Although proposition 64 has made recreational marijuana possession legal it is still unlawful to sell marijuana in California except for the following two situations.
- Sale of marijuana by a licensed business to a person that is 21 or older.
- Sale of medical marijuana by a licensed dispensary.
Health & Safety Code 11359 makes it illegal for anyone to possess for sale any marijuana.
How Does the Prosecutor Prove This Charge?
If you are charged with illegally possessing marijuana for sale, the prosecutor must prove the following to establish that you are guilty.
- You possessed a controlled substance;1.
- You knew of its presence2; and you knew of the substance’s nature or character as a controlled substance3;
- When you possessed the controlled substance, you intended to sell it4;
- The controlled substance was marijuana5;
- The controlled substance was in a usable amount6.
Actual vs Constructive Possession
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.
For example it is found by police in a warehouse you own and control.
It is enough if you have control over it/ [or] the right to control it, either personally or through another person.
What Are The Criminal Penalties?
In most cases this violation is a misdemeanor.
For certain defendants based on their criminal history, possession of marijuana for sale without a license remains a felony under the circumstances below.
- Defendants with a history of serious violent crimes such as gross vehicular manslaughter while intoxicated, murder or sex crimes that require sex offender registration.
- Prior convictions of health and safety code 11359.
- Selling marijuana legally to minors.
| Penalties | Misdemeanor | Felony |
|---|---|---|
| Fine | $500 + penalty assessments | Up to $1,000 + penalty assessments |
| Probation | 0-3 years of summary probation | 3-5 years of formal probation |
| Drug Offender Registration | Up to 6 months in county jail | Up to 364 days in county jail or 16 months – 3 years in state prison |
What Are The Legal Defenses?
Below are possible legal defenses to a charge under Health & Safety Code Section 11359
You Did Not Intend To Sell The Marijuana
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.
You Did Not Possess The Marijuana
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.
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.
You Were a Victim of Entrapment
Under Health & Safety Code § 11359: The act of law enforcement officers or government agents inducing or encouraginga 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.”
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.
- Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552, 556 [67 Cal.Rptr.2d 162]. [↩]
- Knowledge. People v. Romero (1997) 55 Cal.App.4th 147, 151–153, 157, fn. 3 [64 Cal.Rptr.2d 16]; People v. Winston (1956) 46 Cal.2d 151, 158 [293 P.2d 40 [↩]
- The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed [CALCRIM 2352] [↩]
- Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541] [↩]
- “Marijuana” Defined under Health & Safety Code 11018 – “Cannabis” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include either of the following: (a) Industrial hemp, as defined in Section 11018.5. (b) The weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink, or other product. [↩]
- Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23 Cal.Rptr.2d 628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96 Cal.Rptr. 643] [↩]
