On November 8, 2016, California voters approved Proposition 64, also known as the Adult Use of Marijuana Act. But Health and Safety Code 11359 HS possession of marijuana for sale can still lead to criminal penalties even though marijuana is now legal.
Prop 64 makes it legal for people 21 and older to possess and use small amounts of marijuana (also known as "pot" or "weed"). California's marijuana legalization law also allows the sale of marijuana by businesses licensed to do so.
However, Proposition 64 retained criminal penalties for people who sell or transport marijuana without a license to do so (Health and Safety Code 11360 HS). Similar, it remains a crime to possess marijuana with the intent to sell it without a license (i.e., on the "black market").
Consequences of possessing marijuana for sale
HS 11359 possessing marijuana with intent to sell it on the black market is a California 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).
But possession of marijuana with intent to sell it without a license is a California felony for some defendants: those who have serious violent crimes or sex crimes on their record, repeat marijuana offenders, and defendants who intended to sell marijuana illegally to minors.
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.
However, it is sometimes possible to get the charged reduced to simple possession of more than 28.5 grams of marijuana, a misdemeanor offense 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 without the required government licenses to do so.
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
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 large amounts of marijuana for personal use can easily find themselves unjustly charged with intending to sell it on the black market.
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:
- Federal law
- Can I be resentenced under Prop 64 if I was convicted of marijuana possession for sale under the old law?
1. Elements of the crime of California Health and Safety Code 11359 HS
California Health and Safety Code 11359 HS makes it a crime to possess marijuana for sale "except as provided by law."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 ILLEGALLY (that is, without the required state and local marijuana sales licenses),
- 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 on the black market. 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 illegally
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.
Since recreational marijuana was legalized in California in 2016, possession of marijuana for sale is only a crime if you intended to sell the pot illegally--that is, outside of the licensing scheme for legal marijuana sales/on the black market.
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 where black market marijuana or other illegal 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 without a license.
- 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 to your friends (who are under 18). 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 Misdemeanor penalties
Possession of marijuana for sale without a license in California is a misdemeanor for most defendants. The penalty is a county jail sentence of up to six (6) months, and/or a fine of up to five hundred dollars ($500).26
However, California marijuana law after Prop 64 imposes felony penalties for HS 11359 if any of the following is true:
- The defendant has 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;
- The defendant has two (2) or more prior misdemeanor convictions for marijuana possession for sale; or
- The defendant possessed marijuana for sale in connection with a knowing sale or attempted sale to someone under 18.27
In any of the above scenarios, an HS 11359 defendant will face sixteen (16) months, two (2) years or three (3) years in county jail.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.29
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.30 For this reason, it can be helpful to try to negotiate the charges down to simple possession (even though both simple possession and possession for sale are misdemeanors under Prop 64).
But you will be subject to certain restrictions. These may include:
- 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 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 on the black market,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 makes it legal for people over 21 to possess up to 28.5 grams of marijuana or up to 4 grams of concentrated cannabis.37
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.38
Possession of any amount of marijuana by people under 21 is an infraction.39
4.2 Cultivation - Health and Safety Code 11358
California Health and Safety Code 11358, as amended by Proposition 64, provides that adults who are 21 or older may plant, cultivate, harvest, dry or process up to six (6) living marijuana plants without breaking the law.
But cultivating more than six marijuana plants is a crime. For most adult defendants, it is a misdemeanor that carries up to six (6) months in county jail and/or a fine of up to five hundred dollars ($500). But it is a felony for:
- People with serious violent felonies on their record;
- Registered sex offenders;
- Defendants who have two (2) or more prior convictions for cultivating more than six marijuana plants; and
- Defendants who violate certain California environmental laws in their marijuana cultivation activities.40
4.3 Sale – Health and Safety Code 11360
Under Prop 64, you can only sell marijuana if you have obtained a license to do so.
If you don't have a license, then selling pot--or transporting it in order to sell it--is a misdemeanor for most defendants. The penalties include up to six (6) months in county jail, and/or a fine of up to one thousand dollars ($1,000).41
And marijuana sale/transportation for sale without a license is a felony for the following defendants:
- Defendants with violent felonies or sex crimes on their record;
- Defendants who have two (2) or more prior convictions for HS 11360 sale/transportation of marijuana;
- Defendants who knowingly sold, attempted to sell, or offered to sell or furnish marijuana to someone under 18; and
- Defendants who imported or attempted or offered to import into California, or transported or attempted/offered to transport out of California for sale, more than 28.5 grams of marijuana or more than four grams of concentrated cannabis.42
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.43
Driving with marijuana is an infraction. It can be punished by up to a $100 fine.44
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.45
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 $250,000.46
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.47 Technically, therefore, you violate federal as well as California law when you possess marijuana for sale.48
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.49
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.50
6. Can I be resentenced under Prop 64 if I was convicted of marijuana possession for sale under the old law?
Proposition 64, passed in 2016, does provide for resentencing for people convicted under California's previous marijuana laws, including HS 11359, who would serve a lighter sentence under the marijuana legalization regime.
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 opposes your petition and proves by "clear and convincing evidence" that you don't meet the criteria. The judge is then supposed to resentence you unless s/he determines that doing so would pose an unreasonable risk of danger to public safety.51
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.52
Here are some examples of how resentencing after marijuana legalization might work:
Example: Carlos is convicted of possession of marijuana for sale, a felony, in 2009. He is sentenced to two years in jail but is released earlier. By 2016, when Prop 64 is passed, he has completed his sentence.
HS 11359 possession of marijuana for sale is now a misdemeanor for defendants like Carlos. Even though he has served his sentence, Carlos applies for redesignation of his offense to a misdemeanor. This redesignation is granted. As a result, Carlos no longer has a criminal record that includes a felony.
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 11359 HS (as amended by Proposition 64).
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 11359 HS (as amended by Proposition 64), endnote 2 above.
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.
28 Same. See also Penal Code 1170(h) PC.
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 California Health and Safety Code 11357 HS.
40 California Health and Safety Code 11358 HS.
41 California Health and Safety Code 11360 HS.
43 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.
45 See 21 U.S. Code Sections 811(b)(1) and 812(c), Schedule I (c)(10).
46 21 U.S. Code 841(b)(1)(D).
47 Gonzales v. Raich (2005) 545 U.S. 1.
48 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).
49 See Office of National Drug Policy, Answers to Frequently Asked Questions about Marijuana.
50 See e.g., Pedroza-Macias v. Holder, C.A.92011, 459 Fed.Appx. 589, 2011 WL 5357530, Unreported.
51 See full text of Proposition 64 (Adult Use of Marijuana Act), new Health & Safety Code section 11361.8 HS.