Under Health and Safety Code section 11357, it is a misdemeanor offense to possess marijuana for personal use. In order for the prosecutor to convict you of this offense, she must prove beyond a reasonable doubt the following facts: a) you possessed marijuana; b) you knew that you possessed marijuana; c) you possessed a usable quantify of marijuana.
Possession can be actual, constructive, or joint. Possession of marijuana under all three of these forms is prohibited.
You have “actual” possession of a drug when you have immediate physical control of it. The drug is either on your person, or in your purse or briefcase. Note that actual possession need not mean that the drugs were actually on you when the police conducted the search. As long as you had actual possession of the drug shortly before the police search, your conduct has met the “possession” element of the code. For example, the police conduct a traffic stop of Jack’s car. During the investigation, Jack ingests the small amount of marijuana that he had kept in his pocket. The officer witnesses this act. Jack can be charged with section 11357 because, according to the officer’s testimony, there was no question that Jack possessed the drug prior to ingesting it.
You have “constructive” possession of a drug when the drug was not discovered on your person but at a location over which you had control. For example, the police raid Jack’s house and discover bags of dried marijuana in his closet. At the time, Jack was not near his closet; he was at his girlfriend’s house. Jack is in constructive possession of the bags of marijuana because they were found in his closet, a location to which he had access and over which he had control. Now imagine that the bags of marijuana were found in a closet that Jack shared with his son. Though Jack had access to and control over that closet, the fact that he shares it with his son makes it unclear whether he (Jack) was in possession of the drug. Thus, access does not and of itself prove possession.
You have “joint” possession of a drug when you and another person or other persons share actual or constructive possession of the drug. For example, bags of dried marijuana are found in a closet that Jack shares with his brother, Jake. The evidence shows that both Jack and Jake knew of the drug’s presence in the closet. Both brothers can be charged with code section 11350 because they had joint possession of the drug.
The prosecutor must prove that you were aware of the drug’s presence and of its nature as a drug. If you had no idea that the drug was in your possession, or if you did not recognize that the material in your possession was marijuana, then you cannot be found guilty of code section 11357. For example, Jack visits his friend Jill. Jill asks Jack if he could deliver a container of dried sage to Jill’s mother. What Jill is really asking Jack to deliver is a container of dried marijuana. Jack takes the container and places it in his car. He is stopped for a traffic violation and the container is discovered. Jack is not guilty of code section 11357 because he believed that the container carried salt.
The prosecutor has to prove that the amount of drug you possessed was sufficient to constitute a “usable” amount—that is, sufficient for the drug to have the effect it ordinarily produces. If all you had in your possession was residue or minor traces of the drug, you cannot be found guilty of code section 11357.
PENALTIES FOR A CONVICTION UNDER 11357
Possession of marijuana other than concentrated cannabis
The penalties for a code section 11357 conviction vary depending on the specific circumstances of your case. If you possess no more than 28.5 grams of marijuana (other than concentrated cannabis), then the offense is prosecuted as an infraction punishable by a $100 fine. If you are over 18 and possess less than one ounce of marijuana (other than concentrated cannabis) on school property while school is still in session, you face a misdemeanor punishable by up to 10 days in county jail and a maximum fine of $500.00. If you are under 18 and possess either no more than 28.5 grams of marijuana or less than one ounce of marijuana on school property, then you face a fine of $250.00 for a first offense. A second such offense is penalized by a fine of up to $500.00 and up to ten days in a juvenile detention facility.
If you possess more than one ounce of marijuana (other than concentrated cannabis), then you face a maximum fine of $500 and a county jail sentence of up to 6 months.
Possession of concentrated cannabis
Possession of concentrated cannabis is prosecuted as a misdemeanor. If convicted of this offense, you face a maximum fine of $500 and up to one year in county jail.
If you have previously suffered a conviction for a serious felony such as murder or a sexually violent crime, then possession of concentrated cannabis will subject you felony penalties of 16 months, 2 years, or 3 years in state prison.
Health and safety code section 11357 is an offense that courts can address via drug diversion as an alternative to the previously mentioned penalties. “Drug diversion” is an alternative sentencing program that allows defendants who are charged with nonviolent possession of drug offenses to participate in drug treatment or rehabilitation. Upon successful completion of drug diversion, the defendant then earns dismissal of all the charges against him or her.
You did not have knowledge that the material in your possession was marijuana
If you did not recognize that what you had in your possession was marijuana—e.g., in the scenario above, Jack thought what he was carrying was sage —then you cannot be found guilty of code section 11357.
You did not have knowledge that you were in possession of marijuana
Imagine that you allowed your brother to borrow your car. Unbeknownst to you, he used the car to pick up some marijuana from a friend. He then concealed the bag of marijuana in the glove compartment of your car. If your car is searched by law enforcement and the marijuana is discovered, you are not guilty of 11357 because you had no idea that there was marijuana placed in your car.
The drug was discovered as a result of illegal search and seizure
The Fourth Amendment protects your right to privacy of your home and vehicle. Law enforcement have to have either your expressed consent, a legitimate warrant, or justification under a qualified exception to search your home and vehicle. If all of these criteria were absent in the police officer’s conduct, then the evidence against you was the result of an illegal search and seizure. As such, this evidence is inadmissible in a court of law. A skilled defense attorney can use this factor as basis to earn a dismissal of the charges against you, or as leverage to negotiate a more favorable disposition on your behalf.
The Medical Marijuana Defense--You possessed medical marijuana
California’s Compassionate Use Act under Health and Safety Code section 11362.5 authorizes medical marijuana patients to possess and transport marijuana for their own personal use or as caregivers for other medical marijuana patients. In other words, if you are a medical marijuana patient or a caregiver for a medical marijuana patient, you may possess and transport marijuana for your own medical needs or those of your patient. In order for this medical marijuana defense to apply, you need to possess an amount of marijuana that is reasonably related to, and not more than necessary for, your or your patient’s medical needs.
The Medical Marijuana defense is discussed at more length in a separate section on this website.
HOW CAN WE HELP
Negin will relentlessly pursue any and all defenses relevant to your specific case. In addition, she will present any and all mitigating factors to earn you the best disposition in your case, whether that means straight dismissal of the case or ultimate dismissal of the case through a diversion program.
Actual Case: In People v. Sean L. (Superior Court Case No. GA094796), Mr. L was charged with felony possession of marijuana for sale. Mr. L was a medical marijuana patient and a member of a valid medical marijuana collective. During one of his deliveries to one of the members of the collective, Mr. L was pulled over by the cops, who subsequently searched his car and found boxes of medicinal marijuana and cash. The cash was donation money that Mr. L had collected that day from other patients of the collective. Uneducated about the Compassionate Use Act, the officers arrested and charged Mr. L for possession of marijuana for sale. The Pasadena District Attorney’s case heeded to the officers’ recommendation and filed the case as a felony possession for sale. Negin meticulously presented the Medical Marijuana Defense on behalf of Mr. L. Despite dealing with a prosecutor who seemed intent on convicting Mr. L of a felony, Negin convinced the District Attorney’s Office to dismiss all charges against Mr. L. If it weren’t for Negin’s diligent efforts, Mr. L would be a convicted felony today.