Under Health & Safety Code 11359, it is illegal for anyone to possess for sale any marijuana, or any part of it.
Example: Jason calls his friend Craig and asks him if he could get him some “pot”. Craig meets Jason in a parking lot and exchanges 1/8 of marijuana for $100. He could be prosecuted under health and safety code 11359.
If you are charged with illegally possessing marijuana for sale, the prosecutor must prove the following to establish that you are guilty under California Health & Safety Code Section 11359:
- You possessed a controlled substance;1
- You knew of its presence;
- You knew of the substance’s nature or character as a controlled substance;
- When you possessed the controlled substance, you intended to sell it;
- The controlled substance was marijuana;
- The controlled substance was in a usable amount.
- Under 18, Infraction
- 18 and over, misdemeanor
- 18 and over, can be a felony if aggravating factors are present.
In most cases this violation is a misdemeanor with the following penalties:
- Up to 6 months in county jail
- 0-3 years of summary probation
- Fines of up to $500 + penalty assessments
- Additional requirements, as determined by the court
- Any combination of the above, as determined by the court
For certain defendants based on their criminal history, possession of marijuana for sale without a license remains a felony.
- Defendants with a history of serious violent crimes or sex crimes
- Prior convictions of health and safety code 11359
- 3-5 years of formal probation and,
- Up tp 364 days in the county jail, or
- 16 months – 3 years in state prison
- Up to $1,000 fine plus penalty assessments
- Registration as a drug offender pursuant to Health & Safety Code Section 11590(a)
Below are possible legal defenses to a charge under Health & Safety Code Section 11359:
- You did NOT INTEND TO SELL the marijuana.
- The Marijuana was for Personal Use: If marijuana is found in your possession, and it was for your own personal use, then a skillful attorney can argue to the prosecutor that, the fact that the item was authorized means the possession of it IS NOT illegal.
2. You did not Possess the marijuana, or any part of it.
- Under Health & Safety Code § 11359: Possession is Required. Therefore, if you did not actually possess, or even constructively possess the marijuana, then you have not committed a violation under Section 11359.
3. You did NOT KNOW it was marijuana.
- Under Health & Safety Code § 11359, you are required to have knowledge of the nature or character of the plant as marijuana. Therefore, knowledge is critical to this charge.
- Under Health & Safety Code § 11359: The act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. Entrapment is an effective legal defense if the commission or encouragement of the criminal act originated with the police or government agents, instead of with the “criminal.”
5. There is INSUFFICIENT EVIDENCE against you.
- Under Health & Safety Code § 11359: An attorney can show the prosecutor that they do not have enough evidence to convict you under Section 11359. This can be done with mitigating evidence or proof that not all elements of the crime were met by showing that the evidence submitted is either insufficient or insubstantial.
In Recognition Of Our Work We Have Been Awarded
- There are 2 kinds of possession under this law. The first is actual possession, You have actual and/or exclusive control over the marijuana, you actually have it in your hand or on your person. The other is constructive possession, You do not have to actually hold or touch the substance, to possess it. It is enough if you have control over it/ [or] the right to control it, either personally or through another person. [↩]