HS 11359 possession for sale
California Health and Safety Code 11359 HS makes it illegal to possess any amount of marijuana with the intent of selling it. Unlike simple possession of marijuana for personal use -- which is usually a non-criminal infraction -- violation of HS 11359 is a California felony.
Consequences of possessing marijuana for sale
The penalty for HS 11359 possessing marijuana with intent to sell it is:
- 16 months, or two or three years in county jail
In addition, there are serious collateral consequences of a California felony conviction. One of the most important is that you will be legally obligated to disclose the conviction if asked on a job application.
Penalty Chart for common California marijuana offenses
|Offense||Nature of Penalty||Jail Time||Maximum Fine|
|Possession for personal use|
|28.5 grams or less of marijuana (other than concentrated cannabis)||infraction||none||$ 100|
|More than 28.5 grams of marijuana (other than concentrated cannabis)||misdemeanor||6 months||$ 500|
16 months or 2-3 years
|Possession with intent to sell|
|Any amount of marijuana||felony||16 months or 2-3 years||none|
Chart adapted from Norml.org: California Laws and Penalties
Probation instead of jail time
Depending on your criminal history (if any) and other factors, you may be eligible for California formal (felony) probation.
If you are sentenced to probation, you may receive little or no jail time. But you may be subject to restrictions, such as:
- Regular meetings with your probation officer,
- Drug testing,
- Community service, and/or
- Warrantless searches of your person or property.
Can I receive drug treatment in lieu of jail time?
You are not eligible for drug diversion (treatment) if you are convicted of possessing marijuana for sale. Drug diversion is available only for simple possession or cultivation of marijuana for personal use.
However, it is sometimes possible to get the charged reduced to simple possession, for which diversion is available.
How does the prosecutor prove I possessed marijuana for sale?
For a Health and Safety Code 11359 conviction, the prosecutor must prove that:
- You possessed a usable quantity of marijuana;
- You knew of its presence and its nature as a controlled substance; and
- You intended to sell the marijuana.
The most difficult element for the prosecutor is proving your intent to sell. Intent may be established through direct or circumstantial evidence, including:
- Your statements (such as “I have some pot to sell”), or
- An offer to sell marijuana to someone.
Circumstantial evidence (“indicia of sale”)
- The amount of marijuana seized is larger than a couple of ounces,
- The pot is packaged in several small containers or baggies,
- Equipment such as scales and baggies was found with the pot,
- You are found in a place where drug deals are often carried out,
- You are found with no paraphernalia and you aren't stoned,
- You keep a lot of cash and/or weapons near the pot,
- You have a past history of selling drugs, or
- The police witness you engage in a transaction in which marijuana and something of value changes hands.1
Negotiating a lesser charge
Often, an experienced California criminal defense attorney can get HS 11359 charges reduced to simple possession of marijuana under California Health and Safety Code 11357.
The benefits of a charge of simple possession over possession for sale include:
- No (or shorter) jail time,
- If charged as an infraction, no need to disclose it on a job application, and
- If charged as a misdemeanor, misdemeanor (summary) probation rather than formal probation.
Defenses to possessing marijuana for sale in California
There are a quite a number of potential defenses to California Health and Safety Code 11359 HS.
Some of the most common are:
- You didn't know the pot was there,
- The pot was for your personal use,
- The pot was for the personal use of a medical marijuana patient for whom you are a primary caregiver,
- You were planning on sharing some of the pot with friends,
- You were disposing of the marijuana, or
- The marijuana was found during an illegal search.
People who possess marijuana for personal use can easily find themselves unjustly charged with intending to sell it.
But our California criminal defense lawyers include former prosecutors and cops. We know how to find the holes in the prosecution's case.
To help you better understand California's laws on possessing marijuana for the purpose of sale, our criminal defense attorneys discuss the following, below:
1. Elements of the crime of California Health and Safety Code 11359 HS
California Health and Safety Code 11359 HS provides that:
“Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.”2
To prove that you are guilty of violating Health and Safety Code 11359, the prosecutor must prove ALL of the following:
- You possessed a controlled substance,
- You knew of its presence,
- You knew of its nature or character as a controlled substance,
- You intended to sell it,
- The substance was marijuana, AND
- There was a usable amount.3
Let's take a closer look at each of these “elements of the crime.”
1.1 The legal definition of “marijuana”
California Health and Safety Code 11018 defines “marijuana” as all parts of the plant Cannabis sativa L., whether growing or not.
- the seeds,
- the leaves,
- the 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 of marijuana may be “actual” or “constructive.”
In addition, two or more people can possess something at the same time (“joint possession”).5
1.2.1 Actual possession
You have “actual” possession of marijuana when:
- you are holding it, or
- it is in something you are holding or wearing, such as a gym bag or the pocket of your pants.
Example: After school, your brother asks you to take a baggie full of marijuana home for him and hide it in his bedroom. You take it and put it in your backpack and walk home. During your walk, you have actual possession of the marijuana.
Actual possession may be shared with another person or other people.
Example: You and some friends are sharing a bong. You have joint actual possession of the marijuana.
1.2.2 Constructive possession
You do not have to hold or touch marijuana, or have it on your person, in order to possess it. It is enough that you exercise control over it, or have the right to do so.6 This is known as “constructive" possession.7
Example: You grow medical marijuana in your backyard. Because you have the right to control what grows in your garden, you have constructive possession of the marijuana… even when you aren't home.
You don't even need to interact with marijuana in order to possess it. Under the law, control of marijuana can be exercise through another person (an “agent”).8
Example: You own a commercial marijuana growing operation, and hire someone to run the day-to-day operations. Because you are exercising control of the marijuana through that person, you have constructive possession of any marijuana that is grown or processed there… even if you never go there yourself.
Like actual possession, constructive possession may be shared with one or more other people.
Example: You and your roommate keep a stash of marijuana in a kitchen cabinet at your apartment. Because both of you have the right to control it, you share joint possession of the pot... even when you are both at work, or when one of you is smoking the pot and the other isn't around.
1.3 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.
Example: Your roommate hides some pot in a kitchen cabinet of your apartment. But he doesn't tell you he is doing it, and you don't know the pot is there. Even though you have dominion over the kitchen cabinet, you aren't guilty under Section 11359 HS.
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
1.4 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 isn't necessary that the prosecutor prove that you knew, however, that it was marijuana.10
Example: Your roommate brings home a baggie full of green stuff, which she tells you is sage. She says she is going to use it to “smudge” (spiritually cleanse) your apartment. The baggie is actually full of marijuana that she is planning to sell. If you don't realize that the “sage” is actually pot, you are not guilty under Health and Safety Code 11359.
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
However, a skilled criminal defense attorney will argue that it was the police themselves -- and not the presence of drugs -- that made you nervous.
1.5 Intent to sell marijuana
1.5.1 The legal definition of “selling”
For purposes of California Health and Safety Code 11359, “selling” means exchanging marijuana for money, services, or anything of value.13
Examples of “selling” include giving someone marijuana in exchange for:
- an apartment,
- other drugs,
- someone cleaning your house, or
- satisfaction of a debt.
1.5.2 Direct evidence
Sometimes there will be direct evidence of your intent to sell marijuana. Direct evidence might include:
- Your statements (“I've got some pot to sell”), or
- An officer seeing you exchange marijuana for money or something else of value.14
1.5.3 Circumstantial evidence
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 (e.g., baggies and scales),
- marijuana found on you in a place drug sales often take place,
- the manner of packaging (e.g., 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
Let's take a closer look at just a few of these indicia of sale:
California Health and Safety Code 11359 HS says nothing about quantity.
However, California courts have held that quantity may be circumstantial evidence of intent to sell.
But how much is too much?
A daily smoker of marijuana might go through as much as an ounce of marijuana a week.17 This works out to approximately one pound every 3-4 months.
But… when properly stored, marijuana can keep for months, if not years.18 Some people buy marijuana in quantity in order to save money. Others plan on sharing their pot with friends. Either way, you could reasonably have a pound or more of marijuana with no intention whatsoever of selling it.19
Yet it is possible to be convicted based on nothing more than a law enforcement officer's expert opinion that the amount you possessed indicated your intent to sell.20
Even those legally entitled to use medical marijuana can find themselves having to defend the amount of marijuana they use.21
This is just one reason why it's so important to have an experienced California criminal defense attorney in your corner when you are accused of the intent to sell marijuana.
- The manner of packaging
Many people who possess pot for personal use keep it in a single container. So if marijuana is packaged in several small containers or baggies, the police and prosecutors assume that it is intended for sale -- especially if they are the same weight and/or size.
This is particularly true if equipment such as a scale and baggies or other containers are found with the marijuana.22
But not everyone stores pot the same way. And there are many valid reasons why someone might store pot in different containers, including:
- Each container contains a different variety of pot,
- It was already in separate containers when you bought it, or
- You are rationing your daily use.
Example: Hans suffers from chronic vertigo. He decides to try marijuana to treat it. A dispensary recommends a dozen different kinds of pot and Hans decides to try them all.
On his way home, Hans is pulled over for running a stop sign. When the officer discovers almost a pound of pot packaged in equally portioned baggies, she arrests Hans for possession of marijuana for sale.
However, Hans' lawyer should be able to prove that Hans was planning on experimenting with the different varieties. The prosecutor will most likely drop the charges.
- The presence of cash and/or weapons
There is nothing illegal about keeping large amounts of cash in your home. Many people in California do it in case of an earthquake, or because they don't trust the banks.
Nor, for most people, is there anything illegal about keeping a weapon in the home.23
Yet it's an unfortunate fact that saving your cash or exercising your constitutional right to bear arms can contribute to prosecution under HS 11359.
A good criminal defense attorney can often show how your cash and weapons were unrelated to any marijuana sales. And when he or she does, the charges will often be dropped or reduced.
1.6 The substance must actually have been marijuana
If the substance you possessed wasn't marijuana, you can't 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. But it turns out that what you actually bought was sage – a legal herb. Since what you bought wasn't actually marijuana, you have not violated California Health and Safety Code 11359… even if you mistakenly believed it was pot.
1.7 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.24
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.25
2. The Penalty for possessing marijuana for sale in California
2.1 Incarceration in county jail
Possession of marijuana for sale in California is a felony. The penalty is a county jail sentence of:
- 16 months,
- two years, or
- three years.26
Which of these terms you will serve currently rests within the discretion of the court.27 Effective as of January 1, 2017, however, the court will be required to impose the middle penalty unless there are circumstances in mitigation or aggravation of the crime.28
2.2 No drug diversion available
You are not eligible for drug diversion (treatment) in lieu of jail time for possession with intent to sell.
Drug diversion is available only for simple possession and/or cultivation for personal use.29 This is just one of the reasons why it is so important to try to negotiate the charges down to simple possession.
Other reasons include the collateral consequences of a California felony conviction. One of the most important of these is the requirement to disclose the conviction in response to questions on job applications.30
2.3 Felony (formal) probation
You may be eligible for California felony (formal) probation instead of jail time.31 If probation is granted, you will serve none (or at most, one year) of your sentence in jail.
But you will be subject to certain restrictions. These may include:
- Meetings with a probation officer (usually once a month),
- 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 to possessing marijuana for sale
There are numerous defenses to charges under California Health and Safety Code 11359. Depending on the circumstances, these might include:
- You didn't know the pot was there,
- The pot was for your personal use,32
- You are the primary caregiver for a medical marijuana patient and the marijuana was for his/her personal use,33
- You were planning on sharing some of the pot with friends, not selling it,34
- You were disposing of the marijuana,35 or
- The marijuana was found during an illegal search.36
4. Related offenses
4.1 Simple possession - Health and Safety Code 11357
California Health and Safety Code 11357 punishes possession of marijuana for personal use (“simple possession”).
Legal medical marijuana users and their primary caregivers are exempt from prosecution under 11357 HS, to the extent they possess only enough marijuana for the patient's reasonable, medical use.37
For everyone else, possession of not more than 28.5 grams of marijuana (other than concentrated cannabis) is not a crime. It is an infraction, punishable by up to a $100 fine.38
Possession of more than 28.5 grams of marijuana is a misdemeanor, punishable by up to six months in prison and/or a $500 fine.39
Possession of concentrated cannabis in any amount is a felony. It is punishable by 16 months, or two or three years in jail.40
4.2 Cultivation - Health and Safety Code 11358
Unless you are a legal medical marijuana user or primary caregiver, California Health and Safety Code 11358 makes it unlawful to:
- dry, or
marijuana or any part of the marijuana plant.
The unlawful cultivation of marijuana is a felony. The penalty for a first offense is 16 months, or two or three years in county jail.41
4.3 Sale – Health and Safety Code 11360
California Health and Safety Code 11360 HS makes it unlawful to do -- or attempt to do -- any of the following:
- import into California,
- give away, or
There are some exceptions for people who are primary caregivers to medical marijuana patients.
Giving away or transporting more than 28.5 grams of marijuana – or any amount of concentrated cannabis – is a felony. The penalty is 16 months, or 2 or 3 years in county jail.
And selling or importing any amount of any type of marijuana is a felony. It, too, is punished by 16 months, or 2 or 3 years in county jail.
4.4 Driving with marijuana – Vehicle Code 23222(b)
California Vehicle Code 23222(b) VC prohibits driving while in possession of up to 28.5 grams of marijuana. It is the marijuana equivalent of driving with an open container of alcohol in the vehicle.
Violation of VC 23222(b) is punished separately from -- and in addition to -- marijuana offenses under the Health and Safety Code.44
Driving with marijuana is an infraction. It can be punished by up to a $100 fine.45
5. Federal law
5.1 The federal Controlled Substances Act – Title 21 USC
The federal “Controlled Substances Act” (“CSA”) is set forth in Title 21 of the United States Code. It classifies marijuana as a Schedule 1 hallucinogenic drug with a high potential for abuse and no currently accepted medical use.46
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 five (5) years in prison, and
- A fine of up to $250,000.47
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.48 Technically, therefore, you violate federal as well as California law when you possess marijuana for sale.49
Generally speaking, however, the federal government is only interested in large-scale drug traffickers. Unless the quantity of marijuana is large, or other federal crimes are involved, you are unlikely to be prosecuted for possession of marijuana for sale under federal law.50
An exception is possessing marijuana for sale on federally owned property within California. If you possess marijuana for sale while on a federal property you may face charges under the federal CSA.
Federal property includes:
- post offices,
- federal courts, and
- national parks.
5.2 Possession of marijuana for sale and immigration
A conviction for possessing marijuana for sale counts as an “aggravated felony” for purposes of the Immigration and Nationality Act. It doesn't matter whether the conviction was under California or federal law.
The immigration consequences of a criminal conviction for marijuana can include deportation if:
- you are an undocumented alien, and
- you plead guilty to – or are found guilty of – possessing marijuana for sale.51
Call us for help...
For more information about California's marijuana laws, or to discuss your case confidentially with one of our criminal defense attorneys, please don't hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada law re possession for sale of marijuana. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.
1 In the latter case, you might also be charged for the actual sale of marijuana under California Health and Safety Code 11360 HS.
2 California Penal Code 1170(h)(1).
3 Judicial Council of California Criminal Jury Instructions (CALCRIM) 2352 Possession for Sale of Marijuana (Health & Saf. Code §§ 11018, 11359).
4 California Health and Safety Code 11018. "Marijuana" means all parts of the plant Cannabis sativa L.,whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.
5 CALCRIM 2352, endnote 3.
7 People v. Barnes (1997) 57 Cal.App.4th 552, 67 Cal.Rptr.2d 162.
9 Beach v. Superior Court (1970) 11 Cal.App.3d 1032, 90 Cal.Rptr. 200.
10 See e.g., People v. Harris (2000) 99 Cal.Rptr.2d 618, 83 Cal.App.4th 371, review denied.
11 People v. Eckstrom (1986)187 Cal.App.3d 323, 231 Cal.Rptr. 664.
12 People v. Hampton (1981) 115 Cal.App.3d 515, 171 Cal.Rptr. 312.
13 CALCRIM 2352: Selling for the purpose of this instruction means exchanging the marijuana for money, services, or anything of value.
14 If the officer sees you sell marijuana, you will also most likely be charged with the sale of marijuana under California Health and Safety Code 11360.
15 People v. Harris, endnote 10.
16 People v. De La Torre (1968) 268 Cal.App.2d 122, 73 Cal.Rptr. 704.
17 One ounce contains 28.35 grams. In an article for High Times, Jon Gettman suggested that one ounce of marijuana yields approximately 28 joints, and that daily smokers of marijuana consume, on average, 4 joints per day (one ounce of marijuana per week). See How Much Pot Do Americans Consume?, High Times, Sept. 16, 2009.
18 If properly stored, marijuana keeps for months, or even years. High Times, How to Store Your Pot.
See also Taimapedia.org, How Long Does Weed Last? (“Weed can be stored for years without losing potency.”)
19 See e.g., People v. Windus (2008) 165 Cal.App.4th 634, 81 Cal.Rptr.3d 227, in which a medical marijuana patient's doctor testified that the defendant's condition called for possession of three to six pounds of marijuana.
20 People v. Peck (1996) 52 Cal.App.4th 351, 61 Cal.Rptr.2d 1.
21 People v. Windus, endnote 19 (“In order to present a CUA defense to the jury, a defendant must have obtained a recommendation to use medical marijuana prior to his or her arrest. However, that recommendation need not specify an approved dosage or amount of marijuana that may be possessed. A doctor's opinion that the amount in the defendant's possession meets his or her personal medical needs may be proffered at trial.”).
22 See e.g., People v. Foster (1967) 248 Cal.App.2d 715, 56 Cal.Rptr. 872.
23California Penal Code 29800 PC – California’s “felon with a firearm” law – prohibits narcotic drug addicts and people convicted of any felony or certain misdemeanors from owning or acquiring a gun.
24 CALCRIM 2352.
26 California Penal Code 1170(h)(1), endnote 2.
See also, Penal Code 1170(h)(3), providing that serious and violent offenders and people who have committed certain sex crimes must serve their sentence in the California state prison.
27 California Penal Code 1170(b) PC.
28 See same.
See also California Rules of Court, Rules 4.421 (aggravating criteria) and 4.423 (mitigating criteria).
29 See California Penal Code Sections 1000 and 1210-1210.1.
30 See 22 California Code of Regulations 1256-34.
31 See California Penal Code 1203 PC and California Rule of Court 4.14.
32 Simple possession under Health and Safety Code 11357 HS.
33 California Health and Safety Code 11362.5(d).
34 Under California Penal Code 11360, giving away not more than 28.5 grams of marijuana is a misdemeanor, punishable by a $100 fine.
35 See People v. Mijares (1971) 6 Cal.3d 415, 491 P.2d 1115 (holding that transitory possession for purpose of disposing of a drug is not criminal.).
37 However, possession for sale remains illegal even for people who entitled to medical marijuana. See e.g., People ex rel. Lungren v. Peron (1997) 70 Cal.Rptr.2d 20, 59 Cal.App.4th 1383, review denied.
38 California Health and Safety Code 11357 HS.
41 California Health and Safety Code 11358 HS.
42 California Health and Safety Code 11360 HS.
44 California Vehicle Code 23222(b) VC.
Notwithstanding the language of VC 23222(b), there appears to be no separate vehicle code section for driving in possession of concentrated cannabis.
46 See 21 U.S. Code Sections 811(b)(1) and 812(c), Schedule I (c)(10).
47 21 U.S. Code 841(b)(1)(D).
48 Gonzales v. Raich (2005) 545 U.S. 1.
49 See People v. Mitchell (2014) 170 Cal.Rptr.3d 825, 225 Cal.App.4th 1189, review filed. (holding that the Medical Marijuana Program Act (MMPA) is a defense only to California law, not to the federal law making marijuana cultivation a federal felony).
50 See Office of National Drug Policy, Answers to Frequently Asked Questions about Marijuana.
51 See e.g., Pedroza-Macias v. Holder, C.A.92011, 459 Fed.Appx. 589, 2011 WL 5357530, Unreported.