Possession of marijuana in California is legal if the amount of drug in your possession is only enough for personal use. If you have the drug in larger quantities or other factors suggest an intention to sell or share the drug, you could face charges for possessing marijuana for sale. It is a serious drug crime, punishable by a lengthy time in prison and payment of a hefty fine.

But you could fight your charges in court, with the help of an experienced criminal attorney, to avoid a conviction. We have a team of highly trained and experienced criminal defense attorneys at Los Angeles Criminal Attorney that are willing and ready to walk the legal journey with you. We could use our best defense strategies to compel the judge to drop or reduce your charges.

The Legalization of Marijuana in California

For a very long time, marijuana was an illegal substance in California. But California voters approved a proposition, Prop 64, on 8th November 2016 to possess and use only small amounts of marijuana. Since 1st January 2018, Californians have been legally using marijuana, or pot (as it is commonly known). But the law only allows the use and possession of marijuana in small amounts for personal use. If you must keep large quantities of the substance for sale, you must obtain a business license.

The transition from treating marijuana as an illegal substance to its legalization has taken a long while. It started with the legalization of medical marijuana in 1996, whereby people were allowed to cultivate, use and distribute the drug for medical purposes. Before then, possessing even the smallest amount of marijuana (up to one ounce) was considered an infraction.

Proposition 64 has brought tremendous changes to California's law against the use and distribution of marijuana. For example, possession of 28.5 grams of marijuana under HS 11357 is legal under Prop 64. The cultivation of more than six plants of marijuana, which was a felony before prop 64, is now a misdemeanor. And sale or transportation for the sale of marijuana without a valid license is a misdemeanor for most defendants. It could be a felony if you are a repeat offender.

Proposition 64 legalizes the possession for sale of marijuana for business people with a valid license. You must obtain a state or local permit and operate your business per that license. Anyone who fails to obtain a license but is found in possession of marijuana for sale will be prosecuted. Before the amendments, possession of marijuana for sale was a straight felony. But today, it is a misdemeanor for most adults. But there are exceptions. For example, if you plan to sell the drug to minors (individuals aged below 18), you are a repeat offender with two or more convictions for the same or similar offense or have a prior conviction for a serious or violence-related felony like murder and rape.

Legal Definition of Possession of Marijuana for Sale

The law against the possession of marijuana mainly applies to people without a valid license, allowing them to sell and distribute marijuana for personal or medical purposes. Anyone found possessing a more considerable amount of marijuana than needed for personal use can face charges under this law, except those with a valid license to sell medical marijuana or marijuana for personal use. The rule also applies to dispensaries without permits that keep them from selling to their patients.

If you are guilty of having marijuana for sale, you will face charges under HS 11359. The district attorney should prove all elements of this crime beyond a reasonable doubt for the court to declare you guilty under the law. These elements are:

  • That you were in possession of an illegal substance
  • You were aware that you had the said substance
  • You knew or should have reasonably known the character or nature of the substance as a controlled drug
  • You intended to sell the substance illegally without the required local or state sales license
  • The said drug was marijuana
  • The substance was in usable amounts

Let us look at these elements in greater detail to understand this law even better:

What is Marijuana?

According to Health and Safety Code 11018, marijuana is any plant of Cannabis sativa L. plant, growing or dead. It includes the plant's seeds, leaves, resin extraction from any of its parts, and all compounds, derivatives, salts, manufactures, preparations, and mixtures of that plant, its resin, or seeds. Thus, it does not refer to a specific part of the plant but any part or production made from any part of the plant.

What is Possession?

Possessing marijuana occurs when you are found to have any part of or product from Cannabis sativa L. It could be actual or constructive possession, depending on where the drug was found. You could also possess the drug jointly with another person or people.

Actual possession of marijuana occurs when you have the drug in your hands or inside what you are wearing or holding, like a bag or pocket.

Example: Sammy is given a bag by his uncle to carry to his uncle's home on his way home. The bag contains marijuana, but Sammy is unaware of it. While walking to his uncle's house with a bag full of marijuana, Sammy has actual possession of the drug.

You could share actual possession of the drug with someone else/people.

If, in the example above, Sammy knows what is in the bag given to him by his uncle and is to benefit from selling the drug, Sammy and his uncle would have joint possession of the drug. In that case, both are guilty of possessing marijuana for sale.

Constructive possession occurs when no drug is in your person, but you control it wherever it is. In that case, you will not have it in your hands or anything you carry or wear. But you will have control over the drug wherever it could be, close or far.

Example: People that grow marijuana in their homes have control over the drug, even when they travel. You could be arrested and charged for possessing the drug even though you are miles away from where it is growing.

You could also exercise control over an illegal substance through someone else or an agent.

Example: If you are in the business of cultivating or processing marijuana but have to do that through someone else. The person takes care of all the business operations, but you have complete control over what happens to the drug. You are in constructive possession of marijuana even when you do not physically go to the business premise.

You could also have joint constructive possession of an illegal substance with another person or people. For example, in the example above, two or more people could own one business like that and then hire a person to take care of its operations. All the business owners are in constructive possession of marijuana.

Knowledge of the Drug's Presence

HS 11359 also requires you to know of the drug in your possession. Having the drug is insufficient to support a conviction if you are unaware of its presence. If you are carrying or keeping the drug, you must know about its existence.

Example: Sally and Ruth have been roommates for a few months now. Ruth does not know that Sally keeps marijuana in one of their kitchen cabinets, which she sells to her friends and colleagues. Sally has held that as a secret for the months she has been friends with Ruth. Even though the kitchen belongs to Ruth, she is unaware of the drug's presence. Thus, Ruth is not guilty of drug possession even if the drugs are in her apartment.

When the police find the drugs in a kitchen cabinet, Ruth could also be arrested for drug possession. Since the kitchen is a common area, the police will quickly assume that the two roommates are aware or should have reasonably known of the drug's presence. The burden of proof will fall on Ruth to prove that she did not know of the drug's existence in her kitchen cabinet.

Knowledge of the Drug as a Controlled Drug

The other requirement would be to know that the substance in your possession was illegal or controlled. You are not guilty under HS 11359 unless you know the nature of the drugs in your control. Some innocently keep or carry illegal substances without knowing precisely what they carry. The district attorney must prove beyond reasonable doubt that you know or should have reasonably known that the drugs in your possession were illegal or controlled. But the prosecutor doesn't need to demonstrate that you were aware of the exact nature of the drug as marijuana.

Example: Your brother comes home with a bag full of marijuana but lies to you that it is sage, which he says they need for experiments at school. You are not guilty of drug possession if you do not later realize that the bag is full of an illegal substance.

It is a challenge for the prosecutor to prove knowledge in court. It is difficult to know what the other person knew or did not know about a particular substance. But, California prosecutors and judges use other factors, like your behavior during arrest, to demonstrate your knowledge about the nature of the drug in your possession. The judge is likely to believe that you knew of the nature and presence of the drug in your control if you:

  • Tried to hide the substances when law enforcement approached you
  • Appeared nervous when officers were questioning you

But, a competent criminal attorney could argue that the police presence is enough to make a person nervous and not necessarily the drugs in your possession. You need legal help to fight your charges under HS 11359.

Intent to Illegally Sell The Drug

HS 11359 is against the possession for the sale of marijuana. Thus, the district attorney must prove your intention to sell the drugs in your possession for the court to find you guilty under this law.

Selling an illegal substance means exchanging it for money, or anything else of value, including services. Some people give others drugs in exchange for sex, apartments, other drugs, debt repayment, or services like cleaning the house.

Remember that recreational marijuana is legal in California. Thus, possession of marijuana is only an offense if you intend to sell or distribute it without a valid license.

Type of Evidence Needed

A criminal court judge will require sufficient proof of your intention to sell marijuana to convict you under HS 11359. The district attorney must provide enough evidence, including:

  • Direct evidence showing your intention to sell the drugs — For example, statements you have made regarding drugs in your possession and your intention to sell, or pictures or videos by a police officer showing you exchanging marijuana for cash.
  • Circumstantial evidence — A prosecutor can use circumstantial evidence if they do not have solid proof to obtain a conviction. For example, the prosecutor can demonstrate that you had more marijuana in your possession than you needed for personal use or had equipment in your control to show that you intended to package marijuana for sale.

The Drug Was Marijuana

The district attorney must also prove that the substance in your possession was marijuana. You are not guilty under this statute if you have any substance other than marijuana.

Example: Sammy buys what he believes to be marijuana to sell to his friends in college. On his way to school, he meets police officers investigating a different matter. However, the officer notices that Sammy is acting suspiciously. They ask to see what he has in his backup. He admits to buying marijuana with the intent to sell it in school. The officers arrest Sammy. But Sammy is not guilty under HS 11359 because what he had bought was not marijuana. The dealer was a scammer.

The Substance Must Be in Usable Amounts

You are guilty of having marijuana for sale if the substance in your possession is in usable amounts. The district attorney must prove that the drugs in your possession were enough to use by the buyer.

Penalties for a Conviction Under California HS 11359

Possession or sale of marijuana without a valid license is a misdemeanor offense. The offense is punishable by six months in jail and a fine of not more than $500.

But, you could face felony charges under Proposition 46 under the following circumstances:

  • You have a previous conviction in your criminal record for specific violence-related felonies, like murder, sex crime against a minor below 14, sexually violent crimes, and any other sex crimes that require registration as a sex offender.
  • You have at least two prior convictions under HS 11359 in your criminal record.
  • You intended to sell the drugs in your possession to a minor

A felony charge under this statute is punishable by sixteen months, two, or three years in jail.

Note: Drug diversion is not available for defendants convicted under this law. You only qualify for drug diversion if you face charges for possessing or cultivating excess amounts of the substance for personal use.

But, you could be suitable for misdemeanor probation in place of jail time after conviction. If the judge grants you probation, you will serve your sentence out of incarceration. But you will receive strict probation conditions to abide by throughout the probation period. These conditions could include the following:

  •  Submitting regular progress reports to the court
  • Paying restitution to victims (if any)
  • Participating in therapy, whether individual or group
  • Submitting to drug tests throughout the probation period
  • Community service
  • A regular search of your property or person, even without a search warrant

How To Fight Charges Under HS 11359

It is necessary to put up a good fight against your charges to avoid a conviction and its consequence. You can do that with the help of a skilled criminal attorney. Fortunately, several defense strategies are available that your attorney can use to compel the court to dismiss or reduce your charges. The best of these strategies are:

You Lacked Knowledge of the Drug's Presence or Its Nature

You are only guilty of possessing marijuana for sale if you were aware that you had the drug in the first place. Some people are accused of drug possession when unaware of its presence in their person or property. For example, someone could have put a sizeable amount of marijuana in your backpack or house without your knowledge. If that is true, then the court will dismiss your charges.

You must also know the nature of substances in your possession to be guilty under this statute. If someone gave you substances to sell, but you do not know precisely what you are to sell, you will not be guilty under HS 11359.

The Drugs Were for Personal Use

The police could have been mistaken that you intended to sell the substances in your possession while, in the real sense, they were for personal use. That could be true if you had more drugs in your control than necessary for personal use. If you admit to possessing excess marijuana for personal use, the judge will reduce your charges to a more lenient charge under California HS 11357. Then, you will be suitable for probation or drug diversion in place of incarceration.

The Drugs Were for Medical Use

Sometimes you could face charges for possession for the sale of marijuana because you had more drugs than needed for personal use. If you had the drugs because you are taking care of a patient that requires medical marijuana, you could use that as a defense to have the court dismiss your charges. People that use medical marijuana need it in considerable amounts than needed for recreation. If you can prove your case, the judge will dismiss your charges.

The Pot Belonged to You and Your Friends

If you plan to share recreational marijuana with your friends, you will probably buy it in larger amounts than you need for personal use. If the police come across it, they could conclude that you intend to sell the marijuana, hence the larger amount than necessary for personal use. But you can defend yourself by telling the jury that the substances were only for personal use for you and your friends. Also, if the prosecutor cannot prove your intent to sell the substances beyond a reasonable doubt, the court will dismiss your charges.

Illegal Search and Seizure

Sometimes the police go beyond their mandate to obtain evidence against drug offenders. If they suspect a particular person is hiding marijuana for sale, they could raid their home, search and seize the said drugs, and even make an arrest. But, officers need a detailed search warrant to conduct searches. Without a warrant, the arrest would be illegal, and any evidence gathered would be inadmissible in court.

If you are a victim of an illegal search and seizure by the police, you could use that as a defense to have the court dismiss your charges. You could say that the police searched your person or property without a warrant or that the officers went beyond the provision of the search warrant.

The judge will dismiss the evidence gathered in that search. That could leave the prosecutor with little or no evidence to obtain a conviction. Consequently, the judge will dismiss your case.

Find a Skilled Criminal Attorney Near Me

If you face drug charges for possessing marijuana for sale, you need proper legal advice and guidance to obtain a fair outcome for your case. Drug charges are highly punishable in California. A competent criminal attorney will be with you through all court processes, offering advice and safeguarding your rights. We also devise a solid defense against our client's charges at the Los Angeles Criminal Attorney to obtain a dismissal or reduction of charges. We do not rest until you are satisfied with your case's results. Call us at 424-333-0943 for more information and legal assistance with your case.