California courts rarely punish pot-buying with more than a fine, so it's puzzling why they consider pot-selling such a serious felony. With good legal representation, however, people arrested and charged for sale of marijuana in California may be able to avoid a criminal conviction or have their cases reduced to simple marijuana possession for personal use.
On this page, our California Marijuana Defense Lawyers explain the definition, defenses, and penalties for California Health & Safety Code 11360, which prohibits the sale or transfer of marijuana in the state.
What is California Health & Safety Code 11360?
In California, it's a felony crime to sell, give away or transport marijuana. In fact, merely offering to sell, give away or transport marijuana is considered just as illegal. For example:
At a Ventura County bar, Jim offers John $10 for a dime bag of weed. John says yes and that he'll get him the weed later that night.
Here, a cop could arrest John for violating HS 11360 in Ventura County even though John didn't physically hand over any marijuana. John's offer to get Jim the weed at a later time is sufficient for the prosecution to press charges for sale of marijuana.
Most of the arrests made in California marijuana sales cases occur after an undercover cop asks to buy weed from a suspect. These undercover cops dress and talk like regular people, but they're often part of elaborately-planned "sting" or "controlled buy" operations. For example:
Sam, an undercover police officer in Riverside, walks though an alleyway known for drug sales. John stops Sam and asks if he'd like to buy some marijuana.
Here, Sam may arrest John for violating HS 11360 in Riverside because he offered to sell Sam marijuana. In this case, the fact the police "set up" John to sell Sam weed probably wouldn't be a winning defense to a Riverside charge for marijuana sales.
In addition, the police will even hide in a building or a car while keeping a lookout for possible drug deals. If they witness what they think is a hand-to-hand exchange of money for marijuana, they will then reveal themselves and question both the buyer and seller. For example:
Officer Paul is in Torrance watching John through a surveillance camera. Soon Jim comes up to John and hands him ten dollars. Then John hands Jim a baggie of weed. Officer Paul jumps out and searches John, who has several more baggies of marijuana in his back pocket. Then Jim admits to the officer that he just bought the weed from John.
Here, Officer Paul will arrest John for violating Health & Safety Code 11360 in Torrance, CA. And because John also possessed additional weed apparently with the intent to sell it, the Torrance police might also arrest him for Health & Safety Code 11359 -- Marijuana Possession for Sale.
And even though Jim may be technically guilty of California marijuana possession for buying the joint, the officer will probably let Jim go because he confessed to the sale.
Remember, money doesn't have to exchange hands for someone to be charged with HS 11360 in California. For example:
A police officer sees John put a bale of pot in his car trunk, which he drives from Los Angeles to Newport Beach. Then Paul sees John handing it to Jim.
Here, John might be charged on two counts for violating Health & safety Code 11360 in Newport Beach: 1) for transporting the pot, and 2) for giving it away to another person. California Health & Safety Code 11360 does not require a sale to take place for someone to be arrested for it.
How to fight a charge of marijuana sales
What defenses a good California criminal defense attorney will use to dismiss or reduce your charges are very specific to the facts of your Health & Safety Code 11360 HS case. In most circumstances, an attorney will try to question the credibility of the arresting police officer so that the judge or jury will doubt his account of the events. In addition, attorneys will claim lack of corroboration or maybe even entrapment:
Not enough corroboration
When attempting to prove that a marijuana sale took place, the California prosecution will try to produce physical evidence as well as have the arresting officer testify as to what happened. If there is no physical evidence, that weakens the state's case. For example:
In Los Angeles, John offers Jim to sell him a baggie of weed for $10 dollars next week. Jim agrees. No money or drugs are exchanged. Policeman Paul overhears this and moves in to arrest John for sale of marijuana in Los Angeles.
Here, because this is just an "offer to sell" case, there is no physical evidence of the HS 11360 violation: All the prosecution has to offer is Paul's eyewitness account of the conversation. If, as explained above, John's attorney can attack the officer's credibility and show holes in his retelling of events, then John has a good chance of getting his Los Angeles marijuana sales case dismissed.
It's extremely unfair that the police are allowed to trick unwitting marijuana sellers into a drug deal and arrest them afterwards. But one thing the police are not allowed to do is lure people into carrying out a crime that they most likely wouldn't have done but for the interference of law enforcement. For example:
Jim, who's never sold pot in his life, always keeps a joint in his wallet for when he gets migraines. Policeman Paul, who knows Jim carries pot, approaches him at a bar in San Bernardino. Undercover, Paul implores Jim to sell him his joint because he has migraines, too. After some hesitation, Jim agrees.
Here, Jim has a good argument for getting his marijuana sales case dismissed based on police entrapment. Jim's clean record and the fact he has only one joint on him suggest he is not a drug dealer and wouldn't have sold the joint had Paul not begged and played on John's sympathies.
What are the penalties, punishment and sentencing for Health & Safety Code 11360 in California?
Selling marijuana is a felony crime in California, punishable by two to four (2-4) years in California state prison. But if you were just transporting or giving away up to one ounce (1 oz.) of pot, California courts take a more lenient view and will impose only a $100 fine (plus court costs).
California Health & Safety Code 11361 demands longer prison-times for marijuana sales if the alleged buyer is a minor: Up to five (5) years in prison if the minor buyer was 14 years old or older; and up to seven (7) years in prison if the minor buyer was younger than 14 years old.
The penalties you may ultimately face may also vary from county to county. While San Bernardino and Los Angeles Counties tend to be less tough in their sentences for transportation or sale of marijuana, Orange County, Ventura County and Riverside County can be harsher.
To learn about Nevada marijuana sales laws, go to our page on Nevada marijuana sales laws.