UNLAWFUL SALE, TRANSPORTATION, IMPORTATION OR GIFT OF MARIJUANA (HS 11360(a)(2))

 

To prove you guilty of unlawful sale or transportation of marijuana, a violation of Health & Safety Code Section 11360(a)(2), the DA must show:

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1. You unlawfully sold (or transported, gave away, furnished, administered, or imported into California) a controlled substance;

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2. You knew of its presence;

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3. You knew of the substance's nature or character as a controlled substance; and

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4. The controlled substance was marijuana.

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Also, if it's at issue, the DA must show the marijuana was in a usable amount (not useless traces or debris).

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Generally, for this crime, you picture a dealer exchanging weed for money. But, actual sales are not necessary to prove someone is guilty here. Simply administering marijuana can also get you in trouble. To administer means you cause another person to inhale, ingest, or otherwise consume the substance. Say you simply passed a joint to another to smoke (assuming the parties are not smoking under legal circumstances), technically, you just administered a controlled substance. That said, I've never seen a case filed against someone for letting a friend get high for free (unless you're an adult getting underage high school students high). 

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PUNISHMENT

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This is a misdemeanor with a maximum sentence of 180 days county jail and/or $500 fine plus assessments. Generally, defendants who are convicted of this offense receive a 2-3 year probationary period (informal/court/summary probation with no probation officer) and between 1-30 days of Sheriff's Work Program. This offense does not qualify for a pre-plea diversion sentence (where if you successfully complete drug classes, the case gets dismissed). 

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WHAT ABOUT PROP 64? ISN'T WEED LEGAL NOW?

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On January 1, 2018, the law changed making it now legal for businesses that are properly licensed to sell marijuana to sell adults 21-years-old and older marijuana for recreational use. The key here is licensed businesses are allowed to sell, transport, give away weed, etc.; that doesn't mean anyone can do so. 

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DEFENSES

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One possibility, for example, is attacking whether any direct evidence exists of you exchanging money (a witness who would testify he saw you). An undercover officer may have been near an exchange where the circumstances made it seem likely a sales transaction occurred. But, the circumstantial evidence may not be enough to prove you guilty at trial. Maybe you were just giving a friend some marijuana. Now, giving away weed still meets the elements of the crime and thus you're not off the hook. However, if the amount was under 28.5 grams, you're entitled to an infraction. 

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Your attorney may be able to show an illegal search occurred or, in some cases, that you were entrapped. 

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In many cases, attorneys try to persuade the powers that be that the amount of marijuana their client possessed was for personal use, not sales. 

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FULL CODE SECTION IF YOU WANT TO READ IT

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§ 11360. Unlawful transportation, importation, sale, or gift

• (a) Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana cannabis shall be punished as follows:

  • (1) Persons under the age of 18 years shall be punished in the same manner as provided in paragraph (1) of subdivision (b) of Section 11357.

  • (2) Persons 18 years of age or over shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.

  • (3) Notwithstanding paragraph (2), a person 18 years of age or over may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three, or four years if:

    • (A) The person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code;

    • (B) The person has two or more prior convictions under paragraph (2);

    • (C) The offense involved the knowing sale, attempted sale, or the knowing offer to sell, furnish,administer, or give away cannabis to a person under the age of 18 years; or

    • (D) The offense involved the import, offer to import, or attempted import into this state, or the transport for sale, offer to transport for sale, or attempted transport for sale out of this state, of more than 28.5 grams of cannabis or more than four grams of concentrated cannabis.

• (b) Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of cannabis, other than concentrated cannabis, is guilty of an infraction and shall be punished by a fine of not more than one hundred dollars ($100). In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, that person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his or her written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.

• (c) For purposes of this section, “transport” means to transport for sale.

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