California Health and Safety Code 11359 forbids the possession of marijuana with the intent to resell it. If found guilty of possessing the drug and intending to sell it, you risk serving a significant prison sentence. Only two major outlets in California are permitted to offer the medication.
These include medicinal marijuana shops and licensed enterprises that sell marijuana for recreational use. As a result, you should obtain legal counsel as soon as you are accused of selling marijuana. At Darwish Law, we are skilled at casting doubt on the prosecution's case.
We begin by researching the charges against you and crafting a solid defense. We are devoted to making sure your case has the finest result possible. We are open around the clock, so you can contact us whenever you need assistance in Santa Ana.
How the Law Defines Marijuana in California
Marijuana is defined under California Health and Safety Code 11018. The law states that marijuana includes all elements of the Cannabis sativa plant, living or dead. Therefore, marijuana refers to all plant parts, including seeds, leaves, and compounds.
Possession
Joint, actual, or constructive possession of marijuana is an acceptable form of possession. Having the substance in your actual possession involves keeping it in your purse or pocket. When you share the substance or are hiding or retaining it with another person, you can also take actual ownership of it.
You must not touch or hold the drug to have constructive possession.
However, you manage it from a different place. You might raise marijuana on your farm, for instance. Therefore, you are in constructive possession of the marijuana when law enforcement authorities find it on your farm. When you possess the drug through an agent, you also have constructive possession of it.
If, for example, you run a marijuana plantation and employ someone to work there every day, you are seen as having constructive possession of the drug. You and another person jointly own the drug if you have joint possession. Thus, its production, harvest, and sale are under your joint control.
Elements of Possession of Marijuana Under California PC 11359
When the prosecutor claims you possess marijuana for sale, they must prove various elements. Failure to prove the elements of the crime means you cannot face conviction. The elements include:
You Knew the Presence of the Marijuana
Before you face a conviction for possessing marijuana for sale, you must be aware of the presence of the drug. For example, if you live in the same apartment as your friend who had marijuana in their bag, you are not guilty of possessing marijuana since you were unaware of its presence. But when law enforcement officers find the drug in your kitchen or bedroom, you can face charges for possessing the drug.
The Substance in Question was Marijuana
Before the court finds you guilty under HSC 11359, marijuana must be the claimed substance. Therefore, the prosecution must show that the substance was marijuana and not another drug. This means that if the substance is not marijuana, you cannot face a conviction under HSC 11359.
The Amount Of Marijuana
Before you face conviction, there must be enough chemicals for another person to consume. So, even if other evidence suggests that you had the substance for sale, you cannot be charged with possessing marijuana with the intent to sell when law enforcement officials find traces of marijuana or debris.
You Controlled the Drug
To face conviction, you must have known the substance you controlled was marijuana. How you respond to the police officers during your arrest can help determine if you knew the substance was marijuana.
Your Intent to Sell the Substance
According to HS 11359, the sale of marijuana involves exchanging the substance for services or money. For example, you might give the substance to another person in exchange for the following:
- Sex.
- Another drug.
- Paying a debt.
- An apartment.
- Money.
Since the drug was legalized in 2016, having it with the intent to sell it may be against the law if you do so outside of the licensed or authorized marijuana sale system. Black markets may be an illegal platform. The prosecutor can demonstrate the sale of the substance using both direct and indirect evidence.
When the police see you exchanging the drug for money, this can be evidence. By using circumstantial evidence, the prosecutor must demonstrate that the circumstances of your case indicate you intend to sell the drug. The prosecutor can use the following elements to provide circumstantial evidence:
- Availability of scales and baggies.
- Money and guns are found beside marijuana.
- Marijuana is packaged in baggies with comparable proportions.
- Marijuana's availability in locations like the black market.
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Quantity of Marijuana
The law does not outline a specific quantity of marijuana that can make a person responsible for possessing the drug for sale. However, the prosecutor can still prosecute you when you hold marijuana weighing between five and ten pounds. If you are legally allowed to own the drug, you may defend the high amount you possess.
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Packaging of the Drug
Many people who possess marijuana for sale keep it in containers. But when the substance is packed in small containers or bags, especially with similar sizes and weights, it might be suspicious that you want to sell it.
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Presence of Cash and Weapon Alongside Marijuana
Keeping a lot of cash on hand in your house is legal. However, it might be against the law for some people to possess guns in their residences. Therefore, if the authorities search your home and discover marijuana, weapons, and money, they might assume you are trying to sell the drug. The prosecutor can use this evidence to show you intend to sell the drug.
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Presence of Drug Paraphernalia
When the police officers discover apparatus or drug paraphernalia during your arrest, they can conclude you possessed the substance for sale. The common instruments or apparatus used in drug peddling include containers, small baggies, and weight scales.
Possible Punishment for Possessing Marijuana for Sale in California
Possession of marijuana with the intent to sell it is a misdemeanor crime in California. Up to six months in jail might be the crime's punishment. Since Prop 64 was passed, there have been some circumstances in which having marijuana to sell could result in felony charges. For example, you will be charged with a crime if you have been convicted of a felony. The major felonies include murder, sexual assault, vehicular manslaughter, and sex crimes.
If you have more than two prior convictions for marijuana possession with the intent to sell, you could additionally be charged with a felony. Again, you might be charged with a felony if you have marijuana intended for sale to those under 18. Penalties for the felony charge start at 16 months, 24 months, or 36 months.
Drug Diversion/Treatment
If you are found guilty of possessing marijuana and intending to sell it, you are ineligible for drug treatment. Only marijuana is eligible for drug diversion for simple possession. Additionally, those who grow more marijuana than is legal have access to services for drug diversion.
Your counsel can convince the judge to drop your charges of simple marijuana possession so you can enroll in a drug rehabilitation program. Ask your lawyer for advice if you have any questions concerning drug diversion programs in California.
Probation
Instead of facing an extensive jail term, the court may recommend you serve a misdemeanor or summary probation. When the court grants probation, it does not inflict a jail term on your sentence. However, you must comply with several conditions or restrictions. The court can cancel the probation when you violate the conditions of the probation. The restrictions or conditions include:
- Payment of restitution.
- Community service or community labor.
- Submitting to drug testing.
- Searches for your property without a warrant.
- Reporting to your probation expert regularly.
Therefore, when the court grants you probation instead of a jail term, ensure you adhere to the conditions and restrictions of the probation. Always consult your attorney if you want to make a decision that can impact your probation.
HSC 11359 and Immigration Consequences
According to the Immigration and Nationality Act, a conviction under the statute is a felony under federal or California laws. When you are an immigrant and you face conviction for violating HS 11359, you face deportation when:
- You are an undocumented immigrant.
- The criminal court finds you guilty of possessing marijuana, or you enter a guilty plea deal.
The Legal Defenses to Possession of Marijuana for Sale
To prevent being found guilty of selling marijuana for sale, you should fight the charges. Fortunately, there are several defenses that your attorney can raise to have the allegations against you dropped or lessened.
Your criminal defense lawyer may employ several arguments to prevent you from being found guilty of possessing marijuana with the intent to resell it. The lawyer should evaluate the available defense tactics and employ the one that best fits your circumstances. The following are possible defenses that your attorney could raise to counter the allegations:
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Licensed Marijuana Dealer
Sometimes, the police might mistake you for an unlawful marijuana seller, leading to your arrest. If the prosecutor legally prosecutes you for selling the substance, you can present your trading license to prove you are an authorized marijuana dealer. You want to ensure your license is updated. Also, ensure your business meets the requirements and regulations for its operations.
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Unlawful Seizure
Law enforcement may go above and beyond the call of duty to gather evidence against you. They may conduct a drug raid on your home or car if they believe you may be concealing marijuana for sale. California law enforcement agents must acquire a thorough search warrant to conduct searches.
You could assert that you were the victim of an illegal search if law enforcement officials entered your home without a warrant. Once more, you may argue that police searched your property beyond what was allowed by the search warrant when the scope of the search was exceeded.
To challenge police misconduct and have the court drop your charges, your attorney may submit a legal argument. Make sure to describe your matter to your attorney fully. After dismissing your case, the judge will dismiss the evidence the police collected.
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Lack of Knowledge
If you are unaware that marijuana exists, you are not guilty of possessing it for sale. You could occasionally be accused of having drugs even though you were unaware they were on your person or property.
For example, someone might secretly put marijuana in your automobile. In particular, if you have never been convicted of a drug-related offense before, you may be able to convince the court that you were unaware of the drug's presence.
The kind of drug you have in your possession is another thing you should know. According to HS 11359, you are not guilty if someone offered you something to sell but had no idea what it was.
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Possession of Marijuana for Personal Use
Law enforcement officers may mistake you for having marijuana to sell while, in a real sense, the marijuana is for personal use. Prop 64 allows you to possess marijuana for recreational use. However, there is a limit on the amount of marijuana you can possess.
According to Prop 64, you want to possess a maximum of 28.5 grams, or six plants. Therefore, if the marijuana found on your person or property falls under the limit, you cannot be convicted of possessing marijuana for sale.
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The Drugs were for Medicinal use
Doctors recommend medical marijuana for patients suffering from chronic illnesses like cancer. You may be a patient relying on medicinal marijuana or a caregiver. In this case, you can possess a reasonable amount of marijuana for medical reasons.
You want to have appropriate documents showing your condition. If this is your case, you cannot face a conviction for possession of marijuana for sale, as there is no limit on the amount of marijuana you want to use for medicinal purposes.
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Marijuana was for Your Future Use
As a habitual marijuana user, you may possess large amounts of pot for future use. When the police officers find you with a lot of marijuana, they assume you want to sell it. However, you may argue that the pot is for future use. If the marijuana is in small bags, you may argue that you bought it in small bags.
You may also argue that you want to share the pot with your friends. The prosecutor cannot prove your intent to sell the substance. Therefore, the court will dismiss your charges.
Other Offenses Related to Possession of Marijuana for Sale
Several offenses are closely related to the possession of marijuana for sale. Your criminal defense attorney can use the offenses to reduce your charges when they attract less severe punishments. The crimes include:
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Illegal Cultivation of Marijuana - HS 11358
According to the law, any person over 21 can cultivate, process, or harvest a maximum of six plants of marijuana without violating the law. The law started working after passing Prop 64. Therefore, when law enforcement officers find you planting more than six marijuana plants, it becomes an offense.
You face a misdemeanor charge. The punishment for the crime includes a six-month jail term. If you have a record of severe violent felonies registered as a sex offender, the offense can become a felony charge. When you violate specific environmental laws when cultivating the drug, you face a felony charge.
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Illegal Sale of Marijuana - HSC 11360
Under Prop 64, you can only sell marijuana with a valid license. So, if you do not have a valid license, you can be prosecuted with either a felony or misdemeanor charge based on the circumstances of your case. The prosecutor must prove the elements of the offense before you face conviction. When a misdemeanor is charged, you will face a jail term of six months. The penalties for felony charges will vary depending on the following factors:
- You have previous felony or sex crime convictions.
- Whether you sold the substance to a person aged below 18 years.
- If you have more than two prior convictions for selling or transporting marijuana.
Contact a Criminal Defense Attorney Near Me
You should consult an attorney versed in California marijuana laws if you are accused of possessing marijuana to sell. To assist you in obtaining the case dismissed or the charge reduced, the attorney will review your case and look for flaws that could have been detrimental.
At Darwish Law, we have experience managing cases involving marijuana-related drug offenses. We have assisted our clients in achieving outstanding results. We perform independent investigations to uncover the missing information and create a solid defense plan. We are prepared to work with you if you need our assistance in Santa Ana. Call us at 714-887-4810 if you have any questions or want to discuss the specifics of your case.