§ 11359 HS – Possession of Marijuana for Sale

California Health & Safety Code § 11359 HS makes it a crime to have possession of marijuana with the intent to sell it without a license. This offense is treated as a misdemeanor for most defendants. The potential penalties are:

• Up to six (6) months in county jail, and/or
• A fine of up to five hundred dollars ($500).

However, possession of marijuana with intent to sell it without a license becomes a California felony if you:

• have serious violent crimes or sex crimes on your record, or
• are a repeat marijuana offender, or
• intended to sell marijuana illegally to minors.

The full language of the code section reads as follows:

HS 11379. Every person who possesses for sale any cannabis, except as otherwise provided by law, shall be punished as follows:

(a) Every person under the age of 18 who possesses cannabis for sale shall be punished in the same manner provided in paragraph (1) of subdivision (b) of Section 11357.

(b) Every person 18 years of age or over who possesses cannabis for sale shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.

(c) Notwithstanding subdivision (b), a person 18 years of age or over who possesses cannabis for sale may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code if:

(1) The person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code;

(2) The person has two or more prior convictions under subdivision (b); or

(3) The offense occurred in connection with the knowing sale or attempted sale of cannabis to a person under the age of 18 years.

(d) Notwithstanding subdivision (b), a person 21 years of age or over who possesses cannabis for sale may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code if the offense involves knowingly hiring, employing, or using a person 20 years of age or younger in unlawfully cultivating, transporting, carrying, selling, offering to sell, giving away, preparing for sale, or peddling any cannabis.

To help you better understand California’s laws on possessing marijuana for the purpose of sale, our criminal defense attorneys discuss the following:

• 1. Elements of the Crime
• 2. Penalties
• 3. Defenses
• 4. Related Marijuana Offenses
• 5. Federal Law
• 6. Prop 64 Resentencing

1.  Elements of the Crime

California Health and Safety Code 11359 HS makes it a crime to possess marijuana for sale “except as provided by law.”¹

For you to be convicted of marijuana possession for sale in California, prosecutors must prove beyond a reasonable doubt the following elements of the jury instructions.²

1. You possessed a controlled substance,
2. You knew of its presence,
3. You knew of its nature or character as a controlled substance,
4. You intended to sell it ILLEGALLY (that is, without the required state and local marijuana sales licenses),
5. The substance was marijuana, AND
6. There was a usable amount.³

Let’s take a closer look at each of these “elements of the crime.”

Marijuana

California Health and Safety Code 11018 defines “marijuana” as all parts of the plant Cannabis sativa L., whether growing or not. This includes:

• Seeds,
• Leaves,
• Resin extracted from any part of the plant, and
• Every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.⁴

Possession

Possession means to be in control of the marijuana.⁵ There are three ways you can possess marijuana:

1. Actual possession is physically carrying the marijuana on your person.⁶
2. Constructive possession means to keep the marijuana in a place where you have control over, such as your safe, your home, your car, or with your agent.⁷
3. Joint possession means you possess the marijuana with at least one other person.⁸

Knowledge of the Marijuana’s Presence

Merely having the right to control marijuana is not enough to make you guilty under California Health and Safety Code 11359.  You must also know that the pot is there.

Note, however, that when drugs are discovered in a common area such as a kitchen cabinet — as opposed to a private place like someone else’s bedroom — it is enough to raise the inference that the drugs were yours. In such a case, you may be required to prove at trial that they were not.⁹

Knowledge that What You Had Was a Controlled Substance

Before you can be found guilty under Health and Safety Code 11359, the prosecutor must also prove that you knew that what you had was a controlled substance. It is not necessary that the prosecutor prove that you knew, however, that it was marijuana.¹⁰

One of the factors that can be introduced at your trial to prove you knew you possessed a controlled substance is your behavior at the time of your arrest. For instance, you might be deemed to know you have a controlled substance if:

• You try to hide when the police approach,¹¹ or
• You seem unusually nervous when the police question you.¹²

Intent to Sell Marijuana Illegally

“Selling” means exchanging marijuana for money, services, or anything of value.¹³

Sometimes there will be direct evidence of your intent to sell marijuana, such as:

• Your statements (“I’ve got some pot to sell”), or
• An officer seeing you exchange marijuana for money or something else of value.¹⁴

Intent is more likely to be proved, however, by circumstantial evidence (“indicia of sale”).¹⁵ This is often where the prosecution’s case is weakest.

Circumstantial evidence can include:

• A quantity of marijuana in excess of a few ounces,
• Equipment found with the marijuana (for example, baggies and scales),
• Marijuana found on you in a place where black-market marijuana or other illegal drug sales often take place,
• The manner of packaging (for example, multiple containers each with the same amount of pot),
• The discovery of cash and or weapons with the marijuana, and/or
• The opinion of an expert that the marijuana was being held for sale.¹⁶

The Substance Must Actually Have Been Marijuana

If the substance you possessed was not marijuana, you can not be found guilty of possessing marijuana, let alone possessing it for sale.

Example: You buy what you think is half a pound of marijuana from a guy at school. You intend to put it into smaller baggies and resell it to your friends (who are under 18). Then it turns out that what you actually bought was sage – a legal herb. Since what you bought was not actually marijuana, you have not violated California Health and Safety Code 11359 even if you mistakenly believed it was pot.

There Must Have Been a Usable Amount of Marijuana

To be guilty under California Health and Safety Code 11359, you must possess a usable amount of pot.

“Usable amount” is defined as a quantity that is enough to be used by someone as a controlled substance. It does not have to be enough (in either strength or amount) to get someone stoned.¹⁷

If all the police find is a trace amount of pot or debris, you cannot be found guilty under HS 11350 — even if the police find scales, baggies, cash, or other indicia of sale.¹⁸

2.  Penalties

Possession of marijuana for sale without a license in California is usually a misdemeanor. The penalty is a county jail sentence of up to six months and/or a fine of up to $500.¹⁹

However, California imposes felony penalties for HS 11359 if either:

1. You have a prior conviction for one of a list of particularly serious violent felonies, including murder, sexually violent offenses, sex crimes against a child under 14, or gross vehicular manslaughter while intoxicated, or a sex crime that requires you to register as a sex offender;
2. You have two or more prior misdemeanor convictions for marijuana possession for sale; or
3. You possessed marijuana for sale in connection with a knowing sale or attempted sale to someone under 18.²⁰

In any of the above scenarios, the penalty for marijuana possession for sale is 16 months, two years or three years in county jail.²¹

No Drug Diversion Available

You are not eligible for drug diversion (treatment) in lieu of jail time for possession with intent to sell.²² Drug diversion is available only for:

• Simple possession of excessive amounts of marijuana and/or
• Cultivation for personal use of more marijuana than is permitted by California law.²³

Probation

You may be eligible for misdemeanor (summary) probation instead of jail time for HS 11359.²⁴ Common probation terms are:

• Periodic “progress reports” with the court,
• Payment of restitution,
• Participation in individual or group therapy,
• Submission to drug testing,
• Community service or community labor, and/or
• Searches of your person or property with or without a warrant.

3. Defenses

There are numerous defenses to charges under California Health and Safety Code 11359. Depending on the circumstances, these might include:

• You did not know the pot was there,
• The pot was for your personal use,²⁵
• You are the primary caregiver for a medical marijuana patient and the marijuana was for their personal use,²⁶
• You were planning on sharing some of the pot with friends, not selling it on the black market,²⁷
• You were disposing of the marijuana,²⁸ or
• The marijuana was found during an illegal search.²⁹

4.  Related Marijuana Offenses

• Simple possession – Health and Safety Code 11357
• Cultivation – Health and Safety Code 11358
• Sale – Health and Safety Code 11360
• Driving with marijuana – Vehicle Code 23222(b)

5.  Federal Law

The federal Controlled Substances Act – Title 21 USC

The federal “Controlled Substances Act” (“CSA”) classifies marijuana as a Schedule 1 drug. (Though, it may soon be reclassified to schedule III.)

21 USC 841 (a)(1) prohibits possessing marijuana for sale. A first offense involving less than 50 kilograms of marijuana and/or fewer than 50 plants is punishable by:

• Up to 5 years in prison, and
• A fine of up to $250,000.

Subsequent offenses — or greater amounts — are punishable by larger fines and longer sentences.

Under the Supremacy Clause of Article VI of the U.S. Constitution, federal law takes precedence over conflicting state law. Technically, therefore, you violate federal as well as California law when you possess marijuana for sale.

However, unless you are a large-scale drug trafficker or are on federal land, you are unlikely to be prosecuted under federal law.³⁰

Immigration Consequences

A federal or state conviction for possessing marijuana for sale counts as an “aggravated felony” for purposes of the Immigration and Nationality Act. The immigration consequences of a criminal conviction for marijuana can include deportation if you plead guilty to – or are found guilty of – possessing marijuana for sale.³¹

6. Prop 64 Resentencing

Proposition 64, passed in 2016, provides for modification of sentence (resentencing) for people convicted under California’s previous, harsher marijuana laws.

If you are currently serving a felony sentence under the old version of Health and Safety Code 11359 HS, but you would have been charged with a misdemeanor under Prop 64, you may apply to a court to have your sentence reduced.

The judge is supposed to presume that you meet the criteria for Proposition 64 resentencing unless a prosecutor proves otherwise by “clear and convincing evidence.” The judge is then supposed to resentence you unless they determine it would pose an unreasonable risk of danger to public safety.³²

Depending on how much of your sentence you have already served, resentencing under Prop 64 could lead to your immediate release from jail.

The same is true if you have already completed a felony sentence for marijuana possession for sale. Marijuana legalization means that you can apply to have your conviction redesignated from a felony to a misdemeanor.³³

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