HS 11359: Possession Of Marijuana For Sale
ByDiana Aizman Esq. Updated on August 18, 2022
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.
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] [↩]
Post Tags: #Drug Laws#Marijuana Laws
Battery On A Police Officer Laws "Explained"
Constitutional Laws & Criminal Procedures
California "PCP" or "Angel Dust" Laws – Possession, Sale or DUI
ByDiana Aizman Esq. September 25, 2018 October 1, 2021
Although it does have medical uses for animals, PCP (its scientific designation is phencyclidine) is a drug that is not prescribed for humans. Consequently, possession of PCP is always a criminal violation. Overview of PCP PCP is also known as "angel dust," a particularly potent narcotic that is categorized as a Schedule II controlled substance1….
Read More California "PCP" or "Angel Dust" Laws – Possession, Sale or DUIContinue
Drug Crime | Fraud
ByDiana Aizman Esq. September 2, 2014 May 5, 2022
Under California Health and Safety Code, section 11153(a)1, a doctor can be criminally punished for prescription fraud. Additionally, a patient may be criminally punished for seeking a medical professional to provide controlled substances2. Definition of Health And Safety Code 11153 (Prescription Fraud) Health and Safety Code section 11153(a) states: A prescription for a controlled substance shall only be issued for a…
Read More California Prescription Fraud & "Doctor Shopping" LawsContinue
Guide To California Ketamine Laws (Including All Criminal)
ByDiana Aizman Esq. October 20, 2015 October 22, 2021
Ketamine is an anesthetic that was also used as an anti-anxiety medication in the 1960s for American soldiers during the Vietnam conflict. Overview of Ketamine Ketamine produces a sensation of being outside your body and a calming and narcotic effect that has made it a favorite drug in clubs and certain groups wishing to experience a…
Read More Guide To California Ketamine Laws (Including All Criminal)Continue
8 Things Everyone Should Know About "Ecstacy" Laws
Ecstasy is a Schedule I narcotic under the federal Controlled Substances Act. Overview of MDMA The scientific name for Ecstasy is 3, 4 methylenedioxymethamphetamine or MDMA. It has other various street names including "Molly," "X," "E," and "XTC." It was originally developed as anti-coagulant and later prescribed, though not FDA approved, for treating PTSD. It was not…
Read More 8 Things Everyone Should Know About "Ecstacy" LawsContinue
Understanding Possession For Sale Laws Under 11375 HS
ByDiana Aizman Esq. December 18, 2014 October 21, 2021
Overview Of Health And Safety Code 11375 Under Health & Safety Code §11375, it is illegal for anyone topossess for sale, or to sell synthetic stimulants, synthetic cannabis, or otherprescription narcotics, as listed (below), unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in California.1 Health & Safety Code § 11375 includes…
Read More Understanding Possession For Sale Laws Under 11375 HSContinue
California Laws On Forging or Altering a Prescription
ByDiana Aizman Esq. December 6, 2016 October 21, 2021
This offense is found under Business and Professions Code 43241. Forging or altering a prescription is when you make, utter, publish, pass as genuine or attempt to pass as genuine a prescription for drugs or possess any drugs obtained by a forged prescription. Definition of A Prescription B & P Code 4324 involves prescription or…
Read More California Laws On Forging or Altering a PrescriptionContinue