Possession of marijuana is no longer illegal in California. However, if you are caught in possession of a substantial amount of the drug and the police have a reason to believe that you intended to trade it with something valuable, you may face serious legal charges. Marijuana is among those drugs whose possession and sale is controlled by the government. Possessing some for individual use for those above 21 is permitted, but you need a state license to trade it.
Charges for possession for marijuana sale are serious in California and could attract a lengthy prison term and hefty penalties. You need an experienced criminal attorney if you want your charges to be dropped or reduced. If you are in Los Angeles, CA, we could help you. The defense team at The LA Criminal Defense Law Firm can plan the most vigorous defense against your charges.
Legal Definition of Possessing for Sale of Marijuana
California has very stringent laws against those drugs believed to have detrimental effects on consumers' welfare and health. These drugs, categorized as controlled substances, are strictly regulated by the government. A person can only possess a certain amount of the substance if it is allowed. Some are precisely not for possession or sale. Marijuana is one such drug. But due to its medicinal benefits, California allows its residents to possess only small amounts of the drug for personal consumption. If the police have a probable reason to believe that you intend to sell marijuana in your possession, you could face serious criminal charges.
Before 2018, marijuana possession was strictly regulated by the government such that you could be arrested if found in possession of small amounts of the drug. However, recreational marijuana was legalized that year, but only for personal consumption and for people above 21. Today, anyone intending to sell the drug requires a license. This has brought a lot of confusion in that innocent people have been convicted of selling or planning to sell the drug, while in the real sense, the drug was only for personal consumption. That is why you need the best criminal defense you can get if you face charges for possession for sale of marijuana in California.
The law against possession for sale of marijuana in California is provided under Section 11359 of the state's Health & Safety Code. To understand this law even better, let us look at its legal definition. The law is basically against possession of the controlled substance for sale, except for those legally. The following facts of the offense will break this law further for better understanding. They are the facts that the prosecutor will have to prove beyond a reasonable doubt for the offender to be convicted:
That the defendant was in possession of a controlled drug
That he/she was aware of the drug’s presence
That he/she was aware of the nature of the substance as a regulated drug
That the defendant kept the drug intending to peddle it without the necessary licenses from local and state government
That the substance in question was marijuana
That the substance was in usable amounts
What is Marijuana?
Marijuana, as used in this law, entails all the parts of the Cannabis sativa plant. The plant could be growing or not. The plant parts can either be the seeds, leaves, or resin taken out from one or more aspects of the plant. It could also be a compound, derivative, salt, mixture, or anything that has been prepared from the plant, its leaves, resin, or seeds.
Possession of Marijuana
Possession, as used in this law, could take several forms. It could be actual possession or constructive. Again, it could be that more than one person possessed the same thing at the same time, referred to as joint possession.
Actual possession means that the defendant was holding the marijuana, or that the drug was in something that the defendant was wearing or holding. You are in actual control of something if it was found in your hands, pockets, or a bag you were carrying.
Note that you could have been in actual control of the substance, while it was not yours in the real sense. Someone else might have asked you to carry it for them. In this case, you can still face charges for possession for sale of the drug.
Actual possession can still be shared between or among people. If the stash in your possession belongs to you and your friends, you will be in actual joint ownership of the substance and face charges under California Health & Safety Code Section 11359.
On the other hand, constructive possession means that the defendant was in indirect control over the drug. If a person is allowed to grow marijuana, they are in constructive control of the drug as long as it grows in their garden. If another person buys marijuana from their garden, they could be charged with possession for the controlled substance sale even if the sale occurred in their absence.
The law does not require a person to have touched the drug to own or control it. Ownership of marijuana could be exercised through a different person.
Again, constructive ownership could be shared between one or multiple people. If a stack of marijuana is found in the apartment you share with your brother, you could be charged with constructive control of the substance if you both had control over it.
Knowledge of Drug’s Presence
Having control over the drug is insufficient for a person to face conviction under Section 11359 of the California Health & Safety Code. The defendant must be aware of the existence of the drug in their possession. A person could have something in their possession and not know its presence, maybe because another person put it there. If that is the case, then you may not be found guilty under this law.
Suppose in the example above, and one brother hides a stash of marijuana for selling in the apartment he shares with his brother. In that case, the second brother will not be guilty of possession for marijuana sale because he was not aware of the drug's presence in the apartment. Similarly, a person carrying another’s bag or briefcase may not know of the existence of marijuana in the bag or briefcase if indeed the bag contained drugs for sale.
Understanding of the Nature of the Substance as a Controlled Drug
This law also requires that the offender be aware of the drug's nature in his/her possession. It puts into account that a person may have some substance with them without knowing the nature of the substance or whether or not the substance is a controlled drug. If that is the case, then he/she Is not guilty of possession for sale of marijuana.
However, the prosecutor must not prove to the court that you knew that the substance in your possession was marijuana. What is needed is proof that you know that the substance was a controlled drug.
A person can easily state in court that they did not know the substance's nature in their presence. However, the court has other ways to prove a suspect's knowledge of their possession. Your conduct during your arrest will be discussed, as proof of whether you were aware of the drugs' nature. For example, if you tried to hide or run away when the law enforcement officers approached you or you seemed nervous when questioned about the drugs, your behavior might be accepted in court as proof of guilt.
But your skilled attorney can fight such proof with strategies such as the police’s company made you nervous, and not the drugs in your possession.
Possession for Sale
Mere possession of marijuana is not illegal, as long as it is for personal consumption. The problem comes when intent changes from individual consumption to sale. Selling marijuana, as used in this law, means the exchange of marijuana for something valuable, money, or services. A person can exchange drugs for such things as sex, an apartment, other drugs, clearance of debts, or services such as house chores. All this is illegal for anyone that is not licensed to sell marijuana.
However, the prosecutor will have to prove your intention to sell the drugs. At times the police can gather direct evidence in such cases, for instance, if you were caught red-handed, exchanging the substance for cash or something valuable. Other times you might be arrested for statements you make, such as, 'I have to sell these drugs now.'
In the absence of direct evidence, the prosecutor will rely on circumstantial evidence to convince the court that you are guilty of the offense. This is the trickiest part, especially if the defense team is keen on fighting every piece of evidence collected against the defendant. The kind of circumstantial evidence that could be used in this case includes:
The fact that the amount of marijuana found in your possession was more than you need for personal consumption
Other types of equipment, such as weigh scales and baggies, were found together with the drug.
That you were arrested in possession of marijuana in a place that is a famous black market for illicit drugs, including marijuana
The way the drug was packaged was suggestive that it was for sale. It could have been in several containers, each of them with an identical amount and nature of the drug.
The police also found money in cash and other weapons that are equipment associated with the consumption of marijuana.
An expert opinion stated that marijuana in your possession was for sale.
Quantity of Drug
Even though this law has not said anything about the quantity of the drug, the amount of the drug found in your possession may indicate whether or not the substance was for sale. Having large amounts of drugs in your house could be used as proof of your resolve to selling it. However, this is just circumstantial evidence that can easily be disputed by an experienced criminal attorney working on your defense.
In most cases, a drug meant for personal consumption will be kept in one container. That is why it is easy for a prosecutor to accuse you of intending to sell a drug if it is found in several packages, each holding the same amount. This evidence will be especially irrefutable if other equipment is also found in the same location as the drugs, including baggies and a weigh scale.
The evidence is disputable, too, because a person may decide to have different packages for different marijuana varieties, all for personal consumption. Again, a person who buys recreational marijuana will have bought in different packaging.
Presence of Money and/or Weapons
A person trading drugs for money might indeed have large sums of cash in their home. It is also true that a person can keep large amounts of money in their home for other reasons. Similarly, there are other reasons why people would keep weapons in their home, not just because they are drug-dealers. A smart attorney would be quick to dispute this evidence if it was used against their client. If your attorney can prove that the presence of cash and/or weapons had nothing to do with the marijuana in your possession, your charges will not hold.
Marijuana in Usable Amounts
You would not face charges under California Health & Safety Code Section 11359 unless the substance found in your possession were marijuana. If the drug were tested and turned out to be something else, you would only face charges if it prohibits its possession.
Again, the substance in your possession should have been in usable amounts. There is no way you will intend to sell a drug if what you had was in a minimal amount. As used in this law, the usable amount means that it was enough to be consumed by another person as a regulated drug. Note that it doesn’t have to be too much to cause a person to get high. In this case, trace amounts of the drug will not cause you to face charges under this law, even when the police found other incriminating items such as cash, weigh scales, and other sale indications.
Penalties for Conviction under Section 11359 of California Health & Safety Code
Possession for sale of marijuana is a serious drug offense in California that could be convicted as a misdemeanor or felony, depending on the circumstances surrounding it. Most people facing charges under this law are convicted of a misdemeanor. The penalties for a misdemeanor conviction could be:
Jail sentence for a period of not exceeding six months
Fines of not more than $500
However, there are instances the prosecutor can charge an offender with a felony for possessing for sale of marijuana. It could be in instances such as:
The offender has previous convictions for a serious felony such as sexually violent offense, murder, sex crime against a minor under 14 years, or vehicular manslaughter.
The offender has at least two previous misdemeanor sentences for possession for sale of marijuana.
The offender intended to sell the marijuana in their possession to a person under 18
If the defendant gets a felony conviction under this law, the penalties they are likely to face are sixteen months, two, or three years of incarceration.
Suppose you are convicted under Section 11359 of California Health & Safety Code. In that case, you will not qualify for the drug diversion program, a treatment given in place of serving time behind bars. The program is only available for offenders convicted for simple possession of an excess amount of marijuana or the cultivation of marijuana for personal consumption without a legal permit. That is why you need to fight your charges vigorously to bring them down to at least simple possession of marijuana. This way, your charges will be a little more lenient.
Probation for Offenders
Offenders convicted under this law could qualify for misdemeanor probation if they get a misdemeanor conviction. In this case, the offender may be able to spend their time out of jail. However, there will be probation conditions to contend with, such as:
He/she should periodically report with the court
They should pay restitution
They must participate in any individual or group treatment ordered by the court
They must be ready to submit to drug testing
They must take part in community labor or service
They should allow searches for their personal property or person even without a search warrant
Legal Defenses for California Health & Safety Code Section 11359
If you are facing charges for possession for sale of marijuana, you may be terrified. This is because this is an offense that could change some aspects of your life for good. The only option an offender facing these charges has is to fight with all they have to avoid a life-altering conviction. This is possible if you are working alongside an experienced criminal defense attorney. The good thing is that there are several legal strategies that your attorney can use to compel the court to either reduce or drop our charges. These include:
Lack of Knowledge
California Health & Safety Code Section 11359 requires an offender to be aware of the presence of marijuana for him/her to be found guilty of the offense. As mentioned above, it is possible to have direct possession of a drug and not know of its presence. For instance, it could be in a bag you are carrying, your vehicle, or a house you share with others. If that is the case, you will not be found guilty of possession for marijuana sale.
It was for Personal Consumption
Again, it is not illegal to have a small amount of marijuana for personal consumption. However, you must be very convincing for the court to believe that the drug was indeed for personal consumption. Sometimes the police may be misled by circumstantial evidence to believe that the drug in your possession was for sale. If, for instance, the amount of the drug was more than an ordinary stash for personal consumption, you may be charged with intent to sell. Your attorney can use a different approach to demonstrate to the court that the drug was merely for personal consumption and not for sale.
Illegal Search and Seizure
If the drugs were found during an illegal search and seizure, your attorney might have a chance to have all the evidence gathered against you thrown out of court. An illegal search is conducted in the absence of a search warrant. The law requires the police to obtain a warrant of arrest to conduct a search on a person or their property. Again, the warrant must be correctly executed for the evidence gathered to be admitted in court. If the police did not have a warrant or conducted a search beyond the warrant's provisions, you may get a chance to have your charges dropped.
The Drug was For Sharing with Family and Friends
Sharing marijuana with family and friends is not illegal, as long as you are not exchanging it for money, something valuable or favor. Therefore, your attorney could convince the court that you did not intend to sell the drug on the black market. If the drug was in large quantities, he/she might convince the court that you planned to share it with your friends and family.
Find The LA Criminal Defense Law Firm Near Me
Possession for sale of marijuana is a criminal offense, as opposed to possession for consumption. It is an offense that could leave you serving time behind bars and paying penalties. It will also leave you with a damaging criminal record that could affect other aspects of your life, including your reputation. You need the help of an experienced criminal attorney to fight those charges. If you are in Los Angeles, CA, call us at 310-935-1675. The LA Criminal Defense Law Firm will plan a strong defense to help your case.