It's very common in Southern California to be falsely accused of violating California Health and Safety Code 11359, which makes it a felony crime to possess marijuana with the intent to sell it. Police often mistake innocent evidence or simple marijuana possession for a marijuana sale waiting to happen.
Even more unfair is that such an easily mistakable crime carries such harsh penalties: Marijuana possession for the purpose of sale in California may be punishable by up to three (3) years in prison and a $10,000 fine. On the bright side, however, our Southern California Marijuana Attorneys have been very successful in fighting charges of marijuana possession for sale precisely because the law is so vague.
On this page, you will learn all about HS 11359 and what prosecutors look for when seeking a conviction for possession of marijuana for the purpose of sale in California.
What is Marijuana Possession for Purpose of Sale in California?
The California felony crime of marijuana possession for the purpose of sale is just what it sounds like: Knowingly possessing pot with the intention of selling it. It's a more serious crime than Health & Safety Code 11357b marijuana possession for personal use, a misdemeanor that rarely results in jail time.
Whether someone has an "intent to sell" is usually a matter of opinion and is difficult to show. Therefore, California police look for various signs that may suggest an "intent to sell." Below are six examples of these supposed "signs of intent" (also called "indicia of sales" in California law):
1) The amount of marijuana seized is larger than a couple of ounces
For example, the Long Beach police are called into an apartment complex after someone complains of marijuana smoke. They go into John's room and see that his top nightstand drawer contains a pound of pot. Had they found only one joint, the Long Beach police would probably arrest John just for simple possession of marijuana. But because John has more pot than one person might normally use in a short time, the police will likely assume John intends to sell it and will therefore arrest him for marijuana possession for sale.
Obviously, this is a silly argument. John could be a recreational user who prefers to "stock up" on pot rather than repeatedly making small purchases of pot whenever he feels like smoking. Health & Safety Code 11359 says nothing about quantity, and it shouldn't be a factor in prosecuting a marijuana possession with intent case in California.
2) The marijuana is packaged in several small containers or baggies
For example, the police in Riverside are conducting a routine traffic stop on John's car when they spot five one-ounce baggies of marijuana in his back seat. Had all the pot been heaped into one container, the police might conclude that John possessed it for personal use. But the Riverside police will construe separate, evenly-measured baggies of pot as "inventory" and will probably arrest John for Health & Safety Code 11359 possession for sale.
Again, we strongly disagree with the officer's assumptions. Perhaps John simply purchased the weed for personal use, but it was already separately packaged when he got it from the dealer or the dispensary (which would at most land him a charge of simple marijuana possession). Or maybe John packages separate baggies of marijuana to be smoked one a day. Either way, HS 11359 doesn't specify anything about how marijuana should be presented when it's sold, and the police shouldn't draw conclusions based purely on presentation.
3) The suspect is found in a place where marijuana deals are usually carried out
For example, the police see John on a Torrance street corner where several marijuana sales have taken place in the past, and he has several baggies of weed in his back pocket. Because of John's location, the Torrance Police may deduce that John is there to sell his stash and arrest him for possession of marijuana for the purpose of sale.
It's very unfair for the prosecution to use a person's location against him in a marijuana possession for sale case. John could have been there to buy more pot rather than sell it, or just to socialize with fellow recreational users.
4) The pot is found with no paraphernalia, and the suspect isn't high
For example, the police find John carrying a baggie of pot to a party in Los Angeles. He doesn't have any papers or other paraphernalia on him, and there's no marijuana in his system. Since John has no device to smoke the pot and he's totally sober, the LAPD then presume that John's only purpose in possessing the pot is to sell it, rather than use it himself. So they arrest him under Health & Safety Code 11359.
This argument makes zero sense. You would think that being caught with paraphernalia or being caught while high would make you seem more guilty of a serious crime. But California law enforcement views the presence of paraphernalia or being high as a sign that you're merely a recreational user rather than a seller. Common sense dictates that recreational users are not high all the time and don't necessarily have marijuana paraphernalia on them all the time.
5) The suspect is found with a lot of cash, especially in small denominations, or with a weapon.
For example, San Bernardino cops do a drug raid on John's house. In addition to finding weed, they recover a lot of cash (mostly in small bills) as well as a gun. The police believe that the small bills came from numerous small marijuana sales, and that John keeps the gun as protection in case a drug deal goes bad. Therefore, instead of arresting John for possession of marijuana for personal use, he's charged with possession of marijuana with intent to sell in San Bernardino.
It's unfortunate that saving our cash or exercising our constitutional right to bear arms can now contribute to our being arrested for HS 11359. A good criminal defense attorney would demonstrate ways unrelated to marijuana in which John acquires the cash or uses the gun.
6) The police witnesses a transaction where marijuana and money is exchanged
For example, a cop is hiding at an "observation post" in Orange County, where he watches John give a baggie of pot to Jim, who then gives John a wad of cash. The cop moves in and arrests John for possession of marijuana for the purpose of sale.
Although eyewitness accounts of supposed marijuana sales are trickier to disprove in a California court, especially if the suspect was found with a pay/owe sheet, these cases may still be win-able. Perhaps John and Jim met so that Jim could pay back John on a loan, and John just gave Jim the pot as a friendly gesture. Or perhaps John was returning the pot he'd bought from Jim.
A charge for marijuana possession for sale in California may seem daunting, but there's still hope....
Our experienced California criminal defense attorneys will do everything we can to get your HS 11359 case dismissed by showing that the police acted illegally when they searched you, or that you had no intent to sell, or that there was no marijuana possession, or by a variety of other strategies that proved successful in the past.
If you choose to take your case to trial, we will fight for you every step of the way. If you want to explore getting your charge reduced to simple marijuana possession or less, we will negotiate aggressively with prosecutors to get you the best deal possible.
To learn about Nevada marijuana possession for sale laws, go to our page on Nevada marijuana possession for sale laws.