California has long been dealing with the issue of controlled substances, part of which includes arresting and charging people in violation of the statutes against possession, sale, transportation, and use of controlled substances. One of the statutes, Health and Safety Code 11351, makes it a crime to possess a controlled substance for sale. Drug laws in California can be complicated. Therefore, without the right defense, most defendants end up in jail or prison without a fighting chance. In the years the Michele Ferroni Pasadena Criminal Attorney Law Firm has been in operation, we have defended numerous cases of people charged with possession of a controlled substance in Pasadena. As part of our defense, we encourage our clients to learn more about the charges against them. Here’s some information about the offense and what you can expect during the criminal proceedings.
Understanding Possession of a Controlled Substance for Sale
California law defines a controlled substance as any drug or chemical regulated by the United States Controlled Substances Act. The US Controlled Substances Act was established as part of the Federal Government's fight against drug and substance abuse. The act controls prescription and other drugs or substances without a demonstrable medical value.
These drugs and substances are classified into five schedules. Each has its stipulated manufacturing process, possession regulations, usage requirements, and related crimes.
Some of the controlled substances the US Controlled Substances Act regulates include heroin, LSD, marijuana, ecstasy (MDMA), mescaline, peyote, amphetamines, barbiturates, cocaine, codeine, fentanyl, methadone, morphine, PCP, anabolic steroids, and other pharmacological drugs.
Since both prescription and narcotic drugs are covered under the US Controlled and Substance Act, you can be charged with possessing a controlled substance for either of these drug classes.
During the court proceedings, the prosecution has the burden to prove that you committed a crime beyond a reasonable doubt. The elements that the prosecution must prove for a conviction of possession of a controlled substance for sale include:
- You possessed a drug
- You knew that you were in possession of a drug
- At the time, you were aware of the drug’s status as a controlled substance
- You possessed or purchased the drug to sell it
For this statute, possession can be categorized into three forms: actual, joint, and constructive.
Actual possession refers to physically having the controlled substance on your person, for instance, in your pockets or a bag you carry. Actual possession is often the easiest to prove.
Constructive possession, on the other hand, implies that the controlled substance was in a place to which you had access or the right to control. Constructive criticism relies heavily on circumstantial evidence, for instance, the presence of a controlled substance in your house or car.
Joint possession refers to a scenario where more than one person has possession of a drug. Cases of joint possession are likely to arise where more than one person has access to or the right to control the controlled substance.
For example, if the police find drugs in a car that both you and your partner use, they might charge you with joint possession of a controlled substance.
The prosecution also has to prove that you knew you were in possession of the controlled substance. Let's say that you and a partner share a vehicle. Your partner uses the car to sell a controlled substance, but you are unaware of the presence of their activities. In this case, you do not meet the element of knowing that you have a controlled substance.
In addition to the knowledge that you have a controlled substance, the prosecution must prove that you knew that the substance was a controlled substance. This does not imply the knowledge of the drug's name, chemical components, or effects; all the prosecution needs to establish is that you were aware that the substance was an illegal controlled substance.
In most cases, the prosecution relies on circumstantial evidence to prove that:
- You knew that you were in possession of a controlled substance
- You were aware of the nature of the drug as a controlled substance
Such circumstantial evidence includes the fact that you had the controlled substance and your behavior during the initial discovery of the controlled substance. For instance, attempting to conceal a controlled substance points to the fact that you knew it was an illegal controlled substance.
For the prosecution to secure a conviction for possession to sell, they must prove that you intended to sell the controlled substance. Intent is a critical element of the offense. In this case, the prosecution does not have to prove that you would be the one selling the controlled substance. This means that if you intended to have another person sell on your behalf, you are still guilty of possessing a controlled substance for sale.
Without the proof that you intended to sell the controlled substance, your defense team can make a plea bargain for lesser charges such as possession for personal use.
Proving intent is often the most challenging part for the prosecution in possession of a controlled substance for sale. In these cases, the prosecution relies on circumstantial evidence unless the defendant offers a voluntary confession of their intention to sell the controlled substance.
Some of the circumstances that could point to your intent to sell a controlled substance include:
- You possessed a controlled substance in quantity higher than what the average person would personally consume
- The packaging of the controlled substance. Police point to the fact that controlled substances packaged in specific ways, such as baggies, bindles, balloons, and bundles, are often meant for sale. This also implies that having a stock of packaging materials proves that you intend to sell the controlled substance.
- Drug paraphernalia that you may have. When police find drug paraphernalia used to ingest, inject or consume a drug, it could point to possession for personal sale. The absence of these paraphernalia points to possible possession for sale. Instruments such as packaging, weighing, and measuring tools can solidify the prosecution's case in proving that you possessed the controlled substance for sale.
- You were under the influence. Although most drug sellers are also users, being under the influence of a controlled substance could prove that you possessed the drug for personal use (it could also lead to other crimes related to being under the influence of a controlled substance).
Legal Defenses to Possession of a Controlled Substance for Sale
California has extensive laws covering various drug crimes, making it essential for those charged with drug crimes to work with an experienced criminal defense lawyer. Your defense lawyer will work closely with you to understand the circumstances of the offense so they can develop a solid strategy to fight the charges against you.
Depending on the circumstances of the offense, the attorney may use some of these defenses:
1. You Did Not Possess a Controlled Substance
You could not be guilty of possessing a controlled substance if you did not have the controlled substance in the first place. This means that if your attorney can convince the court that you did not possess the controlled substance, the court will likely dismiss your case or acquit you. This defense works well where the prosecution alleges constructive possession.
2. Possession for Personal Use
This defense works in reducing your offense from possession for sale to possession for personal use. The defense applies in cases where the prosecution has overwhelming evidence that you possessed the drugs.
Suppose the prosecution cannot adequately disprove that you possessed the controlled substance for personal use. In that case, you could be charged with possession for sale, which allows you to participate in a California drug diversion program.
The defense could also work if you possessed the controlled substance in quantities for personal use. For instance, if the police caught you with a trunk full of a controlled substance, your odds of proving possession for personal use are slim to none.
3. No Knowledge
The prosecution must prove that you knew that you were in possession of a controlled substance. However, you cannot be guilty of the offense if you did not realize that what you possessed was a controlled substance. The same case applies if you did not know that you were in possession of a controlled substance.
Let’s say, for instance, that you were caught with a container carrying a white substance. If you believed the powder was sugar or… just a white powder, the defense of lack of knowledge might work.
Note, however, that the prosecution will use additional circumstantial evidence to prove your knowledge of the nature of the substance. For instance, this argument is less likely to work if you have a record of possessing drugs for sale or personal use. The same is true if you mistook one controlled substance for another.
4. Illegal Search and Seizure
Illegal searches are seizures common in drug crimes across California. Police raids are likely to result in illegal searches and seizures. Some of the scenarios that could result in an illegal search and seizure defense include:
- The police did not have a valid California search warrant to search your house, car, or property
- The police exceeded the scope of the search warrant. For example, they searched your house when the warrant covered only the garage.
- The police detained or stopped you illegally.
Any evidence obtained in an illegal search and seizure is inadmissible in court as evidence. Therefore, if the evidence makes the bulk of the prosecution’s case, the court could dismiss it or charge you with a lesser offense.
5. Police Misconduct
In addition to illegal searches and seizures, you could be the victim of police misconduct. For instance, when an officer places a drug in your car, pocket, or property, then "finds" it.
Cases like these of police misconduct result in the dismissal of the evidence from these cases, meaning that the court could dismiss your case.
Another case of police misconduct is entrapment, where a police officer, often in an undercover operation, displays overbearing conduct that results in you committing a crime.
Using entrapment as a defense works if you can prove that you could not have committed the crime outside the officer's overbearing actions.
Penalties and Sentencing
Possessing a controlled substance for sale is a felony in California. The offense attracts a county jail sentence of two, three, or four years and a maximum of $20,000 in fines. Alternatively, you could be sentenced to a year in jail and probation.
The court can increase the penalties based on the number of sales you intended to make. If you were to make multiple sales of the controlled substance, you might be penalized for each intended sale.
Legal immigrants and aliens also face the risk of deportation if convicted of possession with the intent to sell.
In addition to considering each intended sale when sentencing you, the court also considers other aggravating factors when imposing the sentence. Some of these factors include:
- Possession of a cocaine base for sale attracts a minimum of three years in county jail and up to $20,000 in fines. In addition, you may face an additional:
- Three years for heroin, cocaine, or cocaine base exceeding one kilogram
- Five years for heroin, cocaine, or cocaine base exceeding four kilograms
- Fifteen years for heroin, cocaine, or cocaine base exceeding 20 kilograms
- Twenty years for heroin cocaine, or cocaine base exceeding 40 kilograms
- Twenty-five years for heroin, cocaine, or cocaine base exceeding 80 kilograms
Note: the weight enhancements come with a potential fine of up to eight million dollars.
- You face an additional and consecutive three-year sentence for each prior felony on your record if you are convicted of possessing a controlled substance for sale.
Related Offenses
In addition to possession of a controlled substance for sale, you may be charged with other offenses that are closely related. These offenses include:
1. Personal Possession
Possession of a controlled substance for personal use or simple possession refers to the crime of possessing a controlled substance for personal use. In cases where the prosecution cannot prove possession for sale, they can reduce the offense to possession for personal use - a California misdemeanor. You face a maximum jail sentence of one year or summary probation if convicted.
However, if you have a prior felony conviction, the court will convict you for a felony, with a sentence of up to three years in jail.
Since simple possession is a non-violent drug crime, you could be allowed to serve your sentence in drug treatment (drug diversion program) instead of jail.
2. Operating a Drug House
Knowingly maintaining or creating a facility for storing and selling a controlled substance is a federal and state crime. When charged 1with a federal offense, you face up to 20 years in federal prison and fines of up to $500,000. In addition, you could be charged civil fines twice the proceeds of each violation.
Operating a drug house in California is a wobbler offense. The misdemeanor charge is punishable by a maximum jail sentence of one year and a fine not exceeding a thousand dollars.
A felony conviction has a penalty of up to three years in prison and up to $10,000 in fines. The state may also confiscate any property used in operating the drug house.
Note that, for the purposes of this law, a drug house refers to a house, apartment, or any other structure used to distribute illegal drugs to other people repeatedly. Maintaining a similar place for personal drug use does not amount to the offense of operating a drug house.
3. Possession of Marijuana for Sale
While California has legalized recreational and personal use of marijuana, it is still a crime to possess marijuana for sale without the necessary government approval. This crime applies to people without a license to sell medical or recreational marijuana. Therefore, the law targets black market marijuana sales.
The offense is a misdemeanor, resulting in a jail sentence of up to six months and a fine of up to $500 if convicted.
However, you could be convicted of a felony if:
- You have a prior conviction of a serious violent crime or a sex crime on your record
- You are a repeat offender
- You sell marijuana to minors
4. Sale of Imitation Controlled Substances
Selling fake drugs or imitations of controlled substances is a crime under HS 11355. You are guilty of this offense if you agree to sell or provide a controlled substance. Instead, you deliver or intend to deliver a fake or an imitation.
The offense is a California wobbler. The penalties for misdemeanor sale of imitation controlled substances include a maximum of one year in county jail. As a felony, the crime attracts a sentence of 16 months, two years, or three years in county jail.
In both misdemeanor and felony convictions, the judge may award you a summary or formal probation for the offense.
Depending on the circumstances of the crime, you could also be charged with manufacturing an imitation controlled substance in violation of HS 109575, which is a misdemeanor punishable by imprisonment in county jail for up to six months.
5. Transporting a Controlled Substance
HS 11352 makes it a crime to sell, furnish, transport, import, or administer a controlled substance. The offense applies to drugs such as cocaine, heroin, LSD< peyote, codeine, OxyContin, and hydrocodone. Methamphetamines and marijuana are prosecuted under separate statutes.
HS 11352 prohibits selling these drugs or transporting them with the intent to sell them. In this case, the prosecution must prove that you knowingly transported a controlled substance, knowing well that it was a controlled substance.
Under this statute, transporting means moving the controlled substance from one place to another, no matter how short the distance is, to sell. It also applies regardless of the mode of transportation you use.
Transporting a controlled substance is a felony punishable by 3, 4, or5 years in county jail for a first offense. Suppose you transported the controlled substances across two county lines within California. In that case, the offense attracts a county jail term of 3, 6, or 9 years. The offense also carries a potential fine of up to $20,000.
Sentence enhancements could also be applicable depending on the circumstances of the offense. They include:
- Trafficking heroin, cocaine, or a cocaine base near a homeless shelter or a drug treatment center
- Transporting large quantities of heroin, cocaine, or cocaine base (the sentence enhancements, in this case, depend on the weight of the controlled substance.)
- Prior conviction for drug crimes attracts an additional and consecutive three-year sentence for each prior conviction
- Transporting and selling drugs to a person who was pregnant, is in treatment for a mental health disorder or drug problem, or an ex-convict of a violent felony, the judge has the discretion to impose the harshest sentence allowed by law.
6. Possessing, Selling, and Transporting Methamphetamines
Transporting, selling, or administering methamphetamines is a felony in California. The offense attracts a maximum jail sentence of four years and a fine of up to $10,000. In addition, you can receive sentence enhancements if:
- You crossed two county lines intending to sell methamphetamines
- You possessed, sold, or transported meth in or near a homeless shelter, a drug treatment center, or a detox facility
- You involved a minor in the sale or transportation of methamphetamines
- You had more than one kilogram of meth
Find a Pasadena Drugs Crime Defense Attorney Near Me
If you are facing charges of possessing a controlled substance for sale, you face a minimum jail sentence of 3 three in county jail, not to mention the possible sentence enhancements that the court could impose. Drug charges are serious offenses that could affect your employment prospects if convicted. Working with an experienced drug crimes attorney helps you fight these charges as best as you can and help you navigate the complex drug laws in California and the criminal justice system. Michele Ferroni Pasadena Criminal Attorney Law Firm in Pasadena works with defendants charged with various drug crimes, helping them develop and present a solid defense strategy in court. You can reach us for a free evaluation and consultation on your case at 626-628-0564.
