While marijuana possession is legal if you’re 21 years and above in California, selling it without a valid license is unlawful. If caught with this drug, and there are statements, circumstances, or proof suggesting you aimed to sell it, you could be convicted of possession for sale even if that was not your intention. Therefore, in a situation like this, you need to have an experienced criminal defense lawyer.
At Orange County Criminal Lawyer, we know how to cast doubts in the prosecutor’s evidence and prove your true intentions. If the case against you is strong, we will review it thoroughly and build efficient defenses. And if a win is not feasible, we devote ourselves to obtain the best possible outcome like a charge reduction. We are operational 24/7, so you can contact us at any time.
Overview of Marijuana Possession for Sale
On 1st January 2018, recreational marijuana was legalized in California. This new statute was enacted after voters passed Proposition 64 in November 2016. Proposition 64 is also referred to as the Adult Use of Marijuana Act. However, legalized pot in the state applies only to possession for their own use. Under Health & Safety Code (HSC) 11359, possessing pot for sale could still result in criminal penalties, with the only exceptions being:
- Selling marijuana to grown-ups aged twenty-one and above by businesses authorized to retail recreational pot, or
- Selling medical pot in compliance with California law
A person who sells marijuana without being licensed to do so will be violating HSC 11360, selling marijuana. Similarly, under HSC 11359, it’s still an offense for any person other than an authorized business to have marijuana in their possession intending to sell.
Elements of HSC 11359 Violation
For the prosecution to show that you’re guilty of this crime, they have to prove, beyond a reasonable doubt, all of these facts:
- You had a regulated substance.
- You were aware it existed.
- You were aware of its character or nature as a regulated substance.
- You had the intention to sell it unlawfully. That means without the necessary local and state licenses.
- The controlled substance was weed.
- You possessed a usable quantity.
Let us take a look at these elements in detail:
The Legal Meaning of Marijuana
HSC 11018 defines pot as all the Cannabis Sativa plant parts, whether or not it’s growing. Therefore, weed includes the leaves, seeds, the resin obtained from any of the plant parts, and every salt, manufacture, compound, mixture, preparation, or derivative of the Cannabis Sativa plant, its resin or seeds.
The Legal Definition of Possession
Possessing pot can be constructive or actual. Additionally, more than one person can possess weed together. We call this joint possession. For HSC 11359 purposes, when arrested in actual possession, it means you were holding the marijuana, or it was in an object you were carrying or clothes you were wearing, for instance, your pants’ pockets or gym bag. Actual possession can be shared with two or more people. For example, if you and your friends are using one bong together to smoke marijuana, then you’re in joint & actual control of the drug.
Under constructive possession, you don’t need to have touched or held the pot or even had it on you to be convicted. Merely exercising control or having the entitlement to exercise control over the drug is enough to have you convicted. For example, you cultivate medical weed in your kitchen garden. Since you are entitled to choose what to grow in the garden, you are in constructive possession/control of that pot even when you’re away from home.
It is not even compulsory that you interact with weed to be in its possession. As per the law, marijuana possession can be exercised through someone else (an agent). Consider this example: Bill owns a commercial weed cultivation plant and hires another person to manage the daily operations. Since Bill is exercising control over the marijuana via that person, he has constructive possession of the pot processed or cultivated in that plant even if he never goes there himself.
Like actual control, constructive control can be shared among several parties. For instance, you and friends keep a baggie of weed in your kitchen cabinet. Since all of you are entitled to control the bag, you jointly possess the marijuana even when you’re all not at home, or one of your friends is stoning, and the rest of you aren’t around.
Knowing Marijuana’s Existence
Merely being entitled to control pot isn’t enough to have you convicted under HSC 11359. You also have to be aware that the weed is there. Consider this case: Your friend hides a little marijuana in your kitchen drawer. However, she doesn’t inform you she has hidden the weed, so you do not know it’s there. Although you have control over your kitchen drawer, you are not guilty of violating HSC 11359.
Knowing That Whatever You Possessed Was a Regulated Substance
Before the judge finds you guilty of violating HSC 11359, the DA also has to show that you were aware that the stuff you had in your possession was a regulated substance. However, it is not a must that the prosecution substantiates that you were aware it was weed. One element that could be presented at trial to establish that you were aware you had a controlled drug is your conduct during your arrest. You may be considered to have known you had a controlled drug if:
- You tried to hide or escape when the law enforcement officers were approaching, or
- You seemed unusually nervous during questioning
But an experienced defense lawyer would argue that it wasn’t because you had drugs that you were nervous. Instead, it was the officers’ presence that caused the nervousness.
The Controlled Substance Must Have Been Weed
If the drug in your possession is not pot, you cannot be convicted of marijuana possession, let alone possession for sale.
There Need to be a Usable Quantity of Marijuana
To be convicted under HSC 11359, you need to have had a usable quantity of marijuana. Usable quantity means an amount that’s enough to have a person stoned. If what the officers found was only marijuana traces or debris, you can’t be convicted even if cash, baggies, scales, or other circumstantial evidence was discovered.
Intention to Sell Pot Illegally
For HSC 11359 purposes, ‘to sell’ means to exchange marijuana for services, money, or anything else of value. Instances of selling may include giving a person weed in exchange for sex, an apartment, them to clean your house, other drugs, or fulfillment of your debt.
Because California legalized recreational marijuana in 2016, marijuana possession intending to sell is only an offense if you aimed to sell it illegally.
Direct Evidence to Prove Intent
At times, there’ll be direct proof of your intention to sell weed. Direct evidence may include:
- The police spotted you exchange pot for money, services, or anything of value.
- Your statements, for example: ‘I have marijuana to sell.’
Circumstantial Evidence to Prove Intent
The intent will more likely be proven but by circumstantial proof. Establishing intent is often the weakest point of the DA’s case. Circumstantial evidence may include:
- The marijuana quantity was more than a few ounces.
- The equipment discovered with the pot, for example, scales and baggies
- You had weed in a location where the illegal selling of pot or other controlled substances often occurs.
- The way you packaged the drug, e.g., several multiple vessels each having an equal amount of marijuana
- Weapons or cash discovered with the weed
- An expert’s opinion that the pot was being possessed for sale.
Let’s look at some of these circumstantial pieces of evidence:
Marijuana Quantity With Which You Are Arrested
HSC 111359 doesn’t say anything about quantity. But courts have directed that marijuana quantity can be circumstantial proof of possession for sale. But then, how much does the law consider what’s too much? An individual who smokes weed daily may use more than one ounce of pot in one week. This translates to about a pound every three to four months.
However, when appropriately stored, pot can last for months and sometimes even years. Several people buy pot in large quantities to save cash. Others purchase plenty of it to share with their friends. Whichever way, one can reasonably possess one or more pounds of marijuana without intending to sell it. Yet you can be convicted depending on not anything else, but an expert’s testimony that the quantity you had indicated possession for sale.
Even a person who has the legal right to possess and use weed can be required to defend the marijuana amount that they smoke at a given period. This is one of the reasons you should have a skilled criminal defense lawyer by your side when accused of possession of marijuana for sale without authorization.
The Way of Packaging
Most persons who possess marijuana for their use store it in one container. Thus, if weed is packed in several baggies or small vessels, the prosecution and police assume that it’s for sale, particularly if they’re of equal size or weight. This is especially true if the police found equipment like baggies, scale, or any other containers with the pot. However, not everyone keeps marijuana similarly. There are several valid reasons a person may keep marijuana in separate vessels. They include:
- The containers have different varieties of marijuana
- The pot was already packaged in separate baggies when buying it
- You’re rationing your everyday use
For instance, say you have Crohn’s disease. You decide to try pot as a treatment option. A pharmacy recommends several different varieties of marijuana, and you opt to experiment on all of them. On your way home, the police stop you for a traffic violation. When he checks your car, the officer finds nearly one pound of marijuana packaged in baggies of the same size and arrests you for marijuana possession for sale. In a case like this, your attorney should be capable of proving that you intended to try out the different pot varieties to know which works best. The prosecution may then dismiss the charges against you.
The Discovery of Weapons or Money With the Marijuana
There’s nothing unlawful about storing large quantities of money at home. Most people in the state do it because they do not trust banks or something uncertain like an earthquake. Similarly, for many people, there’s nothing illegal about having a firearm in their homes. Yet, it is unfortunate that exercising your legal right to have a gun or saving money at home can result in a conviction under HSC 11359.
An experienced defense lawyer can often prove how your weapon and money are not related to any weed sales. When they do this, your charges may be reduced or dismissed.
Penalties for Violating HSC 11359
Marijuana possession intending to sell without authorization is charged as a misdemeanor in most cases. The consequences are a jail sentence for a maximum of six months and a fine not exceeding $500. However, after Proposition 64, marijuana law imposes felony punishments for possession for sale if whichever of these is true:
- You have a past conviction of any severe violent felony, like sexually violent crimes, murder, gross vehicular homicide while DUI, a sex offense that requires sex offender registration, or sex offenses against a minor below 14 years.
- You have two or more previous convictions for possession of pot intending to sell.
- You possessed weed for sale, and you intended to knowingly sell/attempt to sell to a person below eighteen years.
If the above situations apply, you will be subject to three or two years or sixteen months in prison.
No Drug Treatment (Diversion) Program
You don’t qualify for a drug treatment program instead of jail for marijuana possession for sale. Drug diversion programs are only imposed in cases to do with simple possession and cultivation for own use of excessive pot than is allowed by the state laws. Therefore, your lawyer can try negotiating for the prosecution to reduce your charges to HSC 11357, simple possession, although both possession to sell and simple possession are misdemeanors as per Proposition 64.
Probation Under HSC 11359
You could qualify for misdemeanor probation rather than a jail sentence. If the judge grants probation, you won’t serve a jail sentence for HSC 11359. However, you’ll be required to comply with various conditions, including:
- Paying restitution
- Participating in a group or individual therapy
- Filing progress reports with the court
- Submitting to drug tests any time you are required to do so
- Community labor/service
- Agreeing to a search of your property or person without or with a warrant
HSC 11359 Violation and Immigration
A conviction under HSC 11359 is considered an aggravated felony as per the Immigration & Nationality Act, regardless of whether that conviction was under federal or California law. The penalties for a criminal conviction for weed possession as far as immigration law is concerned may include deportation in case:
- You’re an undocumented immigrant
- You enter a guilty plea, or the court finds you guilty of marijuana possession for sale
Legal Defenses to Marijuana Possession for Sale
The impact of a drug conviction can follow you into the future and the rest of life. However, with help from a competent marijuana attorney, you may be capable of fighting the charges and avoid the stigma of a conviction or reduce the effects by negotiating a charge or penalty reduction.
Criminal cases are based on the unique facts and testimony. Thus, a lawyer can review and analyze the evidence and facts the prosecution is using to support the charges against you and discuss with you the best way to proceed. There is a chance you may have ideal options to fight your case. Based on the facts, possible defense strategies your attorney can argue in your case include:
- You did not know the marijuana was there.
- You’re the primary nurse for a patient using medical marijuana, and the pot was for their personal use.
- The marijuana was for your use.
- You wanted to share a portion of the marijuana with friends and not to sell it illegally.
- The pot was discovered during an unlawful search or seizure.
- You were going to dispose of the weed.
Resentencing Under Proposition 64
Prop. 64, enacted in 2016, provides for sentence modification (resentencing) for offenders convicted under the state’s previous marijuana statutes, who would face a reduced sentence in this pot legalization era.
Suppose you’re presently doing a felony prison term under the previous version of HSC 11359, but you would’ve been convicted of a misdemeanor under Proposition 64. In that case, you can send your application to the court requesting to have the sentence decreased.
The court is then supposed to deduce that you meet the basis for Prop. 64 sentence modification unless the prosecuting attorney contests your petition. If the prosecution challenges your request, they have to prove by clear & convincing proof why you do not meet the basis for resentencing. If they fail to do so, the judge ought to modify your sentence except if he/she establishes that doing that would pose a threat to public safety.
Resentencing may result in your immediate release from custody based on the amount of the prison time you had already served.
The same applies if you’ve already completed your felony sentence for weed possession to sell. Pot legalization means you can request the court to redesign your conviction from a felony to a misdemeanor.
Consider this example: Marina was found guilty of marijuana possession for sale in 2010, which by then, it was a felony. She served a prison sentence of two years and was released. By the time of the enactment of Proposition 64 in 2016, she had completed her sentence. HSC marijuana possession intending to sell is now considered a misdemeanor for offenders like Marina. Although she served her sentence, she applies to the court requesting the change of her crime to a misdemeanor, and her request is granted. Consequently, Marina’s criminal record doesn’t include a felony anymore.
Federal Law on Marijuana Possession for Sale: The Federal Controlled Substances Act (CSA) – Title 21 of the United States Code (USC)
The federal CSA is provided for under Title 21 of the USC. It categorizes pot as a Schedule 1 hallucinogenic substance with a higher possibility of being abused and no presently recognized medical use. 21 USC 841(a)(1) illegalizes possessing pot intending to sell. A first violation involving not more than 50kg of weed or less than fifty plants is punished by a prison sentence of five years and a maximum of 250,000 dollars in fines. Longer prison times and substantial fines apply in subsequent crimes or more significant quantities.
According to the Supremacy Clause of Article VI of the United States’ constitution, federal law outweighs state law. Therefore, technically, you violate both California and federal statutes when you have weed, and you intend to sell it.
Generally, though, the national government only goes for large-scale traffickers of controlled substances. If the marijuana quantity isn’t substantial or further federal offenses aren’t involved, you will likely not be charged under the federal statute.
However, the Attorney General of the U.S, Jeff Sessions, annulled the Obama government’s ‘hands-off’ policy to federal pot prosecutions. As per the new approach, discretion is entirely left to federal prosecuting attorneys.
There hasn’t been any word that California-based federal prosecutors intend to prosecute any person who possesses weed in compliance with the state law. However, users and possessors should know that the federal statute applies to the national government’s lands within the state. If you are caught in possession of pot for sale on federal property, you’ll likely face prosecution under the federal Controlled Substance Act. Federal properties include federal courts, post offices, national parks, and airports (beyond the security zone).
Contact a Drug Crime Attorney Near Me
The police don’t always interpret facts correctly. Sometimes, they may omit or exaggerate critical elements to make their desired conclusion. Cases like this are so common in arrests under HSC 11359. Factors that may otherwise point towards possession for own use may easily be mistaken, distorted, or omitted to secure an arrest and conviction of possession for sale. For this reason, at the Orange County Criminal Lawyer, we review the police report and prosecution’s evidence to discover the finest of details. We will also conduct our independent investigation to find the omitted facts and argue valid defenses to obtain the best possible results. Call us at 714-262-4833 for any concerns you have and to share the details of your case.