Definition and Aspects of Possession of Marijuana for Sale:
The state of California made the personal use of marijuana for adults legal on January 1, 2018. This Proposition makes it legal to purchase, use, and possess marijuana in the state; however, this freedom is for personal use only. If someone has possession with the intent to sell, it is a violation of California Health & Safety Code 11359 (HSC 11359). Possession for Sale is a misdemeanor or potentially felony-level offense, leading to jail or probation time, hefty fines, and further restrictions of freedom.
To be convicted of California Health & Safety Code 11359 (HSC 11359), the Prosecution must prove the following:
- The Defendant was in possession of marijuana
- The Defendant was aware of its presence
- The Defendant was aware that it was a controlled substance
- The Defendant intended to sell the controlled substance illegally
- The controlled substance was marijuana
- A useable amount was present
Possession of Marijuana with the intent to sell is strictly illegal outside of:
- A business licensed to sell recreational marijuana for adults aged 21, or older
- Medical marijuana, following all state laws
While Possession of Marijuana is now legal in California for adults 21 years of age or older, selling or intending to sell it is reserved strictly for licensed dispensaries.
For the purposes of California Health & Safety Code 11359 (HSC 11359), marijuana is defined as:
- Marijuana plant seeds
- Marijuana leaves
- The resin extracted from any part of the plant
- Every manufacture, compound, salt, mixture, derivative, or preparation of the plant, marijuana seeds, or resin
The law defines possession as being in control of an object. There are two types of possession:
- Actual Possession
- Constructive Possession
‘Actual possession’ refers to having a controlled substance on the person of the Defendant. This means carrying it in their hand, in a purse, or any other place where they have direct, physical control over the object.
On the other hand, ‘constructive possession’ is referring to something not physically on the person, but in a place that they own or have indirect control over. For example, their house, car, or office.
Additionally, for the purposes of this statute, selling or intending to sell marijuana does not necessarily have to be for money. While taking cash in exchange for the substance is against the law, this statute also covers direct exchange for services or anything valuable – such as paying off debt, intending to pay for a service, or in exchange for material valuables.
Lastly, a ‘useable’ amount refers to a quantity that is enough to be used by someone as a controlled substance. For it to be a violation of California Health & Safety Code 11359 (HSC 11359), the amount does not have to be enough to get someone high.
Criminal Offenses Related to Possession of Marijuana for Sale:
Similar or related offenses to California Health & Safety Code 11359 (HSC 11359), Possession of Marijuana for Sale:
- Simple Possession – California Health & Safety Code 11357 (HSC 11357)
- Cultivation of Marijuana – California Health & Safety Code 11358 (HSC 11358)
- Marijuana Sale or Transportation – California Health & Safety Code 11360 (HSC 11360)
Examples of Possession of Marijuana for Sale:
A man is legally searched when the police officer finds a substantial amount of marijuana on his person, packaged into little baggies. Due to a large amount of cash on him, as well as the way the controlled substance is kept, he is suspected of having the intention of selling marijuana. Under California Health & Safety Code 11359 (HSC 11359), he could be charged with possession for sale.
A woman hires a babysitter to watch her child for the evening. At the end of the night, when she comes back, she realizes she’s short on cash and attempts to pay the sitter by giving her legally purchased edibles. Even though the woman had bought the marijuana infused candy from a licensed dispensary and have possessed it lawfully, when she offered to use it as a payment for services, she violated California Health & Safety Code 11359 (HSC 11359).
Defenses to Possession of Marijuana for Sale:
Since California Health & Safety Code 11359 (HSC 11359) makes it illegal to sell or have the intention to sell marijuana, substantial evidence is often used to prove someone’s guilt. If the Defendant possesses a large amount of the controlled substance, but there is no further evidence of the sale or its intention, arguing that the marijuana is for personal use is a common practice. Larger amounts of legally purchased marijuana for personal use is not against the law.
Additionally, suppose the police officers did not have the proper search and warrant forms or did not have sufficient probable cause to make the arrest. In that case, an effective Defense Attorney could step in. By questioning the legality of the arrest circumstances, an attorney could make a motion to suppress the evidence found, which could get the charges of possession of marijuana for sale (HSC 11359) dropped.
Lastly, if the Defendant was not aware of the controlled substance’s presence or did not know it was marijuana, the charges could be dismissed.
Consequences and Penalty for Possession of Marijuana for Sale:
California Health & Safety Code 11359 (HSC 11359) is a misdemeanor for most offenders. If someone is convicted of Possession of Marijuana for Sale (HSC 11359), they are facing a jail sentence of up to six months and a fine up to $500.
However, California Health & Safety Code 11359 (HSC 11359) becomes a felony if any of the below is true of the Defendant:
- The Defendant possessed marijuana for sale in connection with or attempting to sell to a minor (any person under the age of 18)
- The Defendant has two or more prior misdemeanor convictions of Possession of Marijuana for Sale (HSC 11359)
- The Defendant has a prior conviction for serious violent felonies, including but not limited to:
- Sexually violent offenses
- Sex crime against a child under the age of 14
- Gross vehicular manslaughter
- Any other sexual nature crime that required the Defendant to register as a sex offender
If one or more of the above applies to a Defendant and he/she gets convicted with felony possession (HSC 11359), the punishment is anywhere between 16 months – 3 years in county jail.
A convicted person might be eligible for probation, however, there are certain restrictions that apply. These rules include individual or group therapy, progress reports, periodical drug testing, searches of person or possession without a warrant, or community service.
Possession of Marijuana for Sale, under California Health & Safety Code 11359 (HSC 11359), is a misdemeanor or potentially felony offense that can result in jail time, severe fines, and additional classes or other probation terms. It is essential that if you or someone you know is charged with Possession of Marijuana for Sale, you contact an expert attorney as soon as possible.
For an experienced attorney on your side, Action Lavitch from Action Defense Lawyers is available 24/7 at (747) DEFEND U or (747) 333-3638. With a proven track record of possession related charges and speaking both English and Spanish, Action Lavitch and the team from Action Defense Lawyers provide skilled legal representation and professional advice. Having an above 90% success rate for clients, Action Defense Lawyers is the go-to for those charged with California Health & Safety Code Section 11359 (HSC 11359), Possession of Marijuana for Sale. Book a free consultation today.