CALIFORNIA HEALTH AND SAFETY CODE 11359 HS – POSSESSION FOR SALE OF MARIJUANA

California has implemented various regulations and statutes to govern the possession, cultivation, and distribution of marijuana. One significant aspect of these laws is California Health and Safety Code Section 11359 HSC, which relates to the possession for sale of marijuana typically categorized as an infraction or misdemeanor. However, when it comes to possessing marijuana with the intent to sell, the legal landscape changes considerably. Under California Health & Safety Code Section 11359 HSC, this offense is treated as a felony crime and carries significant penalties.

In this blog post, we will dive deeper into this statute to help you better understand its implications and consequences.

11359 HS: 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.

Source: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC&sectionNum=11359.

Elements of crime under Health & Safety Code 11359

To establish a violation of this law, the prosecution must demonstrate the following elements:

• The defendant possessed a specific quantity of marijuana.
• The defendant knew about the presence of marijuana.
• The defendant intended to sell the marijuana.
• The defendant knew of the substance’s nature or character as a controlled substance.
• The amount possessed was in a usable amount and sufficient for sale.

Determining whether the marijuana in question was intended for sale or personal use can significantly affect the severity of the charges, ranging from an infraction or misdemeanor to a serious felony. When considering this issue, law enforcement and prosecutors typically take the following factors into account as indications of an intent to sell:

• Quantity: If a large amount of marijuana is found, it may suggest an intent to distribute rather than for personal use.
• Packaging: If the marijuana is organized in small, individual packages, it can be seen as evidence of intent to sell.
• Arrest location: If the suspect is apprehended in an area commonly associated with marijuana sales, it may bolster the argument of intent to sell.
• Paraphernalia: The presence of items typically used for smoking or using marijuana can suggest personal use rather than selling.

These factors are considered collectively to make a determination regarding the intention behind the marijuana possession.

Examples:

An individual is pulled over for a traffic violation, and during the routine stop, a police officer smells the strong odor of marijuana coming from the car. Upon searching the vehicle, the officer finds several large bags of marijuana, as well as a scale and plastic bags. The individual claims that the marijuana is for personal use, but the amount found suggests otherwise. Based on the quantity and presence of packaging materials, the police suspect that the individual was intending to sell the marijuana. As a result, the individual could face charges for possession of marijuana for sale under California Health & Safety Code Section 11359 HSC.

Penalties For Possessing Marijuana For Sale in California

Possessing marijuana for sale without a license in California is typically considered a misdemeanor offense, punishable by up to six months in county jail and/or a fine of up to $500. However, there are circumstances where felony penalties can be imposed under California law after Proposition 64.

Felony penalties for possession of marijuana for sale can occur if any of the following conditions are met:

• The defendant has a prior conviction for a serious violent felony such as murder, sexually violent offenses, sex crimes against a child under 14, or gross vehicular manslaughter while intoxicated, or a sex crime that requires registration as a sex offender.
• The defendant has two or more prior misdemeanor convictions for marijuana possession for sale.
• The defendant possessed marijuana for sale with the knowledge that it would be sold to someone under 18 years old.

In any of the above scenarios, the defendant charged under Health and Safety Code 11359 (HS 11359) can face 16 months, 2 years, or 3 years in county jail.

Unlike simple possession cases, drug diversion (treatment) as an alternative to jail time is not available for possession with intent to sell. Drug diversion is only an option for excessive possession and cultivation of marijuana for personal use. It may be beneficial to negotiate charges down to simple possession, as both possession for sale and simple possession are considered misdemeanors under Proposition 64.

In certain cases, misdemeanor probation may be granted instead of jail time. While on probation, individuals may be subject to various restrictions such as periodic progress reports, restitution payments, therapy participation, drug testing, community service or labor, and warrantless searches of their person or property.

Defenses

There are several defenses that can be raised against charges under California Health and Safety Code 11359 for possessing marijuana for sale. These defenses may include:

• If you can demonstrate that you were unaware of the presence of marijuana or that it did not belong to you, you may have a defense against the charges.
• If you can prove that the marijuana was solely for your personal use and not intended for sale or distribution, you may be able to argue that you should not be charged with possession for sale.
• If you are the primary caregiver for a medical marijuana patient and the marijuana was for their personal use, you may have a valid defense against charges of possession for sale.
• If you can show that you intended to share the marijuana with friends or acquaintances rather than selling it for profit, you may be able to argue that you should be charged with a lesser offense or have the charges dismissed.
• If you can demonstrate that you were in the process of disposing of the marijuana, such as by throwing it away or destroying it, you may be able to argue that you should not be charged with possession for sale.
• If the marijuana was found as a result of an illegal search conducted by law enforcement, you may be able to challenge the admissibility of the evidence and have the charges dismissed.

Immigration Consequences

A conviction under California Health and Safety Code 11359 can have immigration consequences depending on the specific circumstances of the case and the individual’s immigration status. However, convictions related to controlled substances, including marijuana offenses, can potentially result in negative immigration consequences, including inadmissibility and deportation. Possessing marijuana for sale, regardless of whether the conviction was obtained under California drug laws or federal drug laws, can be considered an “aggravated felony” according to the Immigration and Nationality Act. If you are an undocumented immigrant and you are convicted of or plead guilty to this offense, it can result in deportation.

Please keep in mind that immigration laws and policies can change, so it is always important to consult with an immigration attorney or legal expert for the most up-to-date and accurate information. If you do not have or know of an immigration lawyer, the Tabibnia Law Firm can refer you to one.

Sources:

ilrc.org – Quick Reference Chart For Determining Key Immigration Consequences Of California Offenses

cdn.ca9.uscourts.gov – United States Court of Appeals for the Ninth Circuit, 17-72914

Can Health & Safety Code 11359 Conviction be expunged

A conviction under California Health and Safety Code 11359 may potentially be eligible for expungement. In California, under Proposition 64, certain convictions for marijuana offenses, including Health and Safety Code 11359, can be reviewed and potentially eligible for resentencing or dismissal.

However, it is important to note that eligibility for expungement may depend on various factors such as the specific circumstances of the case, prior criminal history, and the application of Proposition 64. Therefore, it is advisable to consult with an experienced criminal defense attorney who can evaluate your specific situation and guide you through the expungement process.

For more information on expungement, Prop 64, and eligibility requirements, you can refer to the California Courts Self-Help Center website. If you’re looking for information on expunging a crime in California, contact our Los Angeles expungement attorney. 

Sources:

California Courts – Marijuana Conviction Relief (Proposition 64)

FindLaw – California Code, Health and Safety Code – HSC § 11359

Federal Law

According to Title 21 of the United States Code (USC), the federal Controlled Substances Act (CSA) categorizes marijuana as a Schedule 1 hallucinogenic drug with a high potential for abuse and no recognized medical use. Possessing marijuana for sale is prohibited under 21 USC 841 (a)(1). For a first offense involving less than 50 kilograms of marijuana and/or fewer than 50 plants, the punishment can include up to five years in prison and a fine of up to $250,000. Subsequent offenses or larger quantities can result in more severe fines and longer sentences.

Under the Supremacy Clause of the U.S. Constitution, federal law takes precedence over conflicting state law. Therefore, possessing marijuana for sale violates both federal drug laws and California law. However, the federal government generally focuses on large-scale drug trafficking cases and is less likely to prosecute individuals for possession of marijuana for sale unless it involves significant quantities or other federal crimes.

It is worth noting that Former Attorney General Jeff Sessions withdrew the Obama administration’s “hands-off” approach to federal marijuana prosecutions, leaving discretion to federal prosecutors. Nonetheless, there is no indication that federal prosecutors in California plan to dedicate legal resources to prosecuting individuals who use marijuana in accordance with state law.

It is important to be aware that federal law also applies to federal lands within California. If you possess marijuana for sale on federal property, such as post offices, airports (past the security area), federal courts, or national parks, you may face charges under the federal Controlled Substances Act.

Sources:

DEA. “The Controlled Substances Act.” Accessed September 24, 2021. 

Related Crimes:

• Possession of a Controlled Substance – California Health & Safety Code Section 11350 HSC
• Possession for Sale of a Controlled Substance – California Health & Safety Code Section 11351 HSC
• Possession of Marijuana – California Health & Safety Code Section 11357 HSC
• Cultivating Marijuana – California Health & Safety Code Section 11358 HSC
• Selling Marijuana – California Health & Safety Code Section 11360 HSC
• Driving with marijuana – Vehicle Code 23222(b)

Speak With Criminal Defense Lawyer From Tabibnia Law Firm

Possession for sale of marijuana is a major offense with potential prison sentences if convicted. If you or someone you know is facing charges related to possession for sale of marijuana, it is crucial to seek legal representation. Consider consulting with Los Angeles drug crime defense attorney Mr. Tabibnia, who has over 18 years of experience in the field. Cyrus is highly regarded by judges, prosecutors, and law enforcement officers for his expertise and dedication to obtaining the best possible outcome for his clients.

To learn more about possession for sale of marijuana and to schedule a free consultation, reach out to Los Angeles Criminal Defense Lawyer Mr. Cyrus Tabibnia at the Tabibnia law firm. Call: 866-713-2159

Legal References:

Codes.findlaw.com | leginfo.legislature.ca.gov | casetext.com