Under California Health and Safety Code Section 11360, it is illegal to sell, give away, import, or transport any quantity of marijuana including concentrates like hash oil and cannabis-infused edibles such as brownies and gummies.. While the recreational use of marijuana has been legalized in California, it’s important to note that the sale of marijuana is still subject to strict regulations. Engaging in the sale of marijuana without the necessary licensing is considered a serious offense under the law.
Even if someone hands out marijuana strictly for charitable reasons with no intention of gaining a profit, they can still be prosecuted for breaking Health and Safety Code Section 11360’s ban on marijuana sales in California. It’s important to note that having marijuana for sale and merely possessing it are two different things.
Understand the drug offender registry in California if you have been convicted of certain drug offenses.
HS 11360 Marijuana Sales As A Felony Case
Most HS 11360 cases are filed as a misdemeanor offense. But violation of this drug crime can be classified as a felony, and the offender may face a jail sentence of up to four years. If the offender sells marijuana to someone under the age of 18, the conviction could result in a prison term of up to seven years.
The majority of HS 11360 marijuana sales cases are now considered misdemeanor offenses. Additionally, under Vehicle Code 23222(b) VC, driving a vehicle while in possession of an open container of marijuana is also a punishable offense.
Elements For Health And Safety Code 11360
What Are The Elements That A Prosecutor Needs To Establish? The prosecutor must prove the following elements, beyond a reasonable doubt, in order to secure a conviction for HS 11360:
- The defendant sold, furnished, administered, imported, transported, or gave away marijuana.
- The defendant was aware that the substance was marijuana and understood it to be a controlled substance.
- There was a measurable amount of marijuana involved in the offense.
For more detailed information, please read the following references:
- CALCRIM 2360 (Transporting or giving away marijuana not exceeding 28.5 grams)
- CALCRIM 2361 (Transporting or giving away marijuana exceeding 28.5 grams)
- CALCRIM 2352 (Possession for sale of marijuana)
- CALCRIM 2351 (Offering to sell or furnish marijuana)
- CALCRIM 2363 (Offering to transport or give away
Penalties For California Penal Code 11360 HS Marijuana Sales Conviction
In the state of California, the sale, distribution, or transportation of marijuana is covered under Health and Safety Code Section 11360 (HS 11360). The penalties upon conviction under this statute have been delineated based on certain factors including the amount of marijuana involved, the age of the offender, and the nature of the offense (whether it is a misdemeanor or a felony).
Misdemeanor Penalties:
Individuals convicted under HS 11360 for a misdemeanor can face up to six months in county jail and/or a fine of up to $500.
Felony Penalties:
- Convictions categorized as felonies under this statute can result in imprisonment for two, three, or four years in county jail.
- The transition from misdemeanor to felony can occur under certain circumstances such as if the sale or transportation of marijuana is conducted in a manner that violates specified legal conditions. For instance, selling marijuana to a minor could escalate the penalties significantly, potentially leading to up to seven years in state prison.
- Defendants with prior convictions for certain severe felonies like murder, rape, child molestation, or other sex crimes requiring registration as a sex offender under Penal Code Section 290, may face felony charges if caught selling marijuana.
- If a defendant has two prior convictions for either selling or transporting marijuana, the third prosecution under Section 11360 could be escalated to a felony charge.
- Moreover, a felony conviction carries a lifetime ban on owning or possessing firearms, and disqualifies the defendant from eligibility for a drug diversion program.
Specific Amounts:
The penalties can also be influenced by the amount of marijuana involved. For instance, the unlawful transportation, importation, sale, or gift of not more than 28.5 grams of marijuana (other than concentrate) is considered an infraction. However, if the amount exceeds 28.5 grams or involves any amount of concentrate, the legal consequences intensify.
Related Crimes
- Simple possession of Marijuana – Health and Safety Code 11357
- Cultivation – Health and Safety Code 11358
- Cultivating Marijuana – California Health & Safety Code Section 11358 HSC
- Possession for Sale of Marijuana,– Health and Safety Code 11359
- Selling Marijuana to a minor – Health and Safety Code 11361
- Possession for Sale a Controlled Substance – Health and Safety Code 11351
- Sale or Transportation of a Controlled Substance – Health and Safety Code 11352
- Operating a Drug House – Health and Safety Code 11366
- Possession of Drug Money – Health and Safety Code 11370
- Driving with marijuana – Vehicle Code 23222(b)
How To Fight California Penal Code 11360 Marijuana Sales Charges
Cyrus Tabibnia as a Los Angeles criminal lawyer has a range of defense strategies available if you are facing accusations of misdemeanor or felony marijuana sales in violation of HS 11360.
Considering the unique circumstances surrounding marijuana offenses, given the partially legal status of marijuana use and the prevalent medical marijuana market in California, he can employ specific defenses to tackle these charges effectively.
Now, turning to the specific defenses, there are several common defenses that individuals charged under California Penal Code 11360 may employ, according to legal resources. These defenses can be broadly categorized into defenses that challenge the facts of the case, and defenses that challenge the legality of law enforcement procedures. Here are some common defenses as outlined:
- Lack of Knowledge: Asserting that the defendant was not aware of the presence of marijuana.
- Primary Caregiver Defense: If the defendant is a primary caregiver providing marijuana to a medical marijuana patient, this could serve as a defense.
- No Sale Occurred: Asserting that the marijuana was being given away for free, not sold.
- No Intent to Sell: Arguing that while marijuana was being transported, there was no intent to sell it.
- Entrapment: Claiming that law enforcement enticed the defendant into committing an offense they otherwise wouldn’t have committed.
- Illegal Search and Seizure: If the marijuana was discovered during an illegal search and seizure, any evidence obtained may be inadmissible in court.
Each of these defenses addresses different aspects of the charges and aims at either negating essential elements of the crime or at challenging the legality of the law enforcement procedures that led to the arrest and charges. The utilization and effectiveness of these defenses would significantly depend on the unique circumstances of the case, the skill of the defense attorney, and the attitudes of the court and prosecution towards marijuana offenses, which may be influenced by the evolving legal and social perspectives on marijuana use and distribution.
Immigration Consequences:
U.S. immigration law treats drug offenses quite seriously. Under the Immigration and Nationality Act (INA). The immigration consequences for violating § 11360 HS can be severe, particularly because immigration is a federal matter, and marijuana remains illegal under federal law. Here are some potential immigration consequences:
- Deportation: Conviction under § 11360 HS could make a non-citizen deportable, especially if it is considered an “aggravated felony” or a “crime involving moral turpitude” under federal immigration law.
- Inadmissibility: A conviction could also make a non-citizen inadmissible, meaning they could be barred from re-entering the U.S. or adjusting their immigration status.
- Naturalization: A conviction could affect a non-citizen’s ability to naturalize as a U.S. citizen. Good moral character is a requirement for naturalization, and a conviction under § 11360 HS could be considered a negative factor.
- Visa Consequences: Visa holders could have their visas revoked, and future visa applications could be denied.
- Asylum and Other Relief: A conviction could also affect eligibility for asylum, Temporary Protected Status (TPS), and other forms of immigration relief.
If you or someone you know is charged with this crime, it is strongly advisable that you also consult with an immigration lawyer. If you do not have or know of an immigration lawyer, the Tabibnia Law Firm can refer you to one.
Call Tabibnia Law Firm For Help With A Marijuana Sales Case
If you or a loved one is facing allegations of unlawful marijuana sales in violation of California Health and Safety Code 11360, reach out to our skilled criminal defense attorney Cyrus Tabibnia for an initial consultation.
During this consultation, he will carefully assess the specific details of your case and guide you through the next steps of your defense strategy. As an experienced attorney, he will provide a thorough review of the evidence and discuss potential defenses that can be utilized to protect your rights and interests.
Furthermore, he will explore the possibility of pre filing intervention, wherein he can work proactively to prevent the formal filing of criminal charges. This approach can be beneficial in finding alternative resolutions or negotiating favorable outcomes before the case proceeds to court.
Please call Tabibnia Law firm (866) 713-2159 to schedule a consultation and let him assist you in navigating through the legal process effectively, ensuring the best possible defense for your case.
Legal References:
leginfo.legislature.ca.gov |codes.findlaw.com | Justia.com | justice.gov
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