Health & Safety Code §11378

Commentary

Possession of a controlled substance for sale is the possession of a controlled substance, such as methamphetamine, with the intent to sell it to another person.

Standard Punishment

One year – if misdemeanor
16 months, 2 years, or 3 years – if felony

Relevant Statutes

Health & Safety Code §11378

Except as otherwise provided in Article 7 (commencing with Section 4110) of Chapter 9 of Division 2 of the Business and Professions Code, a person who possesses for sale a controlled substance that meets any of the following criteria shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code:

(1) The substance is classified in Schedule III, IV, or V and is not a narcotic drug, except the substance specified in subdivision (g) of Section 11056.

(2) The substance is specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) of subdivision (d).

(3) The substance is specified in paragraph (11) of subdivision (c) of Section 11056.

(4) The substance is specified in paragraph (2) or (3) of subdivision (f) of Section 11054.

(5) The substance is specified in subdivision (d), (e), or (f), except paragraph (3) of subdivision (e) and subparagraphs (A) and (B) of paragraph (2) of subdivision (f), of Section 11055.

Standard Jury Instruction

The jury will generally be instructed pursuant to CalCrim 2302, which is summarized as follows

The defendant is charged with possession for sale of methamphetamine, a controlled substance in violation of Heath & Safety Code §11378 .

To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a controlled substance;
4. When the defendant possessed the controlled substance, he intended to sell it or that someone else sell it;
AND
5. The controlled substance was in a usable amount.

Selling for the purpose of this instruction means exchanging methamphetamine for money, services, or anything of value.

A usable amount is a quantity that is enough to be used by someone as a controlled substance. 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.

The People do not need to prove that the defendant knew which specific controlled substance he possessed.

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.

Special Jury Instructions

The following case law may be of benefit in preparing special jury instructions to defend against a possession of controlled substance for sale charge.

“[M]ore than mere presence [of the Defendant] must be shown in order to establish constructive possession [of a controlled substance] . . .”
Authority: Quoted language is from People v. Kolerich, 40 Cal. App. 4th 283, 295..

“[O]nly knowing possession of controlled substances is proscribed” by law. The prosecution must prove beyond a reasonable doubt that the defendant’s possession was a “knowing possession” of a useable substance – more than useless traces or residue – as an element of the crime of possession of a controlled substance since a nonknowing possession of a useable controlled substance is not a crime.
Authority: Quoted language is from People v. Rubacalba, 6 Cal. 4th 62, 66 (1993).

“The essential elements of possession of a controlled substance are
(l) “[D]ominion and control of the substance;
(2) “[I]n a quantity usable for consumption or sale;
(3) “[K]nowledge of its presence; and
(4) “[O]f its restricted dangerous drug character.”
Authority: Quoted language is from People v. Palaschak, 9 Cal. 4th 1236, 1242 (1995).

“In a prosecution for possession of a controlled substance, knowledge of the character of the substance possessed is an essential element of the crime.”
Authority: Exact quotation from People v. Coria, 21 Cal.4th 868, (1999) citing People v. Williams, 5 Cal. 3d 211 (1971).

Proof that the defendant possessed the contraband for the purpose of selling it requires proof of a “specific intent” to sell the contraband.
Authority: People v. Newman, 5 Cal. 3d 48, 54 (1971).

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