibition against possession of morning glory seeds. This applies even if you possess paraphernalia necessary to sell Ergine in pure compound form. Possession of Ergine in seed form is not, in other words, “possession for sale.” Dominica should be acquitted of the charge.

Sale, Transportation for Sale, etc., of Controlled Substance

The law prohibiting Sale, Transportation for Sale, etc., of Controlled Substance (HSC §11379(a)) applies whenever anyone actually transports, or arranges to transport, any of the drugs recited in the statute. This includes any controlled substance “classified in Schedule III, IV, or V” which isn't “a narcotic drug.”[40]

If you're convicted of Sale, Transportation for Sale, etc., of Controlled Substance, the penalty may be:

  • A term of up to four (4) years in a state prison;[41] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine.[42]

Note: Section 11379(a) also makes it illegal to sell, furnish, administer or give away banned substances or to offer to do any of these things.

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer – and that's guaranteed.

California Criminal Jury Instructions - Sale, Transportation for Sale, etc., of Controlled Substance

To convict you under HSC §11379(a), the prosecution must prove the following beyond a reasonable doubt:

You transported for sale, or imported, a controlled substance. You knew of its presence and of the substance's nature or character as a controlled substance. The substance is listed in the schedules set forth in sections 11054 through 11058 of the Health and Safety Code or it was an analog of a controlled substance. The substance was, finally, in a usable amount.

Example: Defendant Derek watches as his apartment is raided after a customer tips police that Derek sells cocaine. Police find plastic baggies suitable for drug sales. They also find a scale in a different part of the residence and evidence that Derek recently had the cocaine imported from out of state. But the only cocaine police find is in a few fingerprints they find on one of the scale's metal pans. They arrest Derek for violating HSC §11379(a) anyway. Should Derek be convicted or acquitted of the accusation?    

Conclusion: Derek, as the facts make clear, is a cocaine seller. He had in his possession the paraphernalia necessary to sell the drug. We can assume Derek knew the nature of the substance he sold. Evidence that he had the drug imported, furthermore, supports his conviction. Cocaine is, of course, illegal. These facts suggest that Derek is guilty. But Derek had only a trace amount of cocaine in his possession. It stands to reason that a drug located in “a few fingerprints” found “on one of the scale's metal pans” isn't in an amount significant enough to justify a conviction. Derek, it follows, shouldn't be convicted because he didn't have a usable amount of cocaine.

Possession Of Imitation Controlled Substance With Intent To Distribute

Possession Of Imitation Controlled Substance With Intent To Distribute (HSC §109575) occurs whenever anyone “knowingly manufactures, distributes, or possesses” with intent to distribute “an imitation controlled substance.”[43]

If you're convicted of Possession Of Imitation Controlled Substance With Intent To Distribute, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of $1,000 (one-thousand dollars); OR,
  • Both imprisonment and a fine.[44]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer – and that's guaranteed.

California Criminal Jury Instructions - Possession Of Imitation Controlled Substance With Intent To Distribute

To convict you under HSC §109575, the prosecution must prove the following beyond a reasonable doubt:

You knowingly manufactured, distributed, or possessed an imitation controlled substance with intent to distribute.

Example: Defendant Damon is a California College student who's short on money. He resorts to mixing black ash powder and incense inside a plastic sandwich bag. He sells it to dorm neighbor Victim Vicca as hashish. Vicca tries to smoke it, realizes that Damon deceived her, and reports Damon to campus police. Damon is arrested and charged under HSC §109575. He insists he has to be acquitted because he didn't possess a controlled substance at any point. Should Damon be acquitted?

Conclusion: Damon is correct; he didn't actually possess hashish. But, because he needed money, he created, possessed, and then distributed an imitation of hashish. The crime of Possession Of Imitation Controlled Substance With Intent To Distribute requires nothing more than these acts. Thus, while Damon is correct about the nature of the substance he created, he should be convicted of the charge.

Offering To Sell Substitute Substance

You commit the crime of Offering To Sell Substitute Substance (HSC §11355) by offering to sell any one of the many narcotic drugs referenced in the statute while intending instead on delivering an imitation. The statute lists offering to deliver “any controlled substance classified in Schedule III, IV, or V which is a narcotic drug”[45] among prohibited its acts.   

Since the prosecution can charge you with a Misdemeanor or Felony, depending on the facts of your case, HSC §11355 is known as a “wobbler” offense.[46] If you're convicted of the Felony form, without enhancement, the penalty may be:

  • A term of up to three (3) years in a state prison;[47] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[48]

Note: The prosecution doesn't have to prove that you “actually possessed the non-controlled substance.”[49]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call always goes directly to a lawyer – and that's a guarantee.

California Criminal Jury Instructions - Offering To Sell Substitute Substance

To convict you under HSC §11355, the prosecution must prove the following beyond a reasonable doubt:

You unlawfully offered to sell, transport, or provide a controlled substance and, when you did so, you intended on delivering a non-controlled substance in lieu of that controlled substance.

Example: A partygoer, Defendant Delroy, tries to impress Victim Vera, a guest, by offering her a plastic bag of what he tells her is “pure cocaine.” Vera takes the bag and is later arrested for trying to sell it to Undercover Officer. She tells Undercover Officer that Delroy gave her the bag. Police arrest Delroy. He informs them that they can't do anything to him because he gave Vera a bag of sugar for free and never intended on doing anything else. Tests confirm that the bag contains sugar. Delroy is charged under HSC §11355 nonetheless. He insists that he must be freed. Is Delroy innocent?

Conclusion: Delroy didn't possess a controlled substance; tests prove that he provided Vera with nothing more illegal than sugar. But he offered to give Vera cocaine, which is a form of transaction prohibited by the statute. Delroy, by his own admission, intended on providing Vera with sugar at the time he made the offer. The fact that Delroy gave Vera the bag without anything of value passing between them does not make the act legal under California law. Delroy should, therefore, be convicted of the accusation.

Offering To Sell Synthetic Cannabinoid Or Cannabinoid Derivative

Offering To Sell Synthetic Cannabinoid Or Cannabinoid  Derivative (HSC §11357.5(a)) involves offering to sell, dispense, distribute, furnish, or give away any synthetic cannabinoid or derivative as defined under the statute.[50]  

If you're convicted of Offering To Sell Synthetic Cannabinoid Or Cannabinoid Derivative, a Misdemeanor, the penalty may be:

  • A term of up to six (6) months in a county jail; OR
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.[51]

Note: You can violate HSC §11357.5(a) without selling anything.

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call always goes directly to a lawyer – and that's a guarantee.

California Criminal Jury Instructions - Offering To Sell Synthetic Cannabinoid Or Cannabinoid Derivative

To convict you under HSC §11357.5(a), the prosecution must prove the following beyond a reasonable doubt:

You sold, dispensed, distributed, furnished, administered, gave, or offered to sell, dispense, distribute, furnish, administer, or give, any synthetic cannabinoid compound or synthetic cannabinoid to a person.

Example: Defendant Demarcus learns online how to make synthetic marijuana and offers to make it for Victim Vollmer, his friend, but Vollmer's Father, a police officer, finds out about the offer and reports Demarcus. Demarcus is arrested and charged under §11357.5(a). Should he be convicted of the crime?  

Conclusion: Demarcus offered to furnish Vollmer with synthetic marijuana, also known as a cannabinoid. No profit motive was necessary. Demarcus is, therefore, guilty of Offering To Sell Synthetic Cannabinoid Or Cannabinoid Derivative under HSC §11357.5(a). 

Possession For Sale Of Synthetic Stimulant Compound

The crime of Possession For Sale Of Synthetic Stimulant Compound (HSC §11375.5(a)) occurs whenever anyone sells, dispenses, distributes, furnishes, administers, gives, or offers to sell, dispense, distribute, furnish, administer, or give, any synthetic stimulant compound to another person. The compound must be of the sort specified in the statute[52] “or any synthetic stimulant derivative.”[53] Section 11375.5(a) also makes it illegal to possess for sale any one of the listed synthetic stimulants.

If you're convicted of Possession For Sale Of Synthetic Stimulant Compound, a Misdemeanor, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.[54]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. You'll always get directly to a lawyer – guaranteed.

California Criminal Jury Instructions - Possession For Sale Of Synthetic Stimulant Compound

To convict you under HSC §11375.5(a), the prosecution must prove the following beyond a reasonable doubt:

You sold, dispensed, distributed, furnished, administered, gave, or offered to sell, dispense, distribute, furnish, administer, or give, a synthetic stimulant compound specified in the statute, or any synthetic stimulant derivative, to another person, or you possessed for sale a prohibited synthetic compound or derivative.

Example:  Defendant Derrick, a chemist, uses Employer's lab facilities to produce a small amount of a synthetic stimulant prohibited by law. He plans on taking the drug at a nightclub when he goes dancing. Derrick takes the stimulant home but he's arrested on the way for an unrelated reason. Officer searches his vehicle and finds the half-gram vial of compound in liquid form. Derrick admits what the contents are and tells Officer it is for personal use. Officer doesn't believe him and charges him with violating HSC §11375.5(a). Derrick swears that he didn't commit the crime. Should he be convicted on these facts?

Conclusion: Derrick intentionally created a synthetic stimulant that is prohibited by California law. But the facts make it clear that Derrick didn't intend on selling the stimulant. He also possessed a single vial of the drug with one-half of one gram inside the vial. A jury or judge would likely find it reasonable to assume that, considering these additional facts, Derrick didn't intend on selling the drug or on furnishing it to another person. Thus the drug was for personal use only. Therefore, while Derrick might be charged with some other form of illegal possession, he shouldn't be convicted under HSC §11375.5(a).    

Peyote Cultivation

Peyote Cultivation (HSC §11363) is in fact a crime in California. Though it has been argued that use of peyote should be legalized for religious purposes, the US Supreme Court has held that laws which don't exempt religious ceremonial uses still do not violate the Free Exercise Clause of the constitution when those laws declare peyote illegal.[55] This is why HSC §11363 can prohibit planting, cultivating, harvesting, drying or processing “any plant of the genus Lophophora, also known as peyote, or any part thereof[.]”[56]     

If you're convicted of Peyote Cultivation, the penalty may be:

  • A term of up to one (1) year in a county jail;[57] OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.[58]

More information can be found in the Drug Crime Defense Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. You'll always get directly to a lawyer – guaranteed.

California Criminal Jury Instructions – Peyote Cultivation

To convict you under HSC §11363, the prosecution must prove the following beyond a reasonable doubt:

You planted, cultivated, harvested, dried, or processed a peyote plant or any part of a peyote plant.

Example: Defendant Davis is arrested when Neighbor reports that Davis is growing peyote in Davis's personal garden. Police seize several San Pedro cacti[59] and, knowing that mescaline occurs naturally in peyote cacti, charge Davis with violation of HSC §11363. But Davis insists that, although the cactus he grew does contain mescaline, San Pedro cacti aren't illegal under the Code Section. Is Davis correct?  

Conclusion: Davis grew cacti that naturally contain a Schedule I drug.[60] Police were correct; mescaline occurs naturally in peyote cacti. But mescaline occurs in several sources which are not peyote plants, including San Pedro cacti. Therefore, while Davis can be charged with possession of a narcotic drug, he shouldn't be convicted of Peyote Cultivation.

What Can I Do If I'm Charged With Possession for Sale of Controlled Substance?

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The State of California regards Possession for Sale of Controlled Substance as a serious offense. If you're charged with Possession for Sale of Controlled Substance, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. If you or someone you know has been arrested or charged with Possession for Sale of Controlled Substance, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.                               

References

[1] “Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person. [¶] Agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.” See California Criminal Jury Instructions 2302 (CALCRIM) (2017).

[2] The prosecution does “not need to prove that” you “knew which specific controlled substance [you] possessed.” See California Criminal Jury Instructions 2302 (CALCRIM) (2017).

[3] “Selling […] means exchanging the controlled substance for money, services, or anything of value.” See California Criminal Jury Instructions 2302 (CALCRIM) (2017).

[4] “An analog of a controlled substance: [¶] 1. Has a chemical structure substantially similar to the structure of a controlled substance; [¶] OR [¶] 2. Has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to or greater than the effect of a controlled substance.” See California Criminal Jury Instructions 2302 (CALCRIM) (2017).

[5] “A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces or debris are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.” See California Criminal Jury Instructions 2302 (CALCRIM) (2017).

[6] See People v. Monarrez, 66 Cal. App. 4th 710 (4th Dist. 1998). (Defendant Monarrez challenged lower court conviction for possession with intent to sell two different drugs, claiming it was one crime; Ct.App. held for State.)

[7] See “Androstenediol” at Webmd.com.

[8] See HSC §§11056 (e) (1) – (6), (f) (2).

[9] See HSC §11351.

[10] See HSC §11372 (a).

[11] See above.

[12] See HSC §11370.4 (a) (6).

[13] See HSC §11372 (d).

[14] See HSC §11370.4 (b) (4).

[15] See HSC §11370.4 (d).

[16] See CPC §1170 (h) (1).

[17]  See CPC §667 (e) (2) (A) (ii).

[18] See “MDMA” at Psychonautwiki.org.

[19] See CPC §11504 (d) (6).

[20] See “Codeine” at Psychonautwiki.org.

[21] See HSC §11505 (b) (1) (G).

[22] The statute references, for example, “any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) 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,” among other drugs. See HSC §11352 (a).

[23] See HSC §11352 (a).

[24] See Endnote 10.

[25] See California Criminal Jury Instructions 2300 (CALCRIM) (2017).

[26] See Endnote 16.

[27] See HSC §11504 (c) (11).

[28] The statute references, for example, any drug “in Schedule III, IV, or V[ ] [ ] which is not a narcotic drug,” among others. See HSC §11377 (a).

[29] See “Wobbler” definition at USLegal.com.

[30] See Endnote 16.

[31] See CPC §672.

[32] See California Criminal Jury Instructions 2304 (CALCRIM) (2017).

[33] See HSC §11055 (d) (2).

[34] See HSC §11378 (1).

[35] See Endnote 16.

[36] See Endnote 31. 

[37] See Endnote 17.

[38] See “Ergine: History” at Wikipedia.com.

[39] See HSC §11506 (c) (6).

[40] See HSC §11379 (a) (1).

[41] See HSC §11379 (a).

[42] See Endnote 31. 

[43] See HSC §109575.

[44] See above.

[45] See HSC §11355 (2).

[46] See Endnote 29.

[47] See Endnote 16.

[48] See Endnote 31.

[49] See California Criminal Jury Instructions 2316 (CALCRIM) (2017).

[50] See HSC §§11357.5 (c) (1) – (14).

[51] See HSC §11357.5 (a).

[52] See HSC §§11375.5 (c) (1) – (3).

[53] See HSC §11375.5 (a). 

[54] See above.

[55] See Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). (Defendants were fired for taking Peyote ceremonially, claimed they had right under Free Exercise clause to do so; Sup.Ct. held for State of Oregon.)

[56] See HSC §11363.

[57] See above.

[58] See Endnote 31. 

[59] See “Echinopsis pachanoi” at Wikipedia.com.

[60] See HSC §11054 (d) (14).  

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