Possession with the intent to sell HS 11351

Have you been charged with possession with intent to sell HS 11351? Whether you need legal representation from an experienced criminal defense lawyer, or simply have a few questions, contact Gressley & Donaldson for a consultation today.

In 2022 in California, drug arrests made up over a quarter of the total number of arrests. While it’s important that we continue to lower the number of incidents concerning illicit drugs in our communities, it’s also important that we maintain a level of transparency in the legal system when making accusations of drug crimes.

As a law firm dealing primarily with drug and alcohol-related charges, we’ve seen countless cases of police abuse of power, unlawful arrests, and privacy violations in order to secure an easy conviction. In other scenarios, we’ve witnessed the prosecution attempt to convict innocent parties of possession with the intent to sell who were simply in the wrong place at the wrong time. In many of these cases and more, we were able to secure our clients a lesser conviction or even a full acquittal.

To learn more about the defensive strategies Gressley & Donaldson employs on behalf of our clients charged with possession with the intent to sell, take a look at the sections below, or contact us for a consultation.  

Definition of Possession For Sale of Narcotics HS 1135

The California Health and Safety Code says that a person is in violation of possession for the sale of narcotics who:

“transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance specified in subdivision [or]…any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state”

The wording here is repetitive and requires some background knowledge of controlled substances and drug crimes, but essentially, a person is guilty of violating California HS 1135 when they become involved in the sale of some types of drugs and they have no legal right to do so. This includes importing, transporting, distributing, or even giving away certain drugs when the quantities are large enough. It’s also important to note that even offering to do these things is considered a violation of HS 11351.

What types of drugs are included under California HS 11351?

With the exception of marijuana and methamphetamine, nearly all types of recreational drugs are included under possession with the intent to sell HS 11351. This includes:

  • Illegal drugs such as cocaine, GHB (also known as mickeys or date rape drugs), ecstasy, heroin, PCP, and hallucinogenic drugs such as psilocybin or LSD
  • Prescription drugs such as codeine, oxycontin, or other prescription opiates

Remember that the prosecution will be looking for large quantities of these types of drugs and proof that you sold, or intended to sell them. Simply being in possession of small amounts for personal use is not enough to convict someone under HS 11351.

What does it mean to possess a controlled substance for sale?

The first part of a possession with intent to sell charge is the term “possession”. In California law, there are many types of possession defined when relating to drug charges. In order to convict someone of HS 11351, the prosecution will have to prove that they had some level of possession of a drug and some level of involvement (or intention to become involved) with the illegal sale of that drug.


In the context of possession with the intent to sell HS 11351, there are 3 specific types of possession that the prosecution can point to for a conviction. These are:

  • Actual Possession: Actual possession refers to physical and direct control over the narcotics. In cases of actual possession, the individual has the drugs on their person, such as in their pockets, backpack, or any other immediate area within their physical control.
  • Constructive Possession: Constructive possession is a legal concept that extends beyond physical possession. It implies control and dominion over the narcotics, even if the person is not in direct physical contact with the drugs. Constructive possession can be established if the person has the ability and intention to exercise control over the narcotics.
  • Joint Possession: Joint possession occurs when two or more individuals share control and dominion over the narcotics. In such cases, each person involved may be held responsible for the possession of the drugs.

As you can see, it’s not necessarily required that an individual have the drugs in their possession. Let’s say that two people are in a partnership to sell large amounts of cocaine. The supply is located in a storage unit to which both partners have keys. If a police officer has a warrant for the storage unit and finds the supply, both partners can be charged with HS 11351 because both partners have control over the supply and both take part in the sale.


If an individual isn’t aware of the existence of the drugs in question or isn’t aware that the drugs are illegal to possess, they will likely not be convicted of possession with the intent to sell HS 11351. Below are a few important distinctions when it comes to knowledge in a possession with intent to sell case:

  • Knowledge of Possession: The prosecution must demonstrate that the accused had knowledge of possessing the narcotic substance. This may involve proving that the defendant had physical control or dominion over the drugs.
  • Knowledge that it is a Controlled Substance: The prosecution needs to establish that the defendant was aware that the substance in their possession was a controlled substance. This knowledge is crucial in distinguishing between legal and illegal substances.
  • Quantity of the Drug: The amount of the narcotic in possession is another factor. Prosecutors may present evidence indicating that the quantity of the drug was substantial, suggesting an intent to sell rather than personal use. Larger quantities are often associated with the intent to distribute.
  • Intent to Sell: One of the key elements in a possession for sale case is proving the defendant’s intent to sell the narcotics. Intent can be inferred from various factors, such as the quantity of drugs, the presence of packaging materials, large sums of cash, or other indicators commonly associated with drug trafficking.

When it comes to Health and Safety Code 11351, the elements of the crime need to all be present. If you possess an illegal drug, it needs to be a significant amount in order to be considered a sellable quantity. If the quantity is there, the prosecution still needs to prove that you had knowledge that the drugs existed and that they were in your control.

How Does This Differ From Possession For Personal Use?

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Possession for sale of controlled substances, as outlined in HS 11351, differs significantly from possession for personal use. While possession for personal use typically involves a smaller quantity of drugs intended for individual consumption (often referred to in courts as a “usable amount”), possession for sale suggests an intent to distribute or sell the controlled substances. Several factors contribute to establishing this intent, including the quantity of the controlled substance in possession. Larger quantities often raise suspicion of potential distribution, and the presence of packaging materials, such as baggies, can further support the case for intent to sell.

Additionally, the presence or absence of drug paraphernalia is a crucial consideration. Drug paraphernalia, such as scales, packaging materials, or items associated with distribution, can serve as evidence supporting the claim that the defendant is guilty of carrying out drug sales.

Being under the influence of a controlled substance at the time of arrest can also be a factor. While being under the influence may not directly prove intent to sell, it can contribute to the overall context of the situation and be considered part of the evidence in a legal proceeding, especially in proving that the individual charged was at least aware of the existence of the drugs and that they were in their control.

What Does a Prosecutor Need To Prove Intent To Sell?

While the specific examples of evidence will vary, the prosecution will essentially need to prove 2 things in order to get a possession with intent to sell HS 11351 conviction:

  • That you were in control of, or tried to acquire, a large amount of drugs
  • That you gave away, transported, imported, sold, or attempted to sell, the drugs in question

The prosecution will use a variety of methods in attempting to secure their arguments. This could be any combination of witness testimony, recording of phone conversations or text messages, or even the use of undercover operations. It’s important to remember that the prosecution will need a warrant for all of these actions and will need to adhere to a strict set of guidelines and procedures or else they may risk securing the conviction.

What are the best defenses to 11351 HS?

Possession with the intent to sell HS 11351 is a very serious charge that requires an effective and airtight defense strategy. When our law firm takes on clients who have received a possession with the intent to sell HS 11351 charge, we begin by meticulously examining all pieces of evidence on both sides and carefully walking through every detail (no matter how minor it may seem at the time) of the arrest. Doing so opens up opportunities for us to diffuse baseless accusations made by the prosecution. Below are a few common defenses our firm has used to successfully defend against a possession with the intent to sell HS 11351 charge.

Police Officer’s Failure to Follow Constitutional Procedures

A police officer can’t search you or your property without cause or a warrant. The Fourth Amendment protects individuals from unlawful search and seizure which means unless the police officer obtains a warrant or has probable cause, they are not allowed to search your property or person. When law enforcement decides to ignore our client’s Fourth Amendment rights with an illegal search, it opens us up to the ability to file a motion to suppress evidence. If the motion is granted, all evidence obtained illegally will not be allowed to be used as evidence against you.

Momentary Possession

Earlier in this guide, our firm outlines three types of possession that may be used to convict you – actual, constructive, and joint possession. However, if the supply of drugs in question falls into your possession without you fully realizing it, without your explicit intention or consent, or in such a short amount of time that there are limited resources to get rid of it, the law says that you can’t be convicted in violation of California Health and Safety Code 11351.

For example, let’s say that you were helping a friend move into a new apartment. While carrying a few boxes from the moving truck to the new apartment, a police officer witnesses several large baggies of heroin fall out of the box. In this situation, our firm would be able to argue that you were only in momentary possession of drugs and therefore, you can’t be held responsible for their transport.

Lack of Control or Possession

Similarly to momentary possession, our firm might try to prove that you had a lack of control of the drugs. Examples of this could be:

  • A grandmother who’s grandson is selling LSD out of her home
  • A landlord who’s tenet is using their property as a drug facility
  • Someone giving a ride to a coworker who has a backpack filled with bags of heroin and large sums of money
  • A tenet who has asked their roommate repeatedly not to sell cocaine out of their shared apartment

The important thing to demonstrate in court is that the individual had limited control of the drugs in their possession. If the individual tried multiple times to get rid of the drugs but was unsuccessful, or if the individual was unaware of the level of drugs in their possession, you may be able to avoid a conviction.

Lack of Awareness of Knowledge

If you don’t know about the drugs in question, then it goes without saying that you can’t be held responsible for taking part in their sale.

Valid Prescription

One of the more common scenarios our firm has seen regarding drug cases is when a client is charged with possession with the intent to sell regardless of whether they had the right to the drugs in question. In these types of cases, we would aim to prove that you had a valid prescription.

Lack of Intent to Sell

If there isn’t enough evidence to prove that there was an attempt to sell, there won’t be any lawful way of convicting them. While a judge might still find you guilty of simple possession, unless there were large quantities of drugs in your possession with verifiable proof of your attempt to sell them, the prosecution won’t have a case to work with.


Though rare, there are cases where law enforcement attempts to convince an individual to commit a crime when they had no intention of committing that crime in the first place. When this happens, a case for entrapment can be made, and may result in not only a full acquittal but may also result in serious penalties for the arresting officer.

Insufficient Evidence

Lastly, in all cases of HS 11351 violations, sufficient evidence must be presented by the prosecution, who has the burden of proof. They must show it through verifiable evidence and not hearsay.

What Are The Penalties For Possession For Sale?

Possession with the intent to sell HS 11351 is a serious felony (which cannot be reduced to a misdemeanor) that comes with a wide range of penalties that can become even more serious if certain aggravating factors are present. Typical minimum penalties received by those convicted of possession with intent to sell:

  • First Offense: 3 to 5 years in county jail, and/or felony probation, and/or up to a $20,000 fine.
  • Second Offense: 6 to 8 years in county jail and/or up to a $20,000 fine
  • Third Offense: 9 to 11 years in county jail, and/or up to a $20,000 fine

Again these are just the the minimum penalties when no other aggravating factors contribute to sentencing. The sentences become much harsher when a person sells drugs to a minor, a pregnant person, a person who is actively undergoing recovery, or if the drugs were sold near a homeless shelter or recovery center. If it’s discovered in court that you went across multiple county lines, three additional years will be added to the sentence.

Lastly, the larger the supply of seized drugs, the more harsher the sentence is likely to be. For example, if the amount of the drugs seized surpasses 80 kilos, the defendant can face up to twenty-five years in jail and/or a $8,000,000 fine.

Frequently Asked Questions

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Is 11351 HS a felony or misdemeanor?

Violation of HS 11351 is generally considered a felony in California.

How long do you go to jail for selling drugs in California?

The penalties for selling drugs in California vary based on factors such as the type and quantity of drugs involved, prior criminal history, and other circumstances. Penalties can range from several years to life imprisonment, depending on the severity of the offense.

What is the difference between 11352 and 11351?

HS 11351 and 11352 both pertain to drug offenses, but they address different aspects. HS 11351 involves possession for sale of specified controlled substances, while HS 11352 deals with the transportation, sale, or distribution of controlled substances. The key distinction is that 11351 focuses on possession for sale, while 11352 encompasses a broader range of activities related to the distribution of drugs.

What is a “useable amount”?

Possession of a useable amount of a controlled substance typically refers to having a quantity sufficient for consumption or sale. The term “useable amount” may vary depending on the specific drug and its intended purpose. The presence of a useable amount often plays a role in determining charges and the severity of penalties.

Hire an effective lawyer with experience in possession with intent to sell HS 11351

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Are you feeling overwhelmed by the penalties that come with a possession with intent to sell conviction? Our firm is here to help! Contact Gressley & Donaldson for a consultation.

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We understand that being accused of a crime is one of the most challenging times of your life. Rely on us to advocate for your rights and to give you the defense you deserve.