What is possession for sale?
In California, a person may be arrested, tried and convicted for possessing for sale or for purchasing for purpose of sale, controlled drugs. This is also more commonly referred to as drug trading or drug dealing. It is penalized under section 11351 of the California Penal Code.
The punishable act here is not only the possession of controlled substances without authority or without prescription, but also possessing the controlled substance with the intention of trading in it, offering it for sale, selling, exchanging and gaining a profit or income from the sale.
Please note that the act penalized in the charge of possession for sale is the unlawful possession of drugs and there is a requirement to prove the intent to sell the drugs that were found in possession of the person accused. There is no requirement to prove that an actual sale occurred. This charge penalizes the act of possessing drugs and the intent to sell it even if no sale has yet occurred.
What is purchase for purpose of sale?
In the charge of purchase for purpose of sale, the act penalized is the act of purchasing drugs and the accompanying intent to sell the controlled substance. Possession is presumed in this charge of purchasing drugs. It is penalized under section 11351 of the California Penal Code. The penalty for this felony is the same as possession for sale.
What must the prosecutor prove to secure a conviction for the charge of possession for sale?
The prosecutor must prove first that the accused person unlawfully possessed a controlled substance. The accused knew it was a controlled substance and the accused knew that he possessed a controlled substance.
The prosecutor must prove intent to sell it or intent to distribute it to others for them to sell it. By “sell” it means that the drugs will be exchanged for money, services or anything of value. The prosecutor must show that the controlled substance was of a usable amount.
Why would a prosecutor charge a person for possession for sale instead of simple possession?
There are factual circumstances that lead a prosecutor to charge a person with possession for sale instead of simple possession.
- The volume of drugs recovered from the suspect largely determines intent. That is, if a person is possessing controlled substances for personal use, that person would not need to possess a large volume of drugs. Thus, having possession of a large quantity of drugs gives rise to the belief that the drugs are intended for sale or distribution.
- The acts that the accused committed usually show intent to distribute or sell drugs. For instance, if the accused accepts money in exchange for drugs then, this circumstance gives rise to the belief that there is intent to sell the drugs.
- If the drugs found on the person or possession of the accused is packed in small volumes, this evidences intent to distribute the drugs in retail trade.
- If along with the drugs, the accused is found in possession of scales, small plastic sachets or baggies, or money (usually in small bills), these circumstances shows intent to sell the drugs that were found in his or her possession.
- If there are persons or police informants who have signed affidavits or statements stating that they had purchased drugs from the person found in possession of the drugs, the belief that the accused is selling or possessing drugs for purposes of sale or distribution arises.
Sometimes, prosecutors charge the crime of possession for sale but during plea bargaining, they are willing to reduce the charge to simple possession provided the accused pleads guilty to simple possession.
What’s the difference between possession for sale and drug trafficking?
The difference between possession for sale and drug trafficking is the difference between a small-time street corner drug-dealer who sells to support his own drug habit on one hand, and suppliers who sell drugs wholesale, in large volumes, to other drug dealers. Drug trafficking is mass distribution, possession for sale is retail.
What are the penalties for conviction of possession for sale?
There is a fine of up to $20,000. There may be imprisonment of 1 year in county jail or 2-4 years in state prison. Probation of 3-5 years may be available. Community service will be at the discretion of the court. A person convicted of this charge is not eligible for a deferred entry of judgment sentence. Persons convicted of this charge are not eligible for a diversion sentence. The good news is that a conviction for this felony will not count as a “strike” under the three-strike rule.
What are other penalties for conviction of possession for sale?
This is a felony and the conviction for felony often brings along civil penalties such as losing the right to possess a firearm, losing the right to vote, losing the right to sit on a jury, losing the right to hold a public office.
Other civil penalties include the requirement to give a DNA sample to law enforcement, registration as a drug offender. If the convicted party is not a citizen of the US (meaning, the convicted person is a permanent legal resident), they can be deported from the US. If they try to apply for admission back into the US, they are inadmissible.
A conviction for possession for sale will subject the person accused and convicted to removal proceedings. US immigration laws prohibit admission to persons who have been convicted of crimes of moral turpitude. These class of crimes are morally reprehensible, shocking to the morals.
What other enhancements are there to the penalty for possession for sale?
There are additional penalties called “enhancements” if certain facts are proved. For instance, if the seller transported the drugs from one county to another, the penalties are increased from 3-5 years to 3-9 years.
If the possession for sale involved hiring minors to sell or distribute controlled substances to minors in high schools, in parks or other places where minors are likely to congregate, the penalty is also higher. When the crime of possession for sale is committed within 1000 feet of schools or playgrounds, or places where there are school-related programs and during the operational hours of those establishments, one to two years of imprisonment is added to the penalty.
Are you facing a charge of possession for sale of a controlled substance? Do you wish to obtain legal advice or legal representation? Do you wish to know the consequences of pleading guilty? Do you need assistance in pleading guilty to a lesser offense? Do you need the services of an experienced criminal defense lawyer? Call Ramiro J. Lluis Law Office.