CALIFORNIA HEALTH AND SAFETY CODE 11361 HS – SELLING MARIJUANA TO A MINOR

Under California Health and Safety Code Section HS 11361 HS, it is illegal to sell marijuana to minors. However, it is important to note that this provision does not require any exchange of money to constitute a violation. Providing marijuana to a minor, whether through gifting, furnishing, trading, or any other means, is equally unlawful. A minor is defined as a person under the age of 18.

California Health and Safety Code Section 11361 encompasses various prohibited activities related to minors and marijuana. In simple terms, it is considered a criminal offense to involve a minor in the marijuana industry, whether through activities like selling or transporting the drug. This includes actions such as carrying, preparing, or promoting marijuana with the intention to sell it.

Health and Safety Code Section 11361 also criminalizes the act of influencing or encouraging a minor to use marijuana. This includes tactics such as coercion, intimidation, or any other form of persuasion.

According to Vehicle Code 23222(b) VC, it is an offense for a driver to operate a motor vehicle while in possession of an open container of marijuana.

For further clarification, one may refer to CALCRIM 2391 which pertains to the act of offering to sell or furnish marijuana to minors.

Additionally, CALCRIM 2392 covers the employment of minors to sell marijuana, while CALCRIM 2393 relates to the offense of inducing a minor to use marijuana. As per California law, it is essential to understand the provisions outlined in Health and Safety Code § 11361 HS, which specifically criminalizes the sale or giving of marijuana to a minor.

11361 HS: (a) A person 18 years of age or over who hires, employs, or uses a minor in unlawfully transporting, carrying, selling, giving away, preparing for sale, or peddling any cannabis, who unlawfully sells, or offers to sell, any cannabis to a minor, or who furnishes, administers, or gives, or offers to furnish, administer, or give any cannabis to a minor under 14 years of age, or who induces a minor to use cannabis in violation of law shall be punished by imprisonment in the state prison for a period of three, five, or seven years.

(b) A person 18 years of age or over who furnishes, administers, or gives, or offers to furnish, administer, or give, any cannabis to a minor 14 years of age or older in violation of law shall be punished by imprisonment in the state prison for a period of three, four, or five years.

Source: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC§ionNum=11361.

This blog will provide an overview of the key aspects of this law, including prohibited acts, examples, penalties, and possible defenses.

What Acts Are Prohibited by Health and Safety Code 11361 HS?

Health and Safety Code 11361 HS encompasses several prohibited acts related to selling or giving marijuana to a minor. There are two distinct sections:

• Health and Safety Code Section 11361(a) – Hiring or inducing a minor to sell marijuana

This offense prohibits involving minors in any aspect of the marijuana trade, including cultivation, sale, preparation, or transportation.

• Health and Safety Code Section 11361(b) – Furnishing or giving marijuana to a minor

This offense prohibits the transfer or transaction involving marijuana and minors, regardless of whether the minor is the buyer or recipient.

Elements of Health & Safety Code § 11361 HS

To secure a conviction for violating either California Health and Safety Code Section 11361(a) or 11361(b), which prohibits the sale or giving of marijuana to minors, the prosecutor must prove the specific elements of the offense they are charging. The elements differ for each section and must be proven independently.

For California Health and Safety Code Section HS 11361(a), the elements that the prosecutor must prove beyond a reasonable doubt include:

• The defendant was at least 18 years old at the time of the offense.
• The defendant knew that the person receiving the marijuana was under 18 years old.
• The defendant engaged in the sale, offer to sell, or giving away of marijuana to a minor.
• The defendant employed or made use of a minor to sell, transport, or give away marijuana.
• The defendant encouraged, persuaded, solicited, or intimidated a minor to use marijuana.
• The defendant knew that the substance in question was a controlled substance.
• The defendant sold, transported, or gave away a usable amount of marijuana.

For California Health and Safety Code Section HS 11361(b), the elements that the prosecutor must prove beyond a reasonable doubt include:

• The defendant was at least 18 years old at the time of the offense.
• The defendant knew that the person receiving the marijuana was under 18 years old.
• The defendant furnished or gave marijuana to a minor.

It is important to understand that these elements must be proven independently for each section (a) and (b) of Health and Safety Code Section 11361. They are separate crimes, and the prosecutor cannot combine the elements of the two sections. Please consult with a qualified attorney for accurate legal advice regarding specific cases or charges.

Penalties For Selling or Giving Marijuana to A Minor

Violating California Health and Safety Code 11361 HS is considered a felony offense that requires serving the sentence in a California state prison, different from other cannabis-related offenses.

In most cases, the penalty for breaking HS 11361 entails three, five, or seven years in state prison. But, offering or giving marijuana to a minor aged at least 14 years attracts a penalty of three, four, or five years in state prison.

If you have a criminal history or specific circumstances, you could serve your sentence under the California felony probation program instead of the regular sentence. During the probation period of three to five years, an individual is usually required to adhere to several conditions, which vary from drug counseling, community service, avoiding contact with minors, or meetings with a parole officer.

However, failure to comply with any of the conditions of your probation can prompt the judge to direct you to serve the remaining sentence in state prison.

Understanding drug classifications is crucial for both healthcare professionals and the general public. Find the list of California Drug Schedules

What are the Defenses for California Penal Code 11361?

When facing charges under Health and Safety Code 11361 HS, certain defenses may be applicable. It is crucial to consult with a knowledgeable attorney to develop a strong defense strategy. Success of defense will depend on the specific facts and circumstances of your case. Some potential defenses include:

• You did not know that the recipient of marijuana was a minor. If you can demonstrate that you had a genuine belief or lack of knowledge regarding the age of the recipient, it may serve as a defense.
• Reasonable belief that the minor was an adult. Include testimony from the minor themselves, witnesses who can corroborate your belief, or any other relevant evidence that shows you had no reason to suspect the recipient was underage
• You did not have the intention to sell, give, or offer marijuana to a minor. If you can show that there was no intent on your part to engage in such actions, it may be a valid defense.
• If you can provide evidence that law enforcement officers or agents induced or coerced you into committing the offense, you may be able to claim entrapment as a defense.
• In some cases, individuals may be authorized to use or distribute medical marijuana. If you have a valid medical marijuana card and were acting in accordance with the relevant laws, it may be a defense against charges.

Each case is unique, and an experienced attorney can assess the specific circumstances and determine the most viable defenses.

Immigration Consequences

When it comes to immigration consequences, the situation becomes even more complex. U.S. immigration law is federal, and it does not recognize the decriminalization or legalization of marijuana at the state level. Convictions related to controlled substances, including marijuana, can have severe immigration consequences. These can include, but are not limited to:

• Deportation: A conviction under Penal Code 11361 could make a non-citizen deportable under federal immigration law.
• Inadmissibility: If a non-citizen is trying to enter the U.S., a conviction could make them inadmissible, meaning they could be denied entry or re-entry into the country.
• Ineligibility for Relief: Certain forms of immigration relief, like asylum or cancellation of removal, may be unavailable to those with such convictions.
• Naturalization Impact: A conviction could also impact a non-citizen’s ability to naturalize as a U.S. citizen.

If you are 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.

Contact Cyrus Tabibnia For Drug Crime Defense

If you or someone you know is facing drug-related charges, particularly those involving Health and Safety Code 11361 HS, it is imperative to seek legal representation from an experienced Los Angeles drug crime defense attorney. Cyrus Tabibnia, at the Tabibnia Law Firm, specializes in criminal defense, including drug offenses, and can provide you with the necessary guidance and support.

Remember, understanding the laws and having a strong defense is crucial when facing charges related to selling or giving marijuana to a minor. Contact Cyrus Tabibnia (866) 713-2159 today to ensure your rights are protected and to receive the best possible defense.

Tabibnia Law Firm is serving its clients throughout Southern California including Santa Monica, Los Angeles, Orange County, Beverly Hills, San Fernando Valley, Ventura county, Riverside County, Sherman Oaks, Encino, Pasadena, Burbank, Glendale, Long Beach, Palmdale, Santa Clarita, Monterey Park, La Puente, Van Nuys, Pomona, Manhattan Beach, West Covina, Whittier, Downey, Woodland Hills, Norwalk, Torrance, Redondo Beach, San Bernardino, Walnut Creek, Inglewood, Lancaster, Westlake Village and nearby areas.

Legal Resources:

leginfo.legislature.ca.gov | law.justia.com | publichealth.lacounty.gov