In California it is still illegal to possess weed unless you are legally entitled to use medical marijuana.
However, under California Health and Safety Code 11357 HS, simple possession of not more than one ounce (28.5 grams) of marijuana for personal use--other than concentrated cannabis-- is usually just an infraction. An infraction is a violation of law punishable by a fine only. It does not subject you to jail time.
Consequences of HS 11357 possession of marijuana
In California the penalty for unlawful possession of marijuana depends on a variety of things:
- the type of marijuana,
- the amount of marijuana,
- whether the weed is for personal use,
- where the weed is found, and
- whether you have a prior criminal record (in the case of concentrated cannabis only).
In general, the penalties for simple possession of marijuana in California are as follows:
Type/amount of marijuana
28.5 grams or less
28.5 grams or less on school grounds
up to 10 days
28.5 grams or less on school grounds
1st offense: none
2nd offense: 10 days
More than 28.5 grams
16 months or
Defenses to HS 11357 marijuana possession charges
There are many defenses to charges under California Health and Safety Code 11357 HS. Some of the most common are:
- You were legally entitled to use medical marijuana.
- You didn't possess any marijuana.
- The weed wasn't yours.
- You didn't know the pot was there.
- The marijuana was discovered during an illegal search.
Our California marijuana attorneys can help
Did the cops bust you for possessing marijuana? You came to the right place for help and for answers.
In this article, our California marijuana attorneys1 provided detailed answers to the most frequently asked questions about Health and Safety Code 11357 HS California's possession of marijuana law:
If, after reading this article, you would like more information about California marijuana laws, we invite you to contact us at Shouse Law Group.
Health and Safety Code 11357 HS prohibits possession marijuana for personal use.2 A personal possession charge is its own offense. It is not the same as a violation of
- Health and Safety Code 11359 HS California's law against possessing marijuana for sales,
- Health and Safety Code 11358 HS California's law against cultivating marijuana, or
- Health and Safety Code 11360 HS California's law against selling or transporting marijuana.
In order for the prosecutor to convict you of HS 11357 California's "personal possession of marijuana" law, he/she must prove the following facts (otherwise known as "elements" of the crime):
- you possessed marijuana,
- you knew that you possessed marijuana,
- you knew it was a drug, and
- you possessed enough marijuana that it could be used as a drug.3
Let's take a closer look at some of these terms and phrases to gain a better understanding of their legal definitions.
Possession of the marijuana may be actual or constructive.4
"Actual" possession is the same as physical possession. You would be in actual possession of marijuana if, for example, you carried a joint in your pocket, your purse or your backpack.
You have "constructive" possession of marijuana when you either exercise control over marijuana or have the right to do so. You can exercise constructive possession by yourself or jointly with another.
- You have constructive possession over the pot that you keep in your dresser drawer.
- You and your roommate share constructive possession over the weed that you both keep in your kitchen pantry.
However, simply agreeing to buy marijuana does not give you constructive possession over it.5 In this type of situation, you do not violate this law unless and until you take physical possession of the drug.
And with respect to the drug itself, Health and Safety Code 11357 prohibits personally possessing marijuana or concentrated cannabis. "Concentrated cannabis"...commonly referred to as hashish or hash...is "the separated resin, whether crude or purified, from the cannabis plant."6 This distinction is only relevant at the time of sentencing which is discussed below under Section 2. What are the Penalties for Personally Possessing Marijuana in California?
If you didn't know that you were in possession of marijuana, you aren't guilty of this offense. Suppose, for example, that you borrow a friend's jacket and, unbeknownst to you, he left some weed in one of the pockets. The cops stop and search you, and discover the pot. Even though you technically possessed marijuana, you weren't aware of its presence, and therefore you haven't committed a crime.
Similarly, if your friend left his stash of weed in the compartment of your passenger side door...and you didn't know it was there...you are not guilty of possessing marijuana.
You must be aware that marijuana is a drug in order to be liable under Health & Safety Code 11357. It isn't necessary that you know its precise chemical makeup, only that it is an illegal drug.7 This particular element of the crime is usually easily satisfied by the prosecution. Rarely would a person possess weed without realizing what it is.
If you only possess marijuana residue or useless traces of the drug, that isn't sufficient to sustain a conviction...it simply indicates prior use. You must possess enough marijuana so that it may be used as a drug. However, that is not to say that there has to be enough...in either amount or strength...to produce the "effect" it is ordinarily expected to have on you.8
The penalties for Health & Safety Code 11357 vary, depending on the exact circumstances of your offense.
As of January 1, 2011, possessing no more than one ounce or 28.5 grams of marijuana...other than concentrated cannabis...is an infraction, punishable by a maximum fine of $100. This law is stated in Health & Safety Code 11357 (b).9
However, if you are over 18 and possess less than one ounce of marijuana (other than concentrated cannabis) on school grounds while the school is open for classes or school-related activities, you face a misdemeanor punishable by up to ten days in a county jail and a maximum $500 fine.10
And if you are under 18 and are convicted under these same circumstances, you face a maximum fine of $250 for a first offense. A second offense is punishable by up to $500 and a maximum ten-day commitment to a juvenile detention facility.11
If you are convicted of possessing more than one ounce of marijuana...and again, more than one ounce of marijuana other than concentrated cannabis...you face a maximum of six months in the county jail and a maximum fine of $500.12
Possession of concentrated cannabis is a misdemeanor that subjects you to a maximum $500 fine and up to one year in a county jail.13
However, you will face felony penalties (including sixteen (16) months, two (2) years or three (3) years in prison) for possession of concentrated cannabis if you have any of the following convictions on your record:
- a conviction for any of a small list of especially serious felonies, including murder, sexually violent offenses, sex crimes against a child under 14, and gross vehicular manslaughter while intoxicated, OR
- a conviction for a sex crime that subjects you to California's sex offender registration requirement.
Prior to the passage of the voter initiative Proposition 47 in November 2014, possession of concentrated cannabis was a wobbler (meaning it could be charged as a misdemeanor OR a felony) for all defendants. If you were convicted of this offense before the passage of Prop 47 and received a felony sentence, you may petition the court to reduce your sentence to a misdemeanor.
If you are under 21 but over 13...and are convicted of any of the offenses outlined above...your driver's license or privilege to obtain a driver's license will be suspended for one year. This penalty will be imposed for each conviction under this law or any other drug-related law.14
If, however, you are not convicted of any further drug or alcohol-related offenses within a 12-month period following your initial conviction, the court has the discretion to override the suspension.15
Health and Safety Code 11357 HS California's law against personally possessing marijuana is an offense that qualifies for California drug diversion.
"Drug diversion" refers to alternative sentencing programs that allow eligible defendants who are charged with nonviolent personal possession drug offenses to participate in drug rehabilitation. Those who successfully complete rehab typically have their drug charge(s) dismissed.
California's drug diversion programs are administered through
And because an individual who participates in drug diversion is usually permitted to do so in lieu of incarceration, a personal possession charge is often a charge worth fighting for.
As Oakland criminal defense attorney Cameron Bowman18 explains, "Clients who are charged with marijuana sales offenses are ineligible from participating in a California drug diversion program. This means that a sales conviction will typically result in a state prison sentence. When one of our clients is charged with a marijuana sales offense, we will therefore do our best to negotiate a reduced plea to a personal possession charge in order to allow him/her to enter drug rehab and to secure a dismissal of his/her charges."
Fortunately, there are a variety of legal defenses that are applicable to a personal possession charge that a skilled California marijuana lawyer can present on your behalf.
If you are authorized to possess "medical marijuana", that is probably your strongest defense.
Health and Safety Code 11362.5 California's Compassionate Use Act authorizes the use of medical marijuana. If you possess marijuana...which may include concentrated cannabis...because
- you have personal medical needs or are the primary caregiver of a medical marijuana patient with a medical need and possess the drugs exclusively for that patient, and
- a doctor recommended or approved marijuana to help treat the condition,
you are not guilty of a crime. It is not necessary that you possess a medical marijuana ID card, but having one is a quick and easy way to demonstrate to the police that you are a medical marijuana patient. However, in order for a medical marijuana defense to apply, you must only possess an amount of marijuana that is reasonably related to the patient's medical needs.19
If you don't qualify for a medical marijuana defense, do not despair. There are still a variety of defenses that apply to Health & Safety Code 11357 HS. Examples of some of the most common include (but are not limited to):
You didn't possess the marijuana
If you didn't possess marijuana, you aren't guilty of this crime. This might be the case if, for example, the police mistook someone else's pot for your own. Clearly, this defense works best when you are not in physical control of the drug. But even then, you could still potentially claim
- the marijuana belonged to a friend whose clothes, bag, etc. you were borrowing, or
- someone slipped the pot into your pocket, etc. to avoid his/her own criminal liability.
You didn't know you possessed the marijuana
Similar to above, even if you did physically possess a joint...but were not aware you were doing so...you haven't violated the law. Possession of marijuana is not enough by itself to sustain a conviction. If the prosecutor can't additionally prove that you knew you possessed the drug, then you are entitled to an acquittal.
Referring back to an earlier example, if a friend leaves his pot in your car without your knowledge, you are not guilty of this offense.
The marijuana was discovered during an illegal search and seizure
Often times, marijuana-related offenses...and for that matter, most California drug crimes...trigger illegal search and seizure issues. For example, police routinely violate California's search and seizure laws when they seize drugs by
- executing a search without a valid California search warrant,
- searching a location that is beyond the scope of a valid warrant, and/or
- initiating an illegal stop.
When any of these issues arise, your California marijuana attorney will likely file a Penal Code 1538.5 PC motion to suppress evidence which, if successful, could result in a dismissal...or at the very least...a significant reduction of your charge(s).
Call us for help...
If you or loved one is charged with Health & Safety Code 11357 HS possession of marijuana and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's possession of marijuana laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.20
1 Our California marijuana attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2 Health and Safety Code 11357 HS California's law against possession of marijuana for personal use. ("“(a) Except as authorized by law, every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that 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. (b) Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100). (c) Except as authorized by law, every person who possesses more than 28.5 grams of marijuana, other than concentrated cannabis, shall be punished by imprisonment in the 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. (d) Except as authorized by law, every person 18 years of age or over who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars ($500), or by imprisonment in the county jail for a period of not more than 10 days, or both. (e) Except as authorized by law, every person under the age of 18 who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be subject to the following dispositions: (1) A fine of not more than two hundred fifty dollars ($250), upon a finding that a first offense has been committed. (2) A fine of not more than five hundred dollars ($500), or commitment to a juvenile hall, ranch, camp, forestry camp, or secure juvenile home for a period of not more than 10 days, or both, upon a finding that a second or subsequent offense has been committed.")
3 See California Jury Instructions - Criminal (CALJIC) 16.030.
4 See same.
5 See Judicial Council of California, Criminal Jury Instruction (CALCRIM) 2375 -- Simple Possession of Marijuana: Misdemeanor.
6 See same.
7 People v. Guy (1980) 107 Cal.App.3d 593, 600-601.
8 See CALCRIM 2375 -- Simple possession of marijuana, endnote 5, above.
See also People v. Rubacalba (1993) 6 Cal.4th 62, 66.
9 See Health and Safety Code 11357 HS California's law against possessing marijuana, subdivision (b), endnote 2, above.
10 See Health and Safety Code 11357 (d), endnote 2, above.
11 See Health and Safety Code 11357 HS California's law against possessing marijuana, subdivision (e), endnote 2, above.
12 See Health and Safety Code 11357 (c), endnote 2, above.
13 See Health and Safety Code 11357 HS California's law against possessing marijuana, subdivision (a), endnote 2, above.
14 California Vehicle Code 13202.5 VC.
15 See same.
16 California Penal Code 1210.1 PC (also known as Proposition 36) -- Possession of Controlled Substances; Probation; Exceptions. ("(a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense [such as a California personal possession of marijuana charge] shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program.
17 California Penal Code 1000 PC.
18 Oakland criminal defense attorney Cameron Bowman defends clients charged with California marijuana related charges throughout Northern California which includes (but is not limited to) the Santa Clara, Contra Costra, San Francisco and Alameda County courthouses.
19 See CALCRIM 2375 -- Simple possession of marijuana.
See also CALCRIM 2377 -- Simple possession of concentrated cannabis (Health & Saf. Code, � 11357(a)), endnote 5, above.
20 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's marijuana laws. Our Nevada law offices are located in Reno and Las Vegas.