California Health and Safety Code 11359 makes it an offense to possess marijuana with the intent to sell. Possession of marijuana for personal use and recreation is not a crime. However, if the law enforcement officers or prosecution have the slightest evidence to prove your intent to exchange the substance for money, you can be charged with possessing marijuana for sale.

California's drug laws are very stringent. The penalties will be more severe if the prosecutor charges you with felony possession for sale. The consequences of a conviction for possession of marijuana for sale go beyond jail time and fines. After serving your jail sentence and paying your fines, you will deal with the collateral consequences of your conviction.

The stakes will be high for all defendants facing charges under HSC 11359. Therefore, hiring and retaining a knowledgeable defense attorney is critical to fighting your charges. You will benefit from the expert legal guidance we offer at California Criminal Lawyer Group if you face charges for violating HSC 11359 in Santa Ana, CA.

An Overview of California Health and Safety Code 11359

Before the approval of Proposition 64, marijuana was an illegal substance in California. The transition to accepting and treating marijuana as a legal substance has been long. You will not be charged with this crime if you possess cannabis for personal use. However, possessing large quantities of the substance could have serious criminal consequences. This will be the case if the prosecutor can prove that you intend to sell marijuana.

California Health and Safety Code 11359 seeks to punish individuals who possess marijuana for sale without a valid license. Before you are found guilty under this statute, the prosecution must prove these elements:

You Possessed Marijuana

The first element that proves your violation of HSC 11359 is that you possess marijuana. Under this statute, marijuana could be any part of the cannabis plant, including leaves, seeds, and any resin extracted. Possession of marijuana can be actual or constructive, depending on the following circumstances:

  • Actual possession. The actual possession of marijuana involves having the substance in your pocket or bag. Sometimes, actual possession could be shared between multiple individuals.
  • Constructive possession. You do not need to touch or have marijuana on your person for you to be charged and convicted under HSC 11359. Controlling the fate of marijuana can result in possession charges.

You had Knowledge of Marijuana’s Presence

You cannot be found guilty or convicted of possessing marijuana for sale unless you know that the substance was on you or within your control. This element helps prevent the conviction of individuals who know nothing about the substance.

For example, when the substance is found in a common area you share with several others, there could be reasonable doubt that the drugs were yours.

You Knew That You Had a Controlled Substance

Knowing the presence of a substance is not enough to find you guilty of possessing marijuana for sale. The prosecutor must go further to prove your knowledge that the substance is controlled. A controlled substance is any substance whose purchase, use, production, and sale are regulated by the government.

However, knowledge of the exact type and quantity is not necessary. Therefore, you can be convicted even when you do not know the substance is marijuana. How you act during the arrest can help the prosecution prove your knowledge of the substance's nature.

Acting nervous or attempting to run when the police seek to search you may indicate your possession and knowledge of marijuana as an illegal substance in California.

You Intended to Sell the Substance Illegally

In California, some people can legally sell marijuana. The state could issue a license for the sale of marijuana if you sell it to individuals with a prescription. Your intent to sell is a key piece of evidence when proving your liability under HSC 11359. Under this statute, selling marijuana means you intend to exchange the substance for money or a valuable item.

The evidence of your intent to sell can be direct or circumstantial. Direct evidence includes a statement of confession or testimony from a witness who saw you exchange the substance for money. Additionally, the prosecution can use the following forms of circumstantial evidence:

  • Presence of drug paraphernalia. Paraphernalia is an item used to manufacture or package marijuana for sale.
  • Quantity of the substance. If you possess more marijuana than is necessary for recreation or medical purposes, the law enforcement officers and prosecution can assume you intend to sell.
  • Packaging. Most people who possess marijuana for personal use have it in one container. If you possess marijuana packaged in small baggies, the prosecution can use this as evidence of your intent to sell.

Sentencing and Punishment Under HSC 11359

If there is no reasonable doubt in the prosecution’s case against you, you will be convicted and punished under HSC 11359. A conviction for possession of marijuana with intent is a misdemeanor. If you are convicted of the crime, the court will sentence you to six months in jail. The judge could also impose a fine that does not exceed $500.

After Proposition 64 in California marijuana laws, your HSC 11359 can attract felony charges under the following circumstances:

  • You have a prior conviction for a serious and violent felony. Under this statute, serious and violent felonies could include sex offenses against minors, murder, or voluntary manslaughter.
  • You have two or more convictions for possession of marijuana for sale. California law is strict on repeat offenders. If you are convicted of a drug-related crime, the court will make efforts to treat your condition and rehabilitate you. Being a repeat offender indicated a disregard for the law.
  • You intended to sell marijuana to a minor. If the prosecution can prove that you intended to sell the substance to a person under the age of 18, you will face a felony conviction under HSC 11359.

A felony conviction for possessing marijuana for sale attracts a prison sentence of sixteen months, two years, or three years. Possession of marijuana for sale is an aggravated felony. Therefore, if you are an immigrant in the United States, you risk facing serious immigration consequences.

After a conviction, the court can order deportation, which involves forceful removal from the country. Additionally, you could be rendered inadmissible. Inadmissibility means you cannot return to the United States after leaving.

Probation for possession of Marijuana for Sale

Although you do not qualify for drug diversion, you can avoid your jail sentence through probation. In California, the court offers probation to first-time offenders or individuals with no history of violence. If the court sentences you to probation, you will spend some part of your sentence outside of jail.

The court will attach the following conditions to your misdemeanor probation:

  • Periodic reports with the court. This allows you to report your progress.
  • Participation in therapy.
  • Mandatory drug testing.
  • Community labor.
  • Random searches of your person or property.

Collateral Consequences of Possession of Marijuana for Sale

A conviction under HSC 11359 will enter your criminal record. A drug-related conviction can impact multiple aspects of your life. Some of the common collateral consequences of an HSC 11359 conviction include:

  • Disqualification from employment opportunities. Most employers will perform a background check hiring you. In California, criminal convictions are accessible to the public. When your conviction suffixes in your background check, there is no law that prevents an employer from denying you the job based on this factor.
  • Professional licenses. Some professions require you to have a license before practicing in the field. During the issuance and renewal of the license, the licensing board will check out your conviction. A drug-related conviction could result in the denial of your license application. Additionally, you could suffer a suspension or revocation if you already have the license.
  • Housing. Landlords and mortgage lenders are reluctant to work with individuals with drug-related convictions. Therefore, this can leave you without a stable residence.
  • Immigration. Possession of marijuana for sale is typically a misdemeanor. However, there are circumstances under which the prosecution will file and pursue felony charges. A felony drug charge can result in severe immigration consequences. If you seek a green card or permanent citizenship, Immigration and Customs Enforcement can deny your application.
  • Child custody. Child custody is a sensitive topic during a divorce or separation. The family law court is very cautious when awarding child custody. The judge wants to ensure that a minor is placed in a safe environment. A misdemeanor or felony drug conviction can be used as a basis to deny you child custody.
  • Higher Education. It may be challenging to secure an admission to college or university with a drug conviction on your record. Additionally, you will be ineligible to receive financial aid or grants from the government.

Defenses Against HSC 11359 Charges

The effects of being in possession of marijuana for sale can follow you for the rest of your life. Therefore, you must be aggressive to fight the charges. The first step in fighting your charges is to contact a defense lawyer. Your attorney will help you investigate the facts of your case and build a solid defense.

Although the circumstances of each case are different, you can use the following legal defenses to fight your charges:

You did not Possess Marijuana

The first element that the prosecution uses to prove that you possess marijuana for sale is that you had control over the substance. Unfortunately, if the arresting officers found marijuana near you, you could be arrested and charged with possession. However, just because the substance was near you does not establish that you possess it. If you can create doubt about the prosecutor’s evidence on possession, your HSC 11359 charge will not attract a conviction.

Lack of Knowledge

You cannot be convicted of possession with intent to sell marijuana unless you know of the drug's presence. Your knowledge of its nature as a controlled substance should also be clear. Even when marijuana is on your person, the prosecution must prove your knowledge of its presence and nature.

Often, the arresting officer will testify to your reaction during the arrest. This could help indicate your knowledge. For example, if someone enters your vehicle, they could leave behind a bag of marijuana without your knowledge. This can prompt your arrest. However, the court can dismiss your case if you prove that you did not know the drug was in your car.

The drug was for Personal or Medical Use

In California, a person under the age of twenty-one can legally possess a small quantity of marijuana for recreation. Additionally, using marijuana to treat medical disorders is legal. However, when a police officer learns of your possession of the substance, they could arrest you. Prosecutors often file charges for the most serious offense that the evidence they have can support.

When you have a large quantity of marijuana, the police officers may be mistaken about your intent with the drugs. If you prove that you possessed the substance for personal use or medical purposes, you can fight to reduce your charge to simple possession.

A conviction for simple possession of marijuana is always a misdemeanor and attracts less serious consequences. Sometimes, you can avoid incarceration by entering a drug diversion program that is unavailable for defendants facing HSC 11359 charges.

You were Disposing of the Substance

You can fight your charge of possession of marijuana for sale by arguing that you were in the process of disposing of the substance. However, it might be challenging to convince the court of this fact. If you work closely with the government or agencies that fight drug use, you can successfully use this defense.

Lack of Intent to Sell

When you face criminal charges for possession of marijuana for sale, your intention to sell the substance is a critical part of the case. The sale of a controlled substance involves exchanging the substance for money or another valuable item. The quantity of the substance, packaging, and presence of paraphernalia differentiate simple possession from possession for sale.

You cannot be convicted under this statute if no evidence supports your intent to sell. However, if you possess more than is necessary for personal use, you can still be charged with simple possession under HSC 11357.

Illegal Search and Seizure

Law enforcement officers aggressively investigate and rest individuals suspected of drug possession and sale. Most possession for sale of marijuana arrests are the result of undercover and sting operations. When police officers receive a tip that you sell marijuana, they will quickly come to your home or business premise for a search.

California law protects all citizens from illegal searches and other forms of police misconduct. A search of your person or home may be considered illegal when law enforcement officers do not have a valid search warrant. Additionally, a search that exceeds the scope of a warrant is illegal.

If evidence of possession of marijuana for sale was uncovered in an illegal search, you could petition the court to have this evidence removed from your case. If some evidence is inadmissible, the prosecutor's case against you becomes weak, and you can avoid a conviction.

Frequently Asked Questions on Possession of Marijuana for Sale

Possession of marijuana for sale can attract serious misdemeanor or felony charges. Therefore, if you are arrested for violating HSC 11359, you could feel confused and unsure of the steps to take. The following are frequently asked questions on possession of marijuana with an intent to sell:

  • Can I be convicted under HSC 11359 if I possess marijuana for personal use?

Possession of marijuana for personal use or recreation purposes is legal in California. However, the amount of substance in your possession must only be enough for personal use. Your case could be dismissed if you are arrested for possessing a small quantity with no clear intent to sell it.

However, if you have an amount that exceeds the accepted levels, the prosecution can pursue charges for simple possession.

  • Can I enter a drug diversion program for the possession or sale of marijuana?

Drug diversion is a program that allows low-level drug offenders to avoid incarceration. In the drug diversion program, you will receive rehabilitation and treatment for drug addiction. If you complete the program, the court will dismiss your case.

However, drug diversion is only available for defendants facing charges for simple possession. If there is evidence of an intent to sell marijuana, you cannot benefit from this program. If you want to avoid jail time through a diversion, you must negotiate with the prosecution to reduce your charges from possession for sale to simple possession. This will require the insight of a skilled drug crime defense lawyer.

  • How will the prosecution prove that I possessed marijuana?

Proving possession is a critical part of your HSC 11359 case. Mostly, the prosecution will use circumstantial and physical evidence to prove possession. Possession can be actual, which occurs when you have the substance on your person. Additionally, you could be in constructive possession of the drug if evidence proves that you controlled the substance.

Offenses Related to Possession of Marijuana for Sale

The prosecution can introduce the following related charges to your HSC 11359 case:

Cultivation of Marijuana

California Health and Safety Code 11358 allows individuals under the age of twenty-one to cultivate no more than six marijuana plants. Cultivating more than the allowed plants can attract arrests and serious criminal charges. Under HSC 11358, the cultivation of marijuana is a misdemeanor. A conviction for the crime can result in a six-month jail sentence and up to $500 in fines.

If you are a registered sex offender or have several convictions for cultivation, you will face felony charges. If you are charged with a felony, the conviction will result in a three-year prison sentence. Sometimes the court could impose a fine of $10,000.

Sale and Transportation of Marijuana

You violate California HSC 11360 when selling, transferring, or importing marijuana. If you face an arrest for possession of marijuana for sale and the prosecutor presents evidence proving that you transported the substance, you could be charged with transportation and sale instead of possession for sale.

The following elements help prove your liability under this statute:

  • You sold, imported, furnished, or gave away marijuana.
  • You sold the substance without a valid license.
  • You knew of the nature of marijuana as a controlled substance.

A violation of HSC 11360(a) is a wobbler. The prosecution can file misdemeanor or felony charges against you. As a misdemeanor, a conviction for the offense is punishable by a jail sentence of six months and a $500 fine.

Under the following circumstances, you will be charged with felony transportation or sale of marijuana:

  • You have two or more prior convictions on your record.
  • You imported up to 28.5 grams of marijuana into California.
  • You knowingly sold marijuana to a person under the age of 18.
  • You are a registered sex offender.

If you face a felony conviction under this statute, you risk spending up to three years in prison.

Find a Reliable Drug Crimes Defense Attorney Near Me

Possession of marijuana in California is legal. However, the law regulates the specific amount allowed and the age limit of individuals who can possess the substance. If you possess marijuana with the intent to sell it, you could be arrested and charged with possession of marijuana with the intent to sell under California HSC 11359.

Law enforcement officers can ascertain your intent to sell a substance in several ways. This includes the quantity of the drug in your possession and the type of drug packaging. A conviction for possessing marijuana for sale is a serious offense that attracts life-changing consequences.

Fortunately, an arrest under this statute does not guarantee you will be convicted. With the guidance of a competent defense attorney, you can build a solid defense to fight the charges and avoid a conviction. At California Criminal Lawyer Group, we offer legal guidance and representation to all our clients battling drug crime charges in Santa Ana, CA. Call us at 714-844-4151 to discuss the facts of your case.