9 Things You Should Know About California “Hash Laws”

Overview of Health And Safety Code 11357

Hash

Under California’s Proposition 64 adults can now possess, transport, or obtain 8 grams of concentrated cannabis as long as they are 21 years of age or older legally.  However, if you possess, transport or obtain more than 8 grams it is a misdemeanor offense punishable by up to 6 months in jail and a $500 fine.

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 is placed under arrest and police search his vehicle. During the search police find a jar of “hash” containing 15 grams of concentrated cannibis and Jeffrey is additionally charged with possession of concentrated cannabis.

Definition Of Concentrated Cannabis

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.”1

Related: Proposition 64 – Marijuana Legalization Initiative

How Does the Prosecutor Prove This Charge?

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):

Courtroom
  • 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;

And

  • The controlled substance was in a usable amount
Usable Amount
Marijuana In Cannisters

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.

What Does State Law Consider “Possession”?

scales of justice with legal journals

There are two (2) kinds of possession under this law:

Actual Possession

This 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

This 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.

Legal Defenses

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): 

scales of justice with legal journals
Prescription

The hash, hash oil or “wax” was recommended/prescribed by a licensed physician for personal use7: 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.10

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 Marijuana11.

.

Medical Marijuana Card

If you have a valid medical marijuana card12, then you are legally allowed to possess medical marijuana13.

Primary Caregiver

If you are the primary caregiver14 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.15.

No Knowledge

You did not have knowledge of the fact that you possessed the concentrated cannabis:  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.

Penalties

Judges Gavel

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 were updated and changed under proposition 64. The now include the following:

Possession of not more than 28.5 grams or 4 grams of concentrate:

  • Under 18 infraction
  • 18-21 infraction

Possession of more than 28.5 grams or 4 grams of concentrate:

  • Under 18 infraction
  • 18-21, misdemeanor
  • 21 and over, misdemeanor if more than 28.5 grams or more than 8 grams of concentrate.

Misdemeanor 

  • Up to $500 Fine
  • Up to 6 months in jail.

Note: This offense is eligible for both a deferred entry of judgement under penal code 100016 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.

Related Offense

Hiring An Attorney

We have prosecuted these types of cases as former prosecutors and successfully defended these cases as defense attorneys.  If you have been arrested for possession of some type of concentrated cannabis than we can help you with your defense. Contact the Aizman Law Firm for a free consultation at 818-351-9555.

Request A Free Consultation 818-351-9555 

Footnotes

  1. People v. Bergen, CA Ct. App; []
  2. Id. []
  3. Id. []
  4. Id. []
  5. People v. Barnes (1997) 57 Cal.App.4th 552, 556 [67 Cal.Rptr.2d 162]. []
  6. Id. []
  7. “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) 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. []
  8. 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. []
  9. “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 []
  10. 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. []
  11. 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. []
  12. Person with an identification card” means an individual who is a qualified patient who has applied for and received a valid identification card pursuant to this article. Health & Safety Code section 11362.7 (c []
  13. California Health and Safety Code 11362.71 (e) No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article. []
  14. 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 []
  15. 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 []
  16. Penal Code section 1000.  (a) This chapter shall apply whenever a case is before any court upon an accusatory pleading for a violation of Section 11350, 11357, 11364, 11365, 11377, or 11550 of the Health and Safety Code, or subdivision (b) of Section 23222 of the Vehicle Code, or Section 11358 of the Health and Safety Code if the marijuana planted, cultivated, harvested, dried, or processed is for personal use, or Section 11368 of the Health and Safety Code if the narcotic drug was secured by a fictitious prescription and is for the personal use of the defendant and was not sold or furnished to another, or subdivision (d) of Section 653f if the solicitation was for acts directed to personal use only, or Section 381 or subdivision (f) of Section 647 of the Penal Code, if for being under the influence of a controlled substance, or Section 4060 of the Business and Professions Code, and it appears to the prosecuting attorney that, except as provided in subdivision (b) of Section 11357 of the Health and Safety Code, all of the following apply to the defendant: (1) The defendant has no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense. (2) The offense charged did not involve a crime of violence or threatened violence. (3) There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in this subdivision. (4) The defendant’s record does not indicate that probation or parole has ever been revoked without thereafter being completed. (5) The defendant’s record does not indicate that he or she has successfully completed or been terminated from diversion or deferred entry of judgment pursuant to this chapter within five years prior to the alleged commission of the charged offense. (6) The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense. (b) The prosecuting attorney shall review his or her file to determine whether or not paragraphs (1) to (6), inclusive, of subdivision (a) apply to the defendant. Upon the agreement of the prosecuting attorney, law enforcement, the public defender, and the presiding judge of the criminal division of the superior court, or a judge designated by the presiding judge, this procedure shall be completed as soon as possible after the initial filing of the charges. If the defendant is found eligible, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. This procedure is intended to allow the court to set the hearing for deferred entry of judgment at the arraignment. If the defendant is found ineligible for deferred entry of judgment, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. The sole remedy of a defendant who is found ineligible for deferred entry of judgment is a post-conviction appeal. (c) All referrals for deferred entry of judgment granted by the court pursuant to this chapter shall be made only to programs that have been certified by the county drug program administrator pursuant to Chapter 1.5 (commencing with Section 1211) of Title 8, or to programs that provide services at no cost to the participant and have been deemed by the court and the county drug program administrator to be credible and effective. The defendant may request to be referred to a program in any county, as long as that program meets the criteria set forth in this subdivision. (d) Deferred entry of judgment for a violation of Section 11368 of the Health and Safety Code shall not prohibit any administrative agency from taking disciplinary action against a licensee or from denying a license. Nothing in this subdivision shall be construed to expand or restrict the provisions of Section 1000.4. (e) Any defendant who is participating in a program referred to in this section may be required to undergo analysis of his or her urine for the purpose of testing for the presence of any drug as part of the program. However, urine analysis results shall not be admissible as a basis for any new criminal prosecution or proceeding. []
  17. Health & Safety Code §11351.  Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years. []
  18. Health & Safety Code §11377.  (a) Except as authorized by law and as otherwise provided in subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year, 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. []
  19. Health & Safety Code §11358.  Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code. []

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