According to the California Health and Safety Code 11359HS, it is a crime to possess marijuana, also known as pot, for sale except as allowed by the law. Recreational marijuana became legal in California on January 1, 2018. However, the law only legalized the possession of pot for personal use. Possession of pot for sale could attract criminal charges unless in certain circumstances. It’s legal for businesses with licenses to sell marijuana to possess marijuana for sale; only to be sold to people above 21 years. The sale of medical marijuana in line with state laws is also legal. Possession of pot for sale is a severe crime under California law. If you are facing charges of marijuana possession for sale, we at the Los Angeles Criminal Lawyer can help you fight the charges.
What the Prosecutor Has to Prove
The prosecutor has to prove the following elements for the crime of possession of marijuana for sale:
You possessed or had a controlled substance
You were aware of the presence of the substance
You were aware that the content you possessed was a controlled substance
You intent to sell the substance illegally
The substance you possessed was marijuana
You have a usable or substantial amount of the substance
According to California law, all components of the Cannabis sativa plant qualify as marijuana. Therefore, you could be guilty of possession of pot for sale if you possessed the following elements:
A resin obtained from any area of the Cannabis sativa plant
A mixture, resin, derivative, salt, or compound made from the plant
You could either be in actual or constructive possession of pot. You could also be in joint possession of weed if you possessed it alongside another person. You are in actual possession of weed if you are keeping or holding it. You could also be in direct possession of pot if it is in an item that is in your hand. For instance, marijuana could be in your pocket or bag. Actual possession of pot could be shared; for example, if you are enjoying a bong with your friends, you are in shared actual possession.
You are in constructive possession of pot if you are not holding or touching the drug. As long as you have control over marijuana, you are in constructive possession, even if it is not on your person. You do not have to have direct interaction with marijuana physically for you to be in possession. You can exercise the control of pot through another individual or agent. As long as the agent or the person possessing the marijuana was following your instructions, you will also be guilty of possessing the controlled substance.
Just like in the case of shared actual possession of pot, you could also share constructive possession of pot with another individual. For instance, you could be sharing an apartment with your friend, and you have placed the pot in a shared cabinet. In this case, you have shared constructive possession of the substance.
If you weren’t aware of marijuana's presence, the prosecutor can't accuse you of possession of pot for sale. You can’t be guilty if you prove beyond doubt that you weren't aware of marijuana's presence. For example, if you live in a shared apartment, and your housemate hides pot in the house, you can deny the charges. As long as your roommate didn’t inform you that he or she had kept marijuana in the house, you would not be guilty of possession.
It is important to note that if marijuana is commonplace like a shared cabinet, it might be hard for you to prove a lack of knowledge. You would need the help of an attorney to prove that you were unaware of marijuana's presence.
The prosecutor also has to show that you were aware that the substance you possessed was controlled. The law does not require the prosecutor to show that you were aware that the controlled substance was marijuana. How can the prosecutor show that you were aware that the content you possessed was a controlled substance? Your conduct at the time of your arrest can help to show your knowledge. If you tried to run away from the police or you were extremely nervous at the time of question, it would be evident that you knew that you possessed a controlled substance. However, even with this substantial evidence, an experienced attorney can help you develop a good defense.
Proving Intent to Sell
It is legal to possess marijuana for personal use in California. For the prosecutor to accuse you of possession of pot for sale, he or she should prove that it was not for your use. According to the California Health and Safety Code 11359, selling involves exchanging pot for money or any other item of value. You could also exchange pot for a particular service.
You can sell marijuana by giving it to another person to get:
A house or apartment
If you have a license to sell marijuana in California, you can’t face charges for possession of pot for sale. The prosecutor can obtain direct or circumstantial evidence to prove that you wanted to sell marijuana. Direct evidence includes your statements, which might reveal that you want to sell marijuana. For instance, the arresting officer might hear you informing potential buyers that you’ve got the pot. An officer might also spot you exchanging marijuana for an item of value or money.
The prosecutor might also present circumstantial evidence indicating that you wanted to sell the marijuana. Unlike direct marijuana, which is hard to challenge, circumstantial evidence is easy to challenge with an attorney's help. Some of the circumstantial evidence that the prosecutor might present against you includes:
Possession of excessive quantities of marijuana which exceed the amount needed for personal consumption
Possession of specific equipment alongside marijuana including weighing scales and packaging baggies
Possession of pot in a location that is popular for illegal substances sales or black market marijuana
The nature of packaging of the marijuana; possession of pot in multiple packaging bags could indicate an intention to sell
Possession of substantial amounts of cash and weapons alongside the marijuana
An expert opinion that you possessed the marijuana with intent to sell
Amount of Marijuana
On the issue of the quantity of marijuana, which volume is too much? California law does not state the exact amount of marijuana that you should not exceed. However, when handling possession of pot cases, California courts say that the quantity of marijuana held by a suspect is crucial.
If you are a chain smoker, you could possess a substantial amount of marijuana for future use. As long as you store it properly, pot could go for long periods; it’s not highly perishable. If you buy marijuana in bulk for personal use, you could face conviction if the prosecutor assumes that pot is for sale.
At times, people entitled to medical marijuana use might face the law based on the amount of pot/marijuana they hold. It is essential to have a competent attorney, especially if the prosecutor accuses you of possessing marijuana for sale based on the amount of marijuana you hold.
Nature of Packaging
Most individuals who possess marijuana/pot for personal use put it in one container. Therefore, if you have placed the pot in different bags or containers, the officers must assume that cannabis is for sale. This evidence is likely to hold if you have packed the marijuana in equal quantities or sizes.
If the officers find other baggies, containers, or weighing scales alongside your marijuana, this will provide more evidence of your intent. However, it is essential to note that people have different ways of storing marijuana. You might store marijuana in separate bags or containers for several reasons:
The marijuana might have been indifferent containers at the time you acquired it.
Each bag or container might have contained a different type of marijuana.
You could store marijuana in different containers or bags to help you ration or monitor your daily usage.
Presence of Weapons or Cash
It’s not a crime to hold substantial amounts of money in California. Some people hold significant amounts of cash for emergencies. Other people might hold large sums of money because they do not trust banks. Also, it's not illegal for most people to keep a weapon like a gun at home.
The prosecutor might accuse you of marijuana possession for sale just because you had substantial amounts of money and weapons alongside marijuana. Exercising your legal, constitutional rights to hold a firearm might lead to wrongful prosecution of marijuana possession for sale.
A competent attorney can help prove that substantial amounts of money and weapons did not have anything to do with your possession of pot. You can point out that even if you had a weapon and substantial amounts of money; the marijuana was for your personal use.
Usable Amounts of Marijuana
You can’t face charges for possession of pot for sale unless you possessed usable amounts of marijuana. Usable means that marijuana should be adequate to be usable by a person as a controlled substance. Marijuana does not need to be sufficient to affect the consumer; it should only be enough to consume.
Consequences of Possession of Marijuana for Sale
For most defendants, the crime of possession of pot for sale is a misdemeanor. The punishment includes jail time in a county jail for not more than six months. The court might also impose a hefty fine not exceeding $500.
Under certain circumstances, you might face felony charges for possession of pot for sale. Felony charges will apply if:
You have a previous conviction for a violent felony. Violent felonies include crimes like murder and sex crimes on minors.
If you have two previous convictions for possession of pot for sale, the subsequent conviction is a felony.
If you possess marijuana for sale with an attempted sale or in connection with the sale to a person below 18 years, felony charges will apply.
For a felony conviction, the penalties include imprisonment in a county jail from 16 months, 2 years, or 3 years.
After committing the crime of marijuana possession for sale, you will not be eligible for the drug diversion program. The drug diversion program is available for simple marijuana possession. The diversion program is also available if you cultivate marijuana for personal use but exceed the amount allowed by the law. Therefore, after a conviction for marijuana possession for sale, your attorney can negotiate for a reduction of your charges to simple marijuana possession of pot. A reduction of your charges to simple marijuana possession will make you eligible for the drug diversion program.
You do not have to go to jail after committing the crime of simple possession of pot. For a misdemeanor conviction of possession of pot for sale, you will be eligible for a summary or misdemeanor probation instead of jail time. If the court grants you probation for a conviction under HS11359, you’ll not serve jail time.
While serving probation, you have to comply with certain conditions of probation:
Filing regular reports of your progress with the court
Paying restitution to the victim if any
Participating in a group or individual therapy
Submitting to drug-testing including impromptu drug testing
Participating in community labor or community service
A search of your property or person even without a search warrant
Common Legal Defenses
After an accusation of marijuana possession for sale, you do not have to accept all the charges the prosecutor brings against you. With the help of a competent attorney, you can challenge the prosecutor's allegations. Some of the applicable legal defenses for possession of pot for sale are:
The Marijuana was For Your Own Use
Consumption of marijuana in California is legal. Therefore, if you can convince the court that the marijuana was for your use, you can’t be guilty of possession of pot for sale. If the prosecutor states that you had packaged the marijuana for sale, you can assert that it was packaged when you bought it. If the prosecutor states that you had a large amount of marijuana, you could state that you were storing it for future use.
You Didn’t Know About the Presence of Marijuana
You can also fight charges for marijuana possession by stating that you were not aware of its presence. For instance, another person might have placed the marijuana in your backpack without your knowledge. Your roommate might have brought marijuana into your house without your knowledge. You can only face charges if you were aware of the presence of marijuana.
You’re a Primary Caregiver to a Person Who Uses Medical Marijuana
Doctors often prescribe medical marijuana to patients, especially patients suffering from terminal illnesses like cancer. If you’re a primary caregiver to a person who uses medical marijuana, you have a right to possess marijuana for the person’s use. There’s no limit to the amount of marijuana you should possess if it is for medical use.
You Intended to Share the Marijuana with Friends and Not to Sell
You can fight possession of pot for sale charges by pointing out that you intended to share the marijuana with friends and not to sell. If you manage to convince the court that you didn’t intend to sell the marijuana in the black market, the court might dismiss your charges.
You can also fight charges for marijuana possession for sale by stating that you intended to dispose of the pot.
If the police find marijuana while conducting an illegal charge, you can fight the charges based on illegal searches. You can point out that the police subjected you to brutality or illegal search, which led to a violation of your constitutional rights.
Under California law, certain crimes are almost similar to the crime of possession of pot for sale. Some of the related crimes are:
Simple possession of pot
Cultivation of Marijuana
Driving with Marijuana
Sale of Marijuana
It’s legal for persons above the age of 21 to have up to 28.5 g of marijuana/pot in California. It’s also legal to possess up to 8 g of concentrated cannabis. Possessing more than 28.5 grams of marijuana or 8 grams of concentrated cannabis is a misdemeanor offense. The offense is punishable by a fine not exceeding $500 and an imprisonment of up to 6 months in a county jail in California. If a person below 21 years possesses any quantity of marijuana, he or she will face infraction charges.
Adults above the age of 21 have a right to cultivate a maximum of six marijuana plants for personal use. However, the cultivation of an excess of six plants of marijuana is not allowable under the law. Cultivation of more than the allowable marijuana plants is a misdemeanor offense punishable by imprisonment of not over six months in a county jail in California. The offense could also attract a fine not exceeding $500. In certain instances, the cultivation of marijuana is a felony offense.
If you have committed the crime of marijuana possession for sale, you’re at risk of serving jail time and paying a hefty penalty. Los Angeles Criminal Lawyer can help you come up with a proper defense to fight the charges. Contact us at 310-502-1314 and speak to one of our attorneys.