Yes. California makes it a crime to agree or offer to sell a controlled substance and then sell or deliver something else in its place, and also to offer a drug while intending all along to hand over a fake. That no real drug changed hands is not a defense to this charge, which can be filed as a misdemeanor or a felony.

The two statutes that cover this

Which statute applies depends on the drug that was offered, not on what was actually handed over.

  • Health and Safety Code section 11355 covers offers involving the drugs it lists by schedule, including heroin and other opiates, fentanyl, cocaine, cannabis, mescaline, and peyote, plus narcotic drugs in Schedules III, IV, and V.
  • Health and Safety Code section 11382 uses the same structure for its own list, including methamphetamine and other listed stimulants, most of the hallucinogens in Schedule I (such as LSD and psilocybin), and non-narcotic drugs in Schedules III, IV, and V.

Each section reaches selling or delivering, or offering or arranging to deliver, “any other liquid, substance, or material” in place of the drug that was offered. Between them, the two sections reach most controlled substances, but each applies only to the schedule entries it names.

What the prosecution has to prove

The jury instructions describe two ways to commit the offense:

  1. A substitute was actually sold or delivered. You agreed, consented, offered, arranged, or negotiated to sell, furnish, transport, give, or deliver a controlled substance, and afterward sold or delivered a substance in its place (CALCRIM No. 2315).
  2. Only an offer was made. You offered to sell or deliver a controlled substance, and when you made the offer you intended to deliver a noncontrolled substance instead. The prosecution does not have to prove you actually had the fake substance (CALCRIM No. 2316).

In People v. McDaniel (1979) 24 Cal.3d 661, the California Supreme Court held that delivering the substitute is not a required element of section 11355. It also held that when the charge rests on an offer to deliver a substitute rather than an actual delivery, the jury must find a specific intent to deliver something other than the drug offered. Neither version requires that a real drug ever existed.

Penalty: a wobbler

Both sections are punishable by up to one year in county jail, or as a felony under Penal Code section 1170(h). An offense punishable either way can be treated as a misdemeanor in the circumstances listed in Penal Code section 17(b), which is why it is called a wobbler. As a felony, the term under Penal Code section 1170(h)(1) is 16 months, two years, or three years in county jail. A person with certain prior serious or violent felony convictions, or who must register as a sex offender, serves an executed felony term in state prison instead (section 1170(h)(3)).

How this differs from an ordinary sale charge

The firm’s sale of a controlled substance page covers sections 11352 and 11379 (sale and transport) and 11351 and 11378 (possession for sale). Possession for sale requires that you actually possessed a controlled substance, in a usable amount (CALCRIM No. 2302). An offer to sell under section 11352 or 11379 does not require that you possessed the drug, but it does require proof that you intended to sell a real controlled substance when you made the offer (CALCRIM No. 2301). Sections 11355 and 11382 fit the opposite situation, where what was delivered, or meant to be delivered, was never the real drug.

In a substitute-substance case, the questions that matter are what exactly was offered, what you intended when you offered it, whether a substitute was actually delivered, and whether the account of the transaction holds up.

What to do next

  • Talk to a lawyer before answering questions about the deal. What you say about what you offered or intended can become evidence of the offer and intent elements.
  • Keep any texts, messages, or other records of the exchange. The exact wording of the offer can matter.
  • Confirm which statute you are charged under, section 11355 or 11382, since the right one depends on the drug named in the charge.

For a substitute-substance charge under section 11355 or 11382, the number for the Law Offices of David S. Chesley is (800) 755-5174.