California law distinguishes between drug possession of drugs for purposes of consumption, and drug possession for purposes of sale. Specifically, possession for purposes of sales is a felony and can subject a defendant to significant prison time. For the most part, drug possession for purposes of use is either a misdemeanor or an infraction. In many cases, the only penalty a person will face is a fine.
Possession with intent to sell is, at its core, a possession crime. It has all the same elements as simple possession of drugs, and only differs in that the prosecution must prove the defendant's intent was to sell the drugs in order to escalate the crime to a felony and impose harsher penalties.
While other portions of California's Health and Safety Code cover the possession of drugs for purposes of use (sections, 11377, 11357 and 11350,) possession with intent to sell is proscribed primarily by Health and Safety Code section 11351 and 11378. These sections cover most types of controlled substances other than cocaine base, which is proscribed under section 11351.5. However, the penalties called for in that section are exactly the same as for other controlled substances.
Controlled substances, for purposes of sections 11351 and 11378 not only cover drugs such as heroin, cocaine and methamphetamine, for which any possession is illegal; it also prohibits possession of certain pharmaceuticals like Vicodin and Oxycontin, which can be possessed legally, if that possession is coupled with a legal prescription.
The two other types of controlled substances covered under different sections of the Health and Safety Code are marijuana and methamphetamine ("meth.") Possession of marijuana with intent to sell is covered by Health and Safety Code section 11359, and will can only be treated as an infraction or misdemeanor. Possession of methamphetamine with intent to sell is covered by Health and Safety Code section 11378 and is prosecuted as a felony.
Possession with Intent to Sell Versus Possession for Use:
Because the penalties associated with possession with intent to sell will typically be much more severe than those for possession for use, it is important to know what separates the two offenses.
There is no bright-line rule for what separates possession for use with possession for sales. That determination, which will generally be made by a prosecutor who carries wide discretion on how to charge a crime, is usually based on the totality of the circumstances surrounding the possession.
How a prosecutor will typically decide whether to charge a possession crime as one with intent to sell or for personal use, is by looking at the "indicia" surrounding that possession, and whether it appear that the possession was for purposes of selling or for use.
There are a number of "indicia" that a prosecutor will generally look to in making this determination, and not all can or will apply in ever case. However, there are some that will typically apply to most situations:
- Was the person in possession of a large quantity of drugs? If the amount is sufficiently high (e.g., several kilograms or cocaine heroin) this single factor will likely be sufficient;
- Was paraphernalia found with the drugs used for purposes of consumption (e.g., a pipe or syringe) or for sales (e.g., scales and plastic baggies;)
- Was the person in possession of the drugs also in possession of large quantities of cash;
- Was the person in possession of the drugs observed interacting with large numbers of people for short periods of time, or were they keeping to themselves;
- Were the drugs stored in a single package, or were they packaged in multiple, smaller packages.
While no single one of these is necessarily conclusive of intent to sell, some, such as the quantity of drugs, are more telling then others. If a prosecutor determines that there are sufficient "indicia" of an intent to sell, they may then prosecute the drug possession as possession with intent to sell.
Possession of Marijuana With Intent to Sell:
Since the passage of Prop 64, marijuana has been treated differently than other controlled substances. This is also true for possession of marijuana with intent to sell. Penalties for possession of marijuana with intent to sell are covered separately from other controlled substances under Health and Safety Code section 11359, and are much less severe. In fact, if the defendant is under the age of 18, the offense is treated as an infraction. Otherwise, the offense will be prosecuted as a misdemeanor unless it involves sale to minors or (in the case of defendants age 21 or over) involves the employment of minors or adults age 20 or under. In those cases, the possession will be treated as a felony, but with somewhat lighter penalties than possession with intent to sell charges for other drugs.
Possession of Methamphetamine With Intent to Sell:
While possession of marijuana with intent to sell is generally treated much less severely than possession of other types of drugs, possession of methamphetamine with intent to sell is treated more similarly to possession with intent to sell most other drugs (as prohibited by Health and Safety Code section 11351.) However, the penalties for possession of methamphetamine with intent to sell are somewhat less severe than the penalties mandated by section 11351. This includes a shorter jail or prison sentence (3 years maximum for H & S 11378, as opposed to 4 years maximum for H & S 11351) and a lower maximum fine.
How May a Prosecutor Prove Possession With Intent to Sell:
To prove a defendant guilty of possession with intent to sell, the prosecutor must prove the following:
(1) The defendant was illegally in possession of a controlled substance; and
(2) They were aware they were in possession of the substance; and
(3) The defendant was aware the substance they were in possession of was a controlled substance;
(4) The defendant was in possession of a saleable amount of the controlled substance; and
(5) There was sufficient "indicia" of sale to show that the defendant intended to sell the controlled substance.
Penalties For Violating Health and Safety Code Section 11351, 11359 and 11378:
Most Controlled Substances Under Section 11351:
- Imprisonment in a county jail for a period of 2-4 years; and/or
- a fine of up to $20,000; and
- 5 years formal probation.
Marijuana Under Section 11359:
What penalties a person will face for possession of marijuana with intent to sell is determined, first and foremost, by the age of the defendant.
Defendants under the age of 18 who are convicted of possession with intent to sell are guilty only of an infraction, and can only be sentenced to 8-10 hours of drug counseling and 40-60 hours of community service.
Defendant over the age of 18 can be sentenced to the following:
- Imprisonment in a county jail for a period of up to 6 months; and/or
- a fine of up to $500; and/or
- 3 years summary probation.
If, however, a defendant over the age of 18 has prior possession with intent to sell convictions, the defendant was selling to a minor or (if the defendant was age 21 or over) was employing a person age 20 or under to support or effectuate marijuana sales; then the defendant may be sentenced to a period of 16 months, two years or 3 years in a county jail.
Possession of Methamphetamine For Sales Under Section 11378:
- Imprisonment in a county jail for 16 months, two years or three years; and/or
- a fine of up to $10,000; and/or
- 5 years formal probation.
The sentencing for possession with intent to sell for all drugs other than marijuana (excluding cases of selling to minors or employing minors or adults under the age of 21) is controlled by California Penal Code section 1170(h)(all prison sentences to be served instead in county jail). While sentences in excess of one year are generally served in a state prison, under this section; sentences are to be served in a county jail instead. However, if the defendant has prior convictions for serious or violent felonies, must register as a sex offender or receives a sentence enhancement under Penal Code section 186.11; then the defendant's sentence must be served in a state prison.
- The defendant was not aware that they were in possession of the drugs;
- While the defendant knew that they were in possession, they were not aware that what they were in possession of was illegal drugs;
- The defendant was caught with the drugs as the result of an illegal search and seizure; and
- The "indicia" that the drugs possessed were for purposes of sale were insufficient to prove that the drugs were actually possessed for purposes of selling them. In this case, the defendant will likely be convicted of the lesser crime of possession for use.
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