A drug case turns on two questions: what the police found, and how they found it. A possession for sale charge rests on inferences from quantity, packaging and phones. The search behind it rests on a warrant, a stop or a consent that may not survive review.
This page is general information about California law, not legal advice. For the full range of felony work, see the felony defense hub.
Possession for sale: HS 11351 and HS 11378
Health and Safety Code 11351 covers possession for sale of heroin, fentanyl and other opiates, cocaine and other listed narcotics. HS 11378 covers methamphetamine and other listed stimulants and depressants. Both are straight felonies that cannot be reduced to misdemeanors under Penal Code 17(b).
Probation is available in many cases. Since January 1, 2022, Penal Code 1203.07 bars probation only for offenses under HS 11380 that use a minor; the former quantity and prior-conviction bars were repealed by Senate Bill 73.
Transportation and sales: HS 11352 and HS 11379
HS 11352 makes it a felony to transport, sell, furnish, administer or give away the substances covered by HS 11351, or to offer to do so. HS 11379 does the same for the HS 11378 substances.
Cultivation and manufacturing
Cannabis is treated separately. After Proposition 64, cultivating more than six plants (HS 11358), possessing cannabis for sale (HS 11359) and selling or transporting it for sale (HS 11360) are misdemeanors for most adults.
Felony exposure remains for certain serious priors, Penal Code 290 registrants, repeat offenses, sales involving minors, cultivation that causes environmental harm, and importing into the state or transporting for sale out of the state more than 28.5 grams of cannabis or four grams of concentrate.
Enhancements that change the case
Weight enhancements under HS 11370.4 add three to twenty-five years for large quantities of heroin, cocaine and, since Proposition 36 (2024), fentanyl, and three to fifteen years for methamphetamine.
Sales near a school (HS 11353.6), using or selling to a minor (HS 11353 and HS 11380), being personally armed during a drug felony (Penal Code 12022(c)) and a prior felony conviction for using a minor (HS 11370.2) also raise exposure.
01How a possession for sale case is built, and where it can fail
Possession for sale is rarely proven by a confession. It is inferred from quantity, packaging, scales, cash, pay-owe notes and text messages, usually through a narcotics officer's opinion testimony. Many of those facts have an innocent explanation, and the officer's opinion is open to cross-examination.
Possession itself is an element. Drugs in a shared car or apartment may not be attributable to the person charged. The prosecution must prove knowledge that the substance was present and knowledge of its nature. The laboratory report must hold up, and the analyst can be called to testify.
02Search and seizure defenses
Most drug cases begin with a search. Pelta Law reviews the warrant, the traffic stop, the pat-down, the consent form and the body camera footage against the Fourth Amendment and California law.
A motion to suppress under Penal Code 1538.5 asks the court to exclude unlawfully obtained evidence. Without that evidence the prosecution may be unable to proceed.
Issues that recur in Bay Area drug cases:
- A traffic stop prolonged beyond its purpose to wait for a narcotics dog, which Rodriguez v. United States does not permit without independent suspicion.
- Consent given after an unlawful detention, or consent that did not extend to the container or room that was searched.
- A warrant affidavit with omissions or false statements, tested at a Franks hearing.
- An unnamed informant whose reliability the defense may test through a Hobbs motion to unseal the affidavit.
- A phone searched without a warrant, which Riley v. California and the California Electronic Communications Privacy Act (Penal Code 1546 and following) generally forbid.
- A search that went beyond the places or items the warrant described.
03Proposition 47 and Proposition 36
Proposition 47 (2014) made simple possession of most controlled substances a misdemeanor under HS 11350 and HS 11377, except for people with certain serious or violent priors or a Penal Code 290 registration requirement. Possession for sale, sales and manufacturing were not affected and remain felonies.
A person with an older felony conviction for simple possession may petition under Penal Code 1170.18 to reduce it to a misdemeanor. The petition is not available to a person with a prior conviction listed in Penal Code 667(e)(2)(C)(iv) or an offense requiring Penal Code 290 registration.
04Diversion: PC 1000 and mental health diversion
Penal Code 1000 pretrial diversion applies to personal-use offenses such as simple possession, not to possession for sale, sales or manufacturing. Eligibility generally requires no drug conviction within the prior five years, no violence and no evidence of sales.
The charge is dismissed on completing a program of twelve to eighteen months.
Mental health diversion under Penal Code 1001.36 is broader. It applies to most felonies, including possession for sale and sales, where a qualifying mental health disorder was a significant factor. The court may suspend the prosecution for up to two years and dismiss the charge on completion.
05If a prior strike is on the record
A drug felony charged against a person with a prior strike is a different case, with doubled terms and a different plea calculus. That analysis, and the Romero motion to dismiss a prior strike, is covered at Three Strikes and Romero motions.
06San Francisco criminal courthouse
In San Francisco, criminal cases are heard at the Hall of Justice, 850 Bryant St.
07For referring attorneys
Pelta Law accepts referrals, second opinions and co-counsel arrangements on drug felonies and misdemeanors. A conflict check comes before any case detail is shared. Details are on the For Attorneys page.
08Contact Pelta Law
Call 415-963-1152 or email marc@peltalaw.com. Office: 1390 Market Street, Suite 200, San Francisco. Appointments by arrangement. Do not send facts of your case by email; a conflict check comes first, and contacting the office does not create an attorney-client relationship.
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