Under California Health and Safety PC 11359, it is illegal to possess marijuana for sale. If you are convicted of marijuana possession with an intention to sell, you could spend a significant period in jail. There are only two outlets under California law that have licenses to sell marijuana. They are Medical Marijuana Dispensaries and those businesses with an express license to sell recreational marijuana to individuals above 21 years.
If you don't fall under these categories, it's illegal to possess marijuana for sale. If you are arrested and face charges for marijuana possession for sale, the Leah Legal can be of great help. We have competent attorneys in Van Nuys, CA, who can help you develop the best defense against your charges.
Contact Leah Legal anytime 24/7 by calling 818-484-1100, and we will give you a free legal consultation and can immediately get started on building you a solid defense!
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Possession of Marijuana
Under PC 11359, possession occurs in three forms. These forms include joint, constructive, and actual possession. When you share possession of marijuana with another person, you have joint possession. For instance, if marijuana is discovered in a house you share with your wife, both of you're in joint possession of marijuana.
When marijuana is discovered in an area, you have control over or access to; you have constructive possession. For instance, if the drug is discovered in your basement, you have constructive marijuana possession since you always access the basement. If marijuana is located inside your briefcase, purse, or pocket, you’ve actual possession of the drug. You are in actual possession of marijuana as long as it’s on your person.
Elements of Marijuana Possession under PC 11359
It’s an offense to possess marijuana for sale under California Health and Safety PC 11359. When the prosecutor accuses you of possessing marijuana for sale, he or she must prove several elements. The prosecutor has to prove that:
- You were aware of its presence (the marijuana)
- You possessed a significant or usable amount of marijuana
- You intended to sell the marijuana
- You were aware of the product's character or nature as marijuana
- The substance was marijuana
You Were Aware of its Presence
If you’re accused of possessing marijuana for sale, the prosecutor must prove beyond doubt that you knew of the drug’s nature as marijuana and that you knew you possessed marijuana. For the prosecutor to prove that you knew that the drug you possessed was marijuana, he or she doesn't need to prove that you were aware of its effects, chemical composition, or the exact name. The only evidence he or she requires is that you knew that the drug was marijuana.
You Possessed a Usable or Significant Amount of Marijuana
If traces or residues of marijuana can’t elicit the drug’s reasonable effect, then they aren’t enough evidence for charges under PC 11359. The amount of marijuana you possess should be in the quantity that can be consumed by the individual you intend to sell to.
You Intended to Sell Marijuana
If the prosecutor accuses you of possessing marijuana for sale, he or she must prove that you had marijuana for selling. However, if you possessed marijuana for your personal use, then the charges against you under PC 11359 don’t apply. Possessing marijuana for your use is legal under California law. In some instances, the prosecutor may charge you simple possession of marijuana. Simple possession of marijuana has fewer penalties or even none than possession of marijuana for selling.
Circumstantial evidence normally proves the intention behind your marijuana possession. The prosecutor will look out for certain signs that you possess marijuana intending to sell. Some of the factors that could portray your intention to sale marijuana include:
- Packaging of the drug in multiple baggies
- Presence of many cell phones
- Presence of weighing scales or instruments used to measure or separate the drug
- Receipts and ledgers
- Absence of drug paraphernalia
- When you’re under marijuana influence
- The amount of marijuana you possessed was more than several ounces.
- You had large amounts of cash and weapons alongside the pot
- You have a history of selling pot or other drugs.
- The law enforcement officers witnessed you engaging in a transaction of sale of marijuana. If the police witness you exchanging marijuana with cash or any other item of value, it’s an indication you possessed marijuana for sale.
How you package marijuana can be favorable evidence in your favor or damning evidence against you. If you package marijuana in many small baggies, it proves your intention to distribute or sell the drug. On the other hand, if you package marijuana in a single bag, it could be a clear suggestion that you just intended to have it for personal use.
The presence of drug paraphernalia such as syringe, pipe, or any other instrument used to consume marijuana indicates that you possessed marijuana was for personal use. However, the absence of drug paraphernalia shows that you possess marijuana for selling. Furthermore, the availability of an instrument such as a scale used to separate or measure marijuana shows that you intended to sell it.
The presence of ledgers, receipts, or many cell phones, indicates possession of transactions related to the sale of marijuana. Individuals who deal with drugs often carry many cell phones to dilute their transaction evidence or cover their tracks.
It could be a clear indication that you possess marijuana for personal use, if you were under marijuana influence at the time, it was found in your possession. However, this fact doesn't refute your intention to sell marijuana. You could sell it and still possess it for personal use.
Punishment for Possession of Marijuana for Sale
In most cases, possession of marijuana for sale is a misdemeanor crime under California law. The offense’s punishment includes jail time of not more than six months in a county jail in California. You may also have to pay a fine that does not exceed $500.
After the passage of voter Proposition 64, you could face felony charges for marijuana possession for sale under certain circumstances. You will get a felony conviction if you have a prior conviction for serious felonies. Serious felonies under California law include sex crimes, sexually violent offenses, murder, and vehicular manslaughter while intoxicated, among others.
You’ll also be guilty of a felony if you have two or more convictions for marijuana possession for sale, you’ll automatically face felony charges. You’ll be guilty of possessing marijuana for sale if possessing the substance for sale to a person below 18 years.
For felony possession of marijuana for sale, the penalties include imprisonment for 16 months, two years, or three years in county jail.
You will not be eligible for a drug diversion program if you are guilty of possessing marijuana for sale. Drug treatment or diversion instead of jail time is only available for the crime of simple possession of marijuana. The drug diversion is also available for the crime of cultivating more than the allowable amount of marijuana. Therefore, your attorney can attempt to negotiate your charges down to simple marijuana possession to allow you to participate in a drug diversion program instead of jail.
The court may recommend a summary or misdemeanor probation instead of jail time. If the court grants probation, you’ll not face jail time for possession of marijuana for sale. However, you'll have to abide by several restrictions or conditions for probation. If you don't abide by the probation conditions, the court may cancel the probation and impose jail time. Some of the conditions of probation that you may have to abide by are:
- Payment of restitution
- Submitting to drug testing
- Filing your regular progress reports with the court
- Participating in a group or individual therapy
- Community labor or community service
- Searches of your property or your person without a warrant
Legal Defenses for Possession of Marijuana for Sale
Under California PC 11359, there are several defenses to fight your charges of possessing marijuana for sale. Depending on the circumstances, the defenses include:
You didn’t Possess Marijuana
The circumstances surrounding your charges may show that you never gained access to the drug or didn’t know that it was in your possession. For instance, you may contact a marijuana dealer on the internet and arrange to buy it. The two of you may plan to conduct the buying at an agreed place. It may happen that the police arrested you before arriving at the transaction destination. In this situation, even if you had the requisite intention, you never possessed or took control of the drug. Therefore, you cannot be guilty of the PC 11359 violation.
You Didn’t Intend to Sell
Often the police interpret the simple possession of marijuana as an intention to sell the drug. However, you may possess a drug only for your personal use. Under California law, possession by itself doesn’t mean that you intend to sell. If the prosecutor fails to give strong evidence against your possession charges, his or her arguments may weaken the case that you possessed the drug for sale.
Unlawful Search and Seizure
If the police use the warrantless search of your home or vehicle, or if their search exceeded the warrant's scope, you are a victim of illegal search and seizure. In this case, your attorney may file a better argument to challenge improper police conduct. Unlawful search and seizure of your property are against California's law, and your attorney can use it to negotiate the dismissal of your case.
The Marijuana was for Medical Use
If you or your primary caregiver possessed marijuana for medical use, you can’t face charges for marijuana possession for sale. The charges will not apply even if the marijuana you possessed is more than the allowable legal limit. It's common for doctors to recommend medical marijuana to patients suffering from certain conditions, especially chronic and terminal illnesses like cancer. In the case of medical marijuana, you can possess as much marijuana as your doctor deems necessary.
The Marijuana Was for Your Future Use
Habitual pot users may possess large amounts of pot to store some for their future use. The law enforcement officers may assume that the pot was for sale because you possessed a large amount of the product. However, you can point out that the pot was for your use. If you had placed the pot in separate small bags, you could state that it was already packaged in the bags when buying it.
You could also state that you were planning to share some of the pot with your friends and not sell it. In this case, the police may charge you with the crime of simple possession of marijuana. Simple possession of marijuana is a lesser offense than possession of marijuana for sale. Therefore, it would be better to have your charges reduced to simple possession instead of possession for sale.
You Were Disposing Of the Marijuana
You could also fight marijuana possession for sale charges by pointing out that you were in the process of disposing of the marijuana at the time of the arrest. However, it might be hard for you to convince the police of this fact.
Lack of Knowledge
You can’t face charges for marijuana possession for sale if you didn't know about the presence of marijuana. Even if the marijuana was on your person or in a location over which you have control, you are not guilty if you didn't know the marijuana was there. You must also have known that the substance you possessed was marijuana. If a person places the pot in your backpack or your pocket without your knowledge, the prosecutor can't accuse you of possession of pot for sale.
How can the police tell that you knew about the presence of pot? It would be obvious that you were aware of the presence of pot if you tried to hide from the police. If you appeared extremely nervous at the time of the search, it could indicate that you knew about pot’s presence.
No matter how complicated your situation seems, it’s always possible to create a convincing defense. All you need is the assistance of a competent attorney to guide you through the process. Most people who possess large amounts of marijuana for personal use are often charged with marijuana possession for sale. You should never face a false accusation of intending to sell pot in the black market, yet you only possessed the marijuana for your use.
Attorneys understand all the tactics that law enforcement officers and prosecutors use. An attorney can challenge the prosecutor’s allegations and find any lapses or false evidence. You should contact an attorney immediately after your arrest to give him or her ample time to evaluate your case and defend you.
Crimes Related to Possession of Marijuana for Sale
Certain crimes are closely related to the crime of possession of marijuana for sale. Some of the related offenses are:
- HS 11357 – Simple Possession of Marijuana
- HS 11350 – Cultivation of Marijuana
- HS 11360 – Sale of Marijuana
- CVC 23222 (b) – Driving with Marijuana
Simple Possession of Marijuana
According to California HS 11357, it’s a crime for people above the age of 21 to possess more than 28.5g of marijuana. It’s also an offense to possess more than 8g of concentrated cannabis. The crime of simple possession is a misdemeanor offense. The penalties for the offense include jail time of up to six months in county jail. The court may also recommend a fine of not more than $500. If a person below 21 years possesses marijuana, the offense is a crime and is an infraction.
Cultivation of Marijuana
California law allows persons above 21 years to cultivate up to 6 marijuana plants. It's a crime to cultivate more than six marijuana plants. It’s also a crime to cultivate marijuana in a place where the law does not allow. For the majority of defendants, the cultivation of marijuana is a criminal offense. However, in some instances, the cultivation of marijuana is a felony, especially if you have prior convictions or a history of committing violent felonies.
Sale of Marijuana
The sale of marijuana in California is only allowable if you have a valid license to do so. It’s a misdemeanor offense to transport or sell pot if you don’t have a valid license. If you have a prior conviction for violent felonies or two convictions for sale of marijuana, you’ll face felony charges for a subsequent offense of the sale of marijuana.
Driving with Marijuana
It’s an offense to possess an open can of marijuana in your vehicle. This crime is almost similar to that of driving with an open container of alcohol. Driving with marijuana is an infraction punishable by a fine that does not exceed $100.
Find a Drug Crimes Criminal Defense Attorney Near Me
The crime of marijuana possession for sale could attract misdemeanor or felony charges, depending on its circumstances. After a conviction for this crime, you’ll not be eligible for drug treatment or diversion. The potential consequences include jail time, probation, and fines. You should not give up after an accusation of possession of marijuana for sale. Leah Legal provides reliable legal services in Van Nuys, CA. We can help you create a suitable defense to fight the charges. Contact us at 818-484-1100 and speak to one of our attorneys.