Possession For Sale of a Controlled Substance Prosecution - Health and Safety Code Section 11351
To prove that the defendant is guilty of a violation of Health and Safety Code Section 11351, the prosecution must prove that:
- The defendant unlawfully possessed a controlled substance;
- The defendant knew of its presence;
- The defendant knew of the substance’s nature or character as a controlled substance;
- When the defendant possessed the controlled substance, he/she intended to sell it;
- The substance was indeed a controlled substance; AND
- The controlled substance was in a usable amount.
Possession means that a person has physical custody and control over the substance. The prosecution can satisfy this burden by proving that the substances were in a vehicle or home that belongs to you. Even if you did not personally buy the substances, or were not using the substances, the prosecution can still charge you with felony possession.
The prosecution does not need to prove that the defendant knew which specific controlled substance he/she possessed, only that he/she was aware of the substance’s presence and that it was a controlled substance.
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.
Selling illegal drugs means exchanging the controlled substance for money, services, or anything of value. Typically, the prosecution will have to prove that you possessed a usable amount of the controlled substance.
A usable amount is a quantity that is enough to be used by someone as a controlled substance, but 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.
