In California, the Health and Safety Code 11359 criminalizes possession of marijuana for sale. The state legalized the recreational use of marijuana on January 1, 2018. However, the statute only made lawful the possession of marijuana for personal use. Possession of marijuana for sale could lead to criminal charges unless in some situations. The law allows licensed businesses to sell marijuana and possess marijuana for sale. However, they are only required to sell to individuals above 21 years. The selling of medical marijuana is also allowed as long as it is in line with the California statutes. You could face hefty fines and a jail term if the court finds you guilty of possessing marijuana for sale. If you face charges of possession of marijuana for sale, the Long Beach Criminal Attorney can assist you in creating a solid defense against the charges.
The Elements The Prosecutor Must Prove
The prosecutor must provide sufficient evidence to charge you with possession of marijuana for sale. Health and Safety Code 11359 requires that the prosecutor prove the following elements:
- You possessed marijuana
- You were aware that what you possessed was marijuana
- You possessed a usable amount of marijuana
- You intended to sell the marijuana
Under California law, the entire composition of the Cannabis Sativa plant qualifies as marijuana. Therefore, they could charge you with possession of marijuana for sale if you possessed the following:
- The resin extracted from the plant
- Every derivative of the plant
Meaning Of Possession
According to HS 11359, possession occurs in three forms:
- Actual possession
- Constructive possession
- Joint possession
You could be in actual possession of the weed if it is on your person. For example, marijuana could be in your briefcase, pocket, or inside a purse that you are carrying in your person.
You could be in constructive possession of the weed if it is in an area over which you have control or access. You do not require to be in direct interaction with the weed physically for you to be in possession. For instance, you have constructive possession of the drug if marijuana is located in your basement because you have access and control.
You could be in joint possession of the weed if you share possession of the drug with another person. For instance, marijuana could be found in a closet that you share with your spouse. Therefore, you and your spouse could be said to be jointly possessing marijuana.
The prosecutor must provide substantial evidence that you were aware that what you possessed was marijuana, and you were aware of its nature as marijuana. For instance, you could borrow your friend's vehicle without the knowledge that he/she has put marijuana in the vehicle's glove compartment. You cannot face the charges under HS 11359 because you were unaware that the marijuana was in your possession.
For the prosecutor to prove that you were aware of the substance you had in your possession as marijuana, he/she must provide sufficient evidence that you were aware of the exact name of the drug, the drug’s effects, or the chemical composition of the drug. This awareness can be deduced or inferred from your conduct. For instance, you could be driving when you discover that the police vehicle is trying to stop you. You immediately take a mag of marijuana from the glove compartment of your car and try to throw it away. This gesture shows that you were aware that what was in your possession was marijuana.
You Possessed A Usable Amount Of Marijuana
The amount of the weed that you possess should be such that the individual to whom it is intended can consume it as a drug. Traces or residues of the weed that cannot elicit the intended impact of the drug are not enough to satisfy this ''amount'' element of HS 11359.
You Intended To Sale Marijuana
The prosecutor must provide substantial evidence that you possessed marijuana for selling purposes. On the other hand, you cannot face charges under 11359 if you possessed the drug just for your personal use. This is a crucial difference because simple possession of marijuana attracts less severe punishment than possessing marijuana for sale.
Circumstantial evidence often proves the ‘’intent’’ behind your possession of marijuana; the circumstances surrounding your behavior. The factors that could show your intent include:
- How it is packaged
- The quantity of the drug
- Absence or presence of drug paraphernalia
- Whether you are under the influence
The common indicators or factors of sale that indicate an HS 11359 crime include:
- Multiple cell phones
- Receipts and ledgers
- Packaging of the drug in multiple baggies
- Absence of drug paraphernalia
- Weighing scales or any instruments used to separate or measure the drug
Packaging Of The Drug
The packaging of marijuana could be either the most favorable evidence in your favor or the most damning evidence against you. For example, the packaging of marijuana in many small packets could indicate intent to distribute or sell the drug. On the other hand, the packaging of marijuana in one bag combined with other factors; show your intention to use the drug for personal use.
Presence Of Drug Paraphernalia
Drug paraphernalia includes a syringe, a pipe, and other instruments used to consume marijuana. The presence of any of the listed paraphernalia could show your intention to possess the weed for personal use. On the other hand, the absence of any drug paraphernalia in combination with other factors or indicia of sale could show that you did not possess the weed for personal use.
Presence Of Any Instruments Used For Separating, Measuring, and Diluting The Drug
Any instrument like a scale used to separate or measure marijuana can reveal your intent to sell.
Presence Of Other Indicators Of Sale
The presence of receipts, ledgers and many cell phones indicate possession of marijuana for sale. Drug dealers often carry several cell phones to dilute evidence or cover their transactions' tracks. Therefore, possessing several cell phones is incredibly incriminating.
Being Under The Influence
Being in possession and under the influence of marijuana indicates that you used the drug for personal use. However, this does not determine your intent to sell the drug. You could be both the seller and the user of the drug.
Penalties For Possession Of Marijuana For Sale
In California, possession of marijuana for sale without a license is often charged as a misdemeanor offense for most offenders. You could face the following penalties:
- A fine that does not exceed $500
- A jail term that does not exceed six months in a county jail
However, if any of the following is true, California marijuana law imposes felony penalties for HS 11359 after proposition 64:
- You have a previous conviction for one of the severe violent felony crimes, including a sex crime that requires you to register as a sex offender, murder, gross vehicular manslaughter while intoxicated, sexually violent crimes, and sex offenses against a child under 14.
- You possessed marijuana for sale in connection with a knowing sale or attempted to sell to someone under 18.
- You have two or more previous misdemeanor charges for marijuana possession for sale
You could face the following penalties in any of the above cases:
- A jail term of six months, two years, or three years in a county jail
You could qualify for California misdemeanor or summary probation instead of a jail term. If the court grants you probation, you could avoid any jail term for HS 11359. However, you could face certain restrictions that include:
- Searches of your person or property with or without a warrant
- Periodic ‘’progress reports’’ with the court
- Community service or community labor
- Payment of restitution
- Submission to drug testing
- Participation in individual or group therapy
You do not qualify for drug diversion instead of a jail term for possession of marijuana with intent to sell. The courts only allow drug diversion for the cultivation of marijuana for personal use or simple possession of large amounts of marijuana than is allowed by California law. Therefore, it would be vital that you attempt to negotiate your charges down to simple possession even though both possession for sale and simple possession are misdemeanors under prop 64.
Defenses To HS 11359 Charges
Some of the defenses you could use to fight your HS 11359 charges include:
You Had No Intent To Sell
In California, police always misinterpret simple possession of marijuana as intent to sell the drug. Possessing marijuana by itself does not mean you have an intention to sell it because you can possess the weed only for your personal use. The fewer the factors of sale in your case, the weaker the prosecutor’s allegation that you possessed marijuana for sale.
Illegal Search And Seizure
You could be the victim of an illegal search and seizure if the police carried out an illegal search of your person, home, or vehicle without a warrant or if their search of your home or car exceeded the warrant's scope. In this situation, your attorney must present proper motions to fight the admissibility of proof discovered because of the police’s improper conduct. An illegal search and seizure of your vehicle or person can also involve leverage, which your attorney can employ to negotiate the best disposition on your behalf.
Maybe you were not aware that what you had in your possession was marijuana. For example, you could have honestly mistaken a bag of marijuana in your possession for sage. This argument is most apt if you do not have a record of drug-associated crimes.
You Did Not Possess Marijuana
The facts of your charges could show that you either did not gain access to possession of the drug or did not know that the drug was in your possession. For example, you contact undercover police online and organize to buy marijuana for them. Both of you decide to conduct the transaction in a bar. Later the police arrest you even before you drive over to the bar. In this case, even if you had the requisite intent, you never took control or possessed marijuana. Therefore, you cannot face the charges for possessing marijuana for sale.
Simple Possession Of Marijuana — HS 11357
It is a crime under HS 11357 of the California law for anyone over 21 years to possess up to 8 grams of concentrated cannabis or up to 28.5 grams of marijuana. If you possess 8 grams of concentrated cannabis or 28.5 grams of marijuana, you will face misdemeanor charges under California law. In addition, you could face a fine that does not exceed $500 and a jail term that does not exceed six months in county jail. It is an infraction for any person under 21 years to possess any amount of marijuana.
Cultivation Of Marijuana — HS 11358
According to the amendments made on HS 11358 by prop 64, adults 21 years or older are allowed to plant, cultivate, harvest, dry, or process six living marijuana plants without violating the law. It is an offense to cultivate more than six marijuana plants or cultivate where the local law does not legally allow it. This is a misdemeanor crime for adult offenders and could attract a fine that does not exceed $500 and a jail term that does not exceed six months in county jail. It is a felony crime for the following category of people:
- Defendants that violate California’s environmental laws during marijuana cultivation
- People with serious violent felony crimes on their record
- Defends who has two or more previous convictions for growing more than six cannabis plants
- Registered sex offenders
Sale Of Marijuana — HS 11360
Prop 64 allows only licensed people to sell marijuana. It is a misdemeanor crime for an unlicensed person to transport or sell marijuana. You could face the following penalties:
- A fine of $1000
- A jail term of up to six months in a county jail
Find A Criminal Defense Attorney Near Me
The crime of possession of marijuana for sale attracts a jail term and hefty fines. You need to consult a drug crimes attorney to wade you through the defense journey. Long Beach Criminal Attorney can help you create a convincing defense to fight your charges. Contact us at 562-308-7807 and speak to one of our attorneys.