Health & Safety Code 11357(a) makes it illegal to possess concentrated cannabis, or any part of it.1
Example: Jeffery is pulled over by California highway patrol for a hit and run auto accident. After he has been determined to be under the influence of alcohol he placed under arrest and police search his vehicle. During the seach police find a jar of “hash’ and Jeffrey is additionally charged with possesion of concentrated cannibis.
If you are charged with illegally possessing concentrated cannabis, the prosecutor must prove the following to establish that you are guilty under Health & Safety Code Section 11357(a):
- You (unlawfully) possessed a controlled substance;
- You knew of its presence2;
- You knew of the substance’s nature or character as a controlled substance3;
- The controlled substance was concentrated cannabis4;
- The controlled substance was in a usable amount
There are two (2) kinds of possession under this law:
- Actual Possession means that you have actual and/or exclusive control over the marijuana, as in, you actually have it in your hand or on your person.5
Example: You have concentrated cannabis in your pocket.
- Constructive Possession means that you do not have to actually hold or touch the substance, to possess it.6 Two or more people may possess something at the same time, which will give rise to constructive possession.
Example: You and your boyfriend have concentrated cannabis in the bedroom closet of your shared home.
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Concentrated cannabis means the separated resin, whether crude or purified, from the cannabis plant. It is created by using butane to extract the resin containing the psychoactive ingredient tetrahydrocannabinol (THC) from marijuana plant material. It is also known as, “hash,” “wax” “hash oil,” or “honey oil.”7
Examples of Concentrated Cannabis in the news:
A usable amount means that you have an amount enough to be used by someone as a controlled substance, specifically here, concentrated cannabis. Useless traces and/or debris is not a usable amount, however, it does not have to be enough concentrated cannabis, in amount or strength, to affect the user. Any Amount of concentrated cannabis, or any part of it, is illegal.
Depending on the circumstances, an experienced attorney, can evaluate your case and assess the most effective legal defenses to assist in negotiating a possible charge reduction, or if applicable, dismissal of the charges. Below are possible legal defenses to a charge under California Health & Safety Code 11357(a):
- Prescription: The hash, hash oil or “wax” was recommended/prescribed by a licensed physician: If the concentrated cannabis that was in your possession was medical marijuana, as in recommended by a licensed physician, then it was authorized for your own personal use. If you have a valid medical marijuana card8 , then you are legally allowed to possess medical marijuana under California state law but not federal law.9 The burden is on the defendant to produce sufficient evidence to raise a reasonable doubt that possession was lawful. ((People v. Mower (2002) 28 Cal.4th 457, 460 [122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jones (2003) 112 Cal.App.4th 341, 350 [4 Cal.Rptr.3d 916] [error to exclude defense where defendant’s testimony raised reasonable doubt about physician approval]; see also People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1441 [7 Cal.Rptr.3d 226] [defendant need not establish “medical necessity”].) If the defendant meets this burden, the court has a sua sponte duty to give the bracketed paragraph of medical marijuana instructions.))
Note: Under the law, you do not necessarily have to prove that you are, in fact, seriously ill, but just that a licensed physician has legally authorized you to use Medical Marijuana.
- Primary Caregiver: If you are the primary caregiver10 of someone authorized to use medical marijuana, then your attorney may be able to argue to the prosecutor that your possession of concentrated cannabis was not illegal.11)
- No Knowledge: of the fact that you possessed the concentrated cannibis: Under Health & Safety Code § 11357(a), you are required to have knowledge of the presence of the concentrated cannabis, as well as its nature or character as concentrated cannabis. Therefore, knowledge is a critical part of this charge.
The penalties and sentencing depends on the specific circumstances giving rise to your case, as well as your criminal history and the severity of the offense. Potential penalties under this Section include:
- 0-1 year in jail.
- 0-3 years summary probation.
- 16 months – 3 years in prison,
- 0-5 years formal probation.
- Fines and fees, as determined by the court.
Note: This offense is eligible for both a deferred entry of judgement and a prop 36 diversion sentence. Under Proposition 36, when a defendant is convicted of a “nonviolent drug possession offense,” the court must suspend the imposition of the sentence, grant probation, and require the defendant to participate in and complete a court-approved drug treatment program as a condition of probation.
We have have proseucted these tyoes of cases as former prosecutors and If you have been arrested for possesion of some type of concentrated cannibis than we can help you with your defense. Contact the Aizman Law Firm for a free consultation at 818-351-9555.
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- California Health & Safety Code Section 11357(a) – Except as authorized by law, every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code. (b) Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100). (c) Except as authorized by law, every person who possesses more than 28.5 grams of marijuana, other than concentrated cannabis, shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment. (d) Except as authorized by law, every person 18 years of age or over who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars ($500), or by imprisonment in a county jail for a period of not more than 10 days, or both. (e) Except as authorized by law, every person under the age of 18, who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be subject to the following dispositions: (1) A fine of not more than two hundred fifty dollars ($250), upon a finding that a first offense has been committed. (2) A fine of not more than five hundred dollars ($500), or commitment to a juvenile hall, ranch, camp, forestry camp, or secure juvenile home for a period of not more than 10 days, or both, upon a finding that a second or subsequent offense has been committed. [↩]
- Id. [↩]
- Id. [↩]
- Id. [↩]
- People v. Barnes (1997) 57 Cal.App.4th 552, 556 [67 Cal.Rptr.2d 162]. [↩]
- Id. [↩]
- People v. Bergen, CA Ct. App; [↩]
- Conviction for cultivating marijuana was reversed because the jury was erroneously instructed that for a compassionate use defense, defendant had to prove that he was “seriously ill.” The question of whether the medical use of marijuana was appropriate was a determination that was to be made by a physician and that was not to be second-guessed by jurors. People v. Spark (2004, Cal App 5th Dist) 121 Cal App 4th 259, 16 Cal Rptr 3d 840, 2004 Cal App LEXIS 1261. [↩]
- “Concentrated cannabis or hashish is included within the meaning of ‘marijuana’ as the term is used in the Compassionate Use Act of 1996.” (86 Ops.Cal.Atty.Gen. 180, 194 (2003 [↩]
- For the purposes of this section, “primary caregiver” means the individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health, or safety of that person. Health & Safety Code section 11362.7(e [↩]
- Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to the patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. Health & Safety Code section 11362.7(d [↩]