Possession vs. Possession With Intent to Sell in California
While California is one of the more progressive states in terms of drug crime legislation, the state still punishes possession of illegal narcotics. Unlike Colorado, California has not “defelonized” mere possession. Moreover, if the prosecutor can prove possession with the intent to distribute, defendants face much more severe penalties including significant prison time. But what must a prosecutor show in order to demonstrate “intent to sell?” And how can you defend against such a charge if the police have simply arrested you with a quantity of drugs? Continue reading for a discussion of how prosecutors prove intent to distribute, and contact a dedicated Oxnard drug crime defense attorney with any questions about how to deal with an arrest, criminal charge or record of conviction.
Proving possession with intent to sell
California Health and Safety Code 11351 makes it a felony to possess certain controlled substances with the intent to sell the controlled substance. To convict you, the prosecutor must prove:
- You unlawfully possessed a controlled substance;
- You knew of its presence;
- You knew it was a controlled substance;
- When you possessed the substance, you intended to sell it; AND
- The substance was in a usable amount.
Possession with intent to sell is punishable by two, three, or four years imprisonment, on top of a fine of up to $20,000. Defendants charged with mere possession, on the other hand, may be eligible for drug diversion programs and other alternative resolutions rather than jail time. Prosecutors will often try to charge defendants with a section 11351 violation even where the defendant only intended to keep the narcotics for personal use. To do so, they need to prove you actually intended to sell. However, it is important to understand that they can prove intent using circumstantial evidence even without your direct admission of intent.
Contrary to popular belief, the prosecutor does not have to arrest you in the midst of a drug sale in order to charge you with intent to sell. Having a particularly large quantity of drugs may be evidence of intent to distribute, but it is also not strictly necessary. “Intent to sell” can be proved by inference in a variety of ways. For example, the prosecutor may show:
You have the drugs separately packaged into smaller sizes, such as in multiple small baggies, or you have items like small bags and scales present;
You have significant amounts of cash on hand, either on your person or in your house, especially if the cash is in smaller denominations;
Eyewitness testimony or police surveillance demonstrates that many people have entered and left your house after short time periods, or approached you on the street.
If you can demonstrate that you did not have the accompanying materials necessary to sell, that other circumstantial evidence is faulty, and the prosecutor has no direct evidence of a sale, you may be able to defend against the intent to sell enhancement. A skilled criminal defense attorney can help you poke holes in the prosecutor’s evidence relating to intent to sell and help you reduce the charges to mere possession.