Orange County Possession for Sale of a Controlled Substance

One client was stopped at a motorcycle shop. He had locked himself in the bathroom and was using drugs inside, and he refused to come out until police got him out. When officers searched his motorcycle, they found seven small individual baggies of heroin.

Nobody disputed that the drugs were his or what they were. The district attorney charged possession for sale, and the only basis for it was the number of bags.

His explanation was simple. His dealer sold the heroin already bagged, and he bought it that way so he could use one at a time. Everything else in the case supported him. There was no scale, no extra cash, and no text messages. And he had been caught in the act of using, which is about the strongest evidence there is that the drugs were for himself.

The office got him into a drug rehabilitation program, and that combination of facts and treatment is what moved the case.

The lesson for anyone in a similar spot: the number of bags is not the whole case. When the officer’s opinion rests on packaging alone, everything missing from the picture becomes the defense.

This is the fact that drives most possession for sale defenses in this office, and it is the one the charge itself ignores.

The charge treats a person as a seller. The more accurate picture, very often, is a person with an addiction who sells a little to pay for it. Proving that changes what the DA is willing to offer.

The way to prove it is to get the client into treatment early, often before the first court date, and put that record in front of the prosecutor. On one methamphetamine case, the office placed the client in detox, then a short residential program, then intensive outpatient treatment, while the case was still being reviewed for filing. The felony possession for sale charge under 11378 was reduced to a misdemeanor simple possession under HS 11377. That case is covered in more detail on the drug crimes page.

When a straight reduction is not available, there is a middle path this office uses. Bryan calls it a dual plea.

• The client pleads to two charges: the possession for sale felony and a misdemeanor simple possession under HS 11350 or 11377, depending on the drug.
• The client completes probation without new problems.
• At the end, the sales felony is dismissed. What remains on the record is the misdemeanor.

It requires the DA to agree, and it requires the client to show up to the deal already in treatment. It is not offered to people who have done nothing yet.

Possession for sale is usually described as carrying “2, 3 or 4 years in state prison.” That is not how these sentences work for most people.

Both statutes are sentenced under Penal Code 1170(h). The term is served in county jail, not state prison, unless you have a prior serious or violent felony or one of the enhancements described below. The range is 2, 3 or 4 years for 11351, and 16 months, 2 or 3 years for 11378.

The judge can also split that sentence between custody and supervision. In Bryan’s example:

• The judge imposes a 2 year term under 1170(h).
• It is split into 1 year in custody and 1 year of mandatory supervision through the Orange County Probation Department.
• With the half-time credit most people earn in county jail, the actual custody is about 6 months.

On a first offense, the realistic outcomes generally fall into one of these:

Bail on a possession for sale arrest in Orange County generally starts around $20,000 and goes up with the quantity and the drug. Most families assume that once they come up with the money, their relative comes home. On these cases, that often is not true.

Police frequently ask for a hold under Penal Code 1275.1. The theory is that any money posted for bail may be drug proceeds. Once that hold is in place, no bail can be posted, even if the amount is only $20,000 or $25,000, until a judge holds a hearing on where the money came from.

At that hearing:

• The bail bondsman has to show the court the source of the funds.
• The source has to be documented. Cash will not work.
• The money has to come from a legitimate source, which in practice usually means family members with paychecks and bank records.

If your family member was arrested and you are trying to post bail, gather the paperwork before you call the bondsman. Pay stubs and bank statements for whoever is putting up the money will be needed at the hearing.

Two things damage more possession for sale cases than anything that happens later in court.

Letting the police search your phone without a warrant. Text messages are one of the strongest pieces of intent evidence the DA can have. If you agree to a search, the officer does not need to get a warrant, and whatever is on the phone is now part of the case.

Talking to the police. That includes before an arrest, and it includes after you have been read your Miranda rights. A statement offered to explain things, such as how much you use or where the drugs came from, is often exactly what the officer needs to support an opinion that you were selling.

If you are still out of custody and expect contact from police, the only thing to say is that you want a lawyer.

Proposition 36 took effect in December 2024. Most of the attention went to theft and simple possession, but it also changed drug sales cases.

• Fentanyl weight enhancements now start at 1 ounce, down from 1 kilogram, under HS 11370.4, and that time must be served in state prison.
• Being armed during a drug sale now sends the gun enhancement to state prison instead of county jail.
• A new 4 year enhancement applies when selling or furnishing drugs causes great bodily injury.
• A formal warning on the record. Under HS 11369, anyone convicted of certain sales offenses is told by the court that dealing drugs is deadly and that if someone dies, they can be charged with murder. That warning can be used against them in a later case.

Bryan has seen that warning given in Orange County courtrooms. It has not changed his approach, because a sales plea was already the last resort. What it changes is what the client is agreeing to.

“It doesn’t change my advice. It changes the decision that the client has to make.”

Prop 36 also created a treatment-mandated felony under HS 11395 for simple possession with two or more prior drug convictions. A reduction to misdemeanor possession counts as one of those priors. In this office’s cases, that has not come back to hurt anyone, and the reason is the treatment. A client who gets a reduction and keeps using is a client who picks up the next case. A client who gets a reduction and gets clean usually does not.

Not every client is a user with a few bags. Some cases are serious, and the facts are not in dispute.

One client had a prior sales conviction and a pending possession for sale case in warrant status when police raided his home. They found well over 50 grams of fentanyl, firearms, a grenade, and more than $250,000 in cash, which was seized. The case was filed at the Central Justice Center in Santa Ana. The arrest came before Prop 36, so the new fentanyl enhancement and the 11369 warning did not apply.

The district attorney offered 7 years in state prison, followed by 3 years of parole.

The case took more than a year and a half. In the end, the gun enhancements were stricken and he was sentenced to 4 years under 1170(h), served in county jail, of which he would serve about half, with no parole afterward.

That outcome came from mitigation: building a full picture of the person and putting it in front of the prosecutor, pretrial after pretrial.

“Every case needs mitigation, even the hardest of the hard cases.”

The most common mistake Bryan sees from less experienced lawyers is the opposite. They see a large amount and every sign of sales, decide the case is hopeless, and recommend the DA’s first offer. Being caught with the evidence does not mean the first offer is the only one.

When this office talks about a reduction, it means moving a felony sales charge down to a misdemeanor simple possession. Some cases will not get there.

If the case involves 50 grams or more of a drug, together with baggies, scales, large amounts of cash and pay-owe sheets, it is probably not getting reduced to a misdemeanor. That does not mean nothing can be done. The fentanyl case above was never going to be a misdemeanor. It went from 7 years in state prison with parole to about 2 years in county jail with none. On cases like that, the work is on custody time, enhancements and the terms of the plea.

Lab testing rarely holds these cases up. Officers run a presumptive field test at the scene to identify the drug, and that result carries the case through the preliminary hearing. Full lab testing at the Orange County Crime Lab usually only happens if the case has not settled by then.

A possession for sale conviction is treated very seriously in immigration law and can lead to deportation. That does not change how this office defends the case, because the goal is always the best available result, including going to trial if that is what it takes to move the DA.

What it adds is another layer of mitigation. The office brings in an immigration attorney to explain, in writing, what a sales conviction would mean for the client’s status, and puts that in front of the prosecutor as a reason to resolve the case on a different charge.

In this office’s experience, three agencies bring in the most possession for sale cases:

• Santa Ana Police Department, with cases heard at the Central Justice Center
• Orange County Sheriff’s Department, which polices many cities across the county
• Costa Mesa Police Department, with cases heard at the West Justice Center  

The office is in Santa Ana and handles possession for sale cases at every Orange County courthouse.