Legal Definitions of Felony Drug Offenses

Legal Definition of Possession for Sale of a Controlled Substance

In order to prove that a defendant committed the crime of possession for sale of a controlled substance, the prosecution must prove that:

• The defendant possessed a controlled substance.
• The defendant knew that he or she possessed the substance.
• The defendant knew that what he or she possessed was a controlled substance.
• At the time that defendant possessed the controlled substance, he or she intended to sell it.

“Intended to sell” includes an intent to exchange the substance for money, services or anything of value.

To prove that a defendant “possessed a controlled substance,” the prosecutor does NOT have to prove that the defendant touched or held it. If someone has control over an item, either personally or through another, then he or she possesses the item.  Furthermore, it is possible for more than one person to possess the same item.

The prosecution does not have to prove that the defendant knew which particular controlled substance he or she possessed, as long as they can prove that she or she knew that it was a controlled substance.  Also, if the defendant did know that he or she possessed a particular substance, it is not a defense to claim that he or she was unaware that this substance was “controlled.”

See CALCRIM 2302

Example: If you are in possession of cocaine, it is not a defense that you genuinely, but mistakenly believed it was methamphetamine.

Example: If you knowingly possess methamphetamine, it is not a defense to claim that you were unaware that methamphetamine was a controlled substance.

Sale, Furnishing or Transportation for Sale of a Controlled Substance

• Health and Safety Code §11352 – sale, furnishing or transportation for sale of cocaine, heroin, opiates or fentanyl
• Health and Safety Code §11370 – sale, furnishing or transportation for sale of methamphetamine, ecstasy (MDMA), psilocybin (psychedelic mushrooms) or LSD
• Health and Safety Code §11379.5 – sale, furnishing or transportation for sale of phencyclidine (PCP)

Legal Definition of Sale, Furnishing or Transportation for Sale of a Controlled Substance

This crime requires proof that:

• The defendant sold, gave away or administered a controlled substance, OR transported a controlled substance with the intent to sell it or have someone else sell it.
• The defendant knew that he or she possessed the substance.
• The defendant knew that what he or she possessed was a controlled substance.

See CALCRIM 2300

Manufacturing of Methamphetamine – Health and Safety Code section 11379.6

A person is guilty of this offense if he or she:

• Engaged in the manufacture, compounding, processing or preparation of a controlled substance using chemical extraction or chemical synthesis, and
• Knew of the substance’s nature or character as a controlled substance.

Completion of the manufacturing process is not required.  It is enough for the prosecution to prove that a defendant participated in the beginning steps of the manufacturing process.  The chemical processing of a non-controlled substance can be punished under this section, if the prosecution can prove that the defendant knew that the chemical would be used to make a controlled substance.

See CALCRIM 2330

Health and Safety Code section 11370.1 – Possession of a Controlled Substance and a Loaded Firearm

Simple possession of a controlled substance may be charged as a felony if the prosecution can prove that the defendant was in simultaneous possession of the controlled substance and a loaded firearm.  To prove a violation of Health and Safety Code section 11370.1, the prosecution must prove that:

• The defendant possessed a controlled substance.
• The defendant knew that he or she possessed the substance.
• The defendant knew that what he or she possessed was a controlled substance.
• The defendant knowingly possessed a loaded firearm at the same time that he or she possessed the substance.

Possession of a Controlled Substance

• Health and Safety Code §11350 – possession of cocaine, heroin, opiates or fentanyl
• Health and Safety Code §11377 – possession of methamphetamine, ecstasy (MDMA), psilocybin (psychedelic mushrooms) or LSD

An Experienced Advocate on Your Side

If you are under investigation or accused of a crime, you will need an experienced criminal defense attorney to protect your rights and freedom. With more than 19 years of experience in criminal defense proceedings, David Canty provides strategic representation for clients who are facing drug offense charges.

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