POSSESSION OF MARIJUANA FOR SALE (HS 11359)

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To prove you guilty of possessing marijuana for sale, a violation of Health & Safety Code Section 11359(b), the DA must show:

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1. You unlawfully possessed a controlled substance (here, marijuana);

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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. When you possessed the marijuana, you intended to sell it or have someone else sell it.

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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 hand-to-hand. But, that's not necessary to prove someone guilty. Exchanges can, and often are, much more subtle. For example, baggies of marijuana do not have to be on your person to show you have possession. 

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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 Health and Safety Code Section 11360(a)(2), 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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§ 11359. Possession for Sale.

• Every person who possesses for sale any cannabis, except as otherwise provided by law, shall be punished as follows:

  • (a) Every person under the age of 18 who possesses cannabis for sale shall be punished in the same manner provided in paragraph (1) of subdivision (b) of Section 11357.

  • (b) Every person 18 years of age or over who possesses cannabis for sale 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.

  • (c) Notwithstanding subdivision (b), a person 18 years of age or over who possesses cannabis for sale may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code if:

    • (1) 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;

    • (2) The person has two or more prior convictions under subdivision (b); or

    • (3) The offense occurred in connection with the knowing sale or attempted sale of cannabis to a person under the age of 18 years.

  • (d) Notwithstanding subdivision (b), a person 21 years of age or over who possesses cannabis for sale may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code if the offense involves knowingly hiring, employing, or using a person 20 years of age or younger in unlawfully cultivating, transporting, carrying, selling, offering to sell, giving away, preparing for sale, or peddling any cannabis.​

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