Health & Safety Code Section 11360
The Law of Marijuana Sales in California

California Health and Safety Code 11360 HS prohibits

  • selling,
  • giving away,
  • importing into the state, or
  • transporting

any amount of marijuana.

Unlike simple possession of marijuana for personal use – which is a non-criminal infraction – violation of 11360 HS is a crime.

An exception exists for the transportation of marijuana by California medical marijuana users of pot for their personal use.  Primary caregivers for such patients may also transport marijuana and give it to their patients, in an amount reasonably related to the patient's medical needs.

For everyone else, violation of Health and Safety Code 11360 is either a misdemeanor or a felony depending on:

  • The type of marijuana,
  • The amount of marijuana, and
  • Whether sales or importing was involved.

Transport or gift of 28.5 grams (one ounce) or less of marijuana

Giving away or transporting 28.5 grams or less of marijuana (other than concentrated cannabis) is a California misdemeanor.

A misdemeanor violation of 11360 HS is punishable solely by:

  • a $100 fine (no jail time).

Transport or gift of more than 28.5 grams, or of any amount of concentrated cannabis

Giving away or transporting marijuana is a California felony if:

A felony violation of 11360 HS is punishable by

  • two, three or four years in county jail.

Additionally, there are serious collateral consequences to a California felony conviction.  One of these is that you must disclose the conviction if asked on an application for employment. You will also be banned for life from owning a firearm in California.

Sale or import of marijuana

It is a felony in California to sell, or import into the state, any usable amount of marijuana or concentrated cannabis. This is punishable by:

  • two, three or four years in county jail.
Marijuana -- Unlawful Sale / Transport / Transfer / Gift
Nature of Offense Crime Time Fine
Gift or transport of 28.5 grams or less (other than concentrated cannabis) misdemeanor none $100
Gift/transport of more than 28.5 grams or of any amount of concentrated cannabis felony 2, 3 or 4 years none
Sale/import of any amount of marijuana felony 2, 3 or 4 years none

Chart showing penalties for violating California Health and Safety Code 11360 HS

Jail alternatives for felony 11360 HS convictions

Drug diversion (treatment) is not available as an alternative to jail under California Health and Safety Code 11360. That alternative is available only when the charges are simple possession and/or cultivation for personal use.1

However, even if you are convicted of 11360 HS as a felony, you may be eligible for California felony (formal) probation.

If you are granted probation, you will serve at most one year of your sentence in jail. You may even serve no jail time at all.  But you will be subject to other conditions, which may include:

  • Drug testing,
  • Community service,
  • Meetings with a probation officer at least monthly, and/or
  • Searches of your person or property, with or without a warrant.

Defenses to charges under Health and Safety Code 11360 HS

There are many possible defenses to charges of under California Health and Safety Code 11360 HS.  Among them are:

  • You didn't know the pot was there,
  • You are entitled to use medical marijuana,
  • You are a primary caregiver who was giving pot to – or transporting it for -- a medical marijuana patient,
  • You were giving away the pot, not selling it,
  • The police engaged in entrapment, or
  • The marijuana was found during an illegal search and seizure.
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We are a firm whose California criminal defense lawyers include former prosecutors and cops.  We have a proven record of successfully defending clients accused of violating California’s marijuana laws.

To help you better understand California's laws on selling, transferring and transporting marijuana, our criminal defense attorneys discuss the following, below:

  1. Elements of the crime of Health and Safety Code 11360 HS
    1. The legal definition of “marijuana”
    2. The legal definition of “concentrated cannabis”
    3. The legal definition of “selling” marijuana
    4. The legal definition of “usable amount”
    5. The legal definition of “administer”
    6. The legal definition of “transport”
    7. Personal possession of the marijuana is not required
    8. Knowledge of the marijuana's presence and nature
  2. Penalties under California Health and Safety Code 11360
    1. Transporting or giving away 28.5 grams or less (other than concentrated cannabis)
    2. Transporting or giving away more than 28.5 grams of marijuana, or any amount of concentrated cannabis
    3. The sale or import of marijuana
    4. Jail alternatives
    5. Reduction to a lesser charge
  3. Exception for medical marijuana users and their primary caregivers
  4. Defenses to California Health and Safety Code 11360 HS
  5. Related offenses
    1. Simple possession - Health and Safety Code 11357
    2. Cultivation - Health and Safety Code 11358
    3. Possession for Sale – Health and Safety Code 11359
    4. Selling marijuana to a minor -- Health and Safety Code 11361
    5. Driving with marijuana – Vehicle Code 23222(b)
  6. Federal law
    1. The federal Controlled Substances Act – Title 21 USC
    2. Sale of marijuana and immigration

You may also find helpful information in our articles on: California Marijuana Laws Explained by Lawyers; Marijuana Possession for Personal Use; Cultivation of Marijuana; Possession of Marijuana for Sale; Concentrated Cannabis; DUI of Marijuana; Driving in Possession of Marijuana; How to Get a Medical Marijuana ID Card in California; How to Open a Medical Marijuana Dispensary; Primary Caregivers and Medical Marijuana; Possession of Drug Paraphernalia; and, California Drug Diversion.

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1. Elements of the crime of Health and Safety Code 11360 HS

Your are guilty of the crime of selling, transferring, importing or giving away marijuana, if:

  1. You sold, furnished, administered, imported, gave away or transported a usable quantity of marijuana, and
  2. You knew of its presence and its nature as a controlled substance.2

Let's take a closer look at some of these elements.

1.1 The legal definition of “marijuana”

California Health and Safety Code 11018 HS defines “marijuana” as all parts of the plant Cannabis sativa L., whether growing or not.

“Marijuana” includes:

  • 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.3

1.2 The legal definition of “concentrated cannabis”

California law defines “marijuana” to include marijuana resin.  Therefore, except where specified, “marijuana” includes concentrated cannabis (hashish).4

Certain parts of the law do, however, single out concentrated cannabis for separate treatment than other forms of marijuana.

Where “concentrated cannabis" is specifically identified, it means the separated resin, whether crude or purified, obtained from marijuana.5

1.3 The legal definition of “selling” marijuana

For purposes of California Health and Safety Code 11360, “selling” means exchanging marijuana for money, services, or anything of value.6

This means that you don't necessarily need to receive money in order to be convicted of selling marijuana.7

You might guilty of selling marijuana if you:

  • repay a loan with marijuana,
  • trade marijuana for other drugs,
  • give someone drugs in exchange for services, or
  • trade marijuana for something else of value, such as a guitar or Pokemon cards.

1.4 The legal definition of “usable amount”

A “usable amount” of marijuana means enough for someone to use as a controlled substance -- even if it isn't enough for that person to get high.  Trace amounts of marijuana, or debris, is generally not considered a usable amount.8

1.5 The legal definition of “administer”

You “administer” marijuana when you cause another person to inhale, ingest, or otherwise consume it.9

1.6 The legal definition of “transport”

Legally, a person “transports” something if he or she carries or moves it even a short distance.10

Transportation of marijuana may be made by any means, including:

  • motor vehicle,11
  • bicycle,12 or
  • walking.13

1.7 Personal possession of the marijuana is not required

You do not have to hold, touch or possesses marijuana yourself in order to commit the crime.  It is enough that you have the right to control the marijuana, either personally or through another person.14

Example: Arturo is a weed dealer but he pays people to do all the “dirty work.” Other people do the growing and selling for him. Arturo never touches or sees, let alone grows, the pot.  However, since he has the right to control the marijuana, Arturo sells pot through his workers.

You may be also be guilty under 11360 HS if you merely “aid and abet” the sale or transport of marijuana.15

Example -- aiding and abetting sale: Albert tells Bill he wants to buy some marijuana. Bill introduces Albert to Carl.  Albert exchanges cash directly with Carl for marijuana.  But since Bill introduced Albert to Carl for the purpose of buying pot, he aided and abetted a sale -- even though Bill never touched or possessed the pot himself.16

Example -- aiding and abetting transport: Danielle drives herself and her sister, Erika, to visit their mother. Erika is bringing her mother pot and Danielle is aware of this.

During the drive to their mother's house, Danielle makes an illegal U-turn. When a cop pulls her over, he sees the pot on the back seat.17 He arrests both Danielle and Erika for unlawfully transporting pot.  Even though Danielle never touched the pot, she has aided and abetted its transport.  This alone may be sufficient to be liable for the crime.

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2. Penalties under California Health and Safety Code 11360

Violation of California Health and Safety Code 11360 can be either a misdemeanor or a felony.  Which you are charged with depends on three factors:

  • The type of marijuana,
  • The amount of marijuana, and
  • Whether sale or import was involved.

2.1 Transporting or giving away 28.5 grams or less (other than concentrated cannabis)

California Health and Safety Code 11360(b) makes it a misdemeanor to:

  • give away,
  • offer to give away,
  • transport,
  • offer to transport, or
  • attempt to transport…

28.5 grams or less of marijuana (other than concentrated cannabis).18

A misdemeanor violation of HS 11360 is punishable by:

  • a $100 fine

There is no jail time for violating 11360(b) HS.

2.2 Transporting or giving away more than 28.5 grams of marijuana, or any amount of concentrated cannabis

Under California Health and Safety Code 11360(a), it is a felony to:

  • give away,
  • offer to give away,
  • transport,
  • offer to transport, or
  • attempt to transport…

more than 28.5 grams of marijuana, or any amount of concentrated cannabis.

It is not necessary that you knew you had more than 28.5 grams of marijuana.  If you knew of the marijuana's presence and its nature as a controlled substance, it is enough.19

Giving away or transporting more than 28.5 grams of marijuana or any amount of concentrated cannabis is punishable by:

  • two, three or four years in county jail.

In addition, conviction of a California felony carries serious collateral consequences.  Among these are:

  • the obligation to disclose the conviction if asked on a job application, and
  • a lifetime ban against owning a firearm in California.

2.3 The sale or import of marijuana

Under California Health and Safety Code 11360(a), it is a felony violation to:

  • import into California,
  • sell,
  • furnish, or
  • administer…

any amount of any type of marijuana (including concentrated cannabis).  It is also a felony to offer or attempt to do any of these things.20

The penalty for selling, furnishing, administering or furnishing marijuana is:

  • two, three or four years in county jail.

2.4 Jail alternatives

Unfortunately, you are not eligible for drug diversion (treatment) as an alternative to jail time under HS 11360. Diversion is available only for simple possession and/or cultivation for personal use.

You may be sentenced, however, to California felony (formal) probation for all or part of your sentence.21 If you are sentenced to probation, you will serve no more than one year of your sentence in jail.

Felony probation typically lasts between three and five years. During this time, you will be subject to certain restrictions and conditions.  These can include:

  • Refraining from using drugs,
  • Drug testing,
  • Community service,
  • Counseling,
  • Meetings with a probation officer (usually monthly), and/or
  • Searches of your person or property, either with or without a warrant.

If you violate any of the terms of your probation, the judge can send you to jail to serve out your sentence.

2.5 Reduction to a lesser charge

Sometimes, an experienced California criminal defense attorney can get HS 11360 charges reduced to simple possession.  The unlawful simple possession of marijuana (other than concentrated cannabis) is not a felony.22

Benefits of a charge of simple possession often include:

  • No (or shorter) jail time,
  • No need to disclose conviction on a job application (in some cases),
  • Possibility of drug diversion instead of jail time, and
  • If charged as a misdemeanor, misdemeanor (summary) probation rather than formal probation.
  • If reduced to simple possession of less than 28.5 grams, it's not a crime at all, but rather a non-criminal infraction

3. Exception for medical marijuana users and their primary caregivers

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Medical marijuana is legal under California's Compassionate Use Act of 1996 (the “CUA”).

The CUA was passed into law by voter approval of Proposition 215.  It's provisions are set forth in California Health and Safety code 11362.5 HS and subsequent sections.

The CUA carves out a limited exception to California Health and Safety Code 11360.  People who use marijuana upon a physician's recommendation are not criminally liable for transporting a reasonable quantity of marijuana for their own personal medical use.23

Primary caregivers of such patients are also allowed to transport marijuana for the patient's medical use.  Furthermore, they may give marijuana to such patients without violating Health and Safety Code 11360.24

4. Defenses to California Health and Safety Code 11360 HS

Because Health and Safety Code 11360 covers so many offenses, there are numerous defenses to the various charges. An experienced California criminal defense attorney can help you decide which apply to you.

Some of the more common defenses include:

  • You didn't know the pot was there

Example: You and your boyfriend both drive the same car. Unbeknownst to you, he is keeping a pound of weed in the trunk. Long Beach police pull you over for speeding, search the trunk, find the weed, and charge you with transportation of marijuana.

But because you didn't know it was there, you should not be held liable.

  • Insufficient police evidence

Example: LAPD sets up an observation post at Macarthur Park and claim that they observe you taking cash from someone and handing him a bag of pot. They move in and arrest you for sales. But at the preliminary hearing, the defense lawyer shows that the cops don't have any pictures of the transaction and their view was obstructed by passers-by. The judge dismisses the charges for insufficient evidence.

Collage
Bidens frondosa (l.) and Cannabis sativa L. (r.)
  • The police engaged in illegal entrapment

Example: An undercover police officer finds you from a Craigslist ad. He calls and offers you a large sum of cash to sell him 5 kilos of marijuana. You meet him at the park, sell him the weed, and get arrested for sales.

The officer may have violated California’s entrapment laws. If so, the defense lawyer can make a motion to have the entire case dismissed.

  • You were giving away the pot, not selling it
  • You were legally entitled to transport medical marijuana
  • You gave away less than 28.5 grams of marijuana
  • You were disposing of the marijuana25
  • The marijuana was found during an illegal search26

5. Related offenses

5.1 Simple possession - Health and Safety Code 11357

Simple possession of not more than 28.5 grams of marijuana for personal use (other than concentrated cannabis) is not a crime.  Under California Health and Safety Code 11357, it is an infraction -- like a traffic ticket.  It is punishable by a $100 fine.27

Possession of more than 28.5 grams of marijuana (other than concentrated cannabis) is a misdemeanor.  It is punishable by:

  • up to six months in prison, and/or
  • a $500 fine.28

Possession of concentrated cannabis in any amount is a felony. It is punishable by 16 months, or two or three years in jail.29

Medical marijuana users and primary caregivers are exempt from prosecution under 11357 HS.  They are permitted to possess enough marijuana for the patient's reasonable, medical use.30

5.2 Cultivation - Health and Safety Code 11358

California Health and Safety Code 11358 makes it unlawful for anyone other a medical marijuana user or primary caregiver to:

  • plant,
  • cultivate,
  • harvest,
  • dry, or
  • process…

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.31

5.3 Possession for Sale – Health and Safety Code 11359

Possession of any amount or type of marijuana with the intent to sell it is a felony under California Health and Safety Code 11359.

If you possess marijuana – and the prosecutor proves your intent was to sell it -- you face 16 months or two or three years in jail.

5.4 Selling marijuana to a minor – Health and Safety Code 11361

California Health and Safety Code 11361 HS makes it a felony for anyone 18 years or older to sell marijuana to a minor.  It also makes it a felony to use a minor to unlawfully:

  • transport,
  • carry,
  • sell,
  • give away,
  • furnish,
  • administer,
  • prepare for sale, or
  • peddle…

any marijuana.32

If the minor involved is under 14 years of age, punishment is three, five or seven years in California state prison.33

If the minor is over 14, but less than 18, punishment is three, four or five years in state prison.34

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5.5 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 related to the law against driving with an open container of alcohol in your vehicle.35

Driving with marijuana is an infraction.  It can be punished by up to a $100 fine.36

This punishment is separate from -- and in addition to -- the penalty for any marijuana-based offenses under the Health and Safety Code.

6. Federal law

6.1 The federal Controlled Substances Act – Title 21 USC

Title 21 of the United States Code is the federal “Controlled Substances Act” (“CSA”). Under the CSA, marijuana is a Schedule 1 hallucinogenic drug. This means the government believes it has a high potential for abuse and no currently accepted medical use.37

21 USC 841 (a)(1) prohibits the sale of marijuana. 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 $250,000.38

The CSA takes precedence over the laws of California.39 Technically, therefore, when you sell, transport, or give away marijuana, you violate federal as well as California law, even if you qualify as a medical marijuana user or primary caregiver.40

As a practical matter, however, only large-scale drug traffickers are typically prosecuted under federal law. Unless you transport or sell a large quantity of marijuana, or bring it over the state line, you are unlikely to be prosecuted for selling or transporting marijuana under federal law.41

However, federal rather than California law applies on federally owned property.  If you are caught selling or transporting marijuana on federal property, therefore, you face potential charges under the federal CSA.

Federal property includes:

  • post offices,
  • airports,
  • federal courts,
  • federal buildings such as the W. Los Angeles Federal Building on Wilshire Blvd., and
  • national parks, such as Yosemite.

6.2 Sale of marijuana and immigration

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Selling marijuana is an “aggravated felony” for purposes of the Immigration and Nationality Act.  It doesn't matter whether you were convicted under California or federal law.42

The immigration consequences of a criminal conviction for selling marijuana can include deportation if:

  1. you are an undocumented alien, and
  2. you plead guilty to – or are found guilty of – a felony violation under California Health and Safety Code 11360(a).

Call us for help...

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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 sales of marijuana and Nevada law re trafficking 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.

Legal References:

1 See California Penal Code Sections 1000 and 1210-1210.1 PC.

2 See, e.g., Judicial Council of California Criminal Jury Instructions (CALCRIM) 2350. Sale, Furnishing, etc., of Marijuana (Health & Saf. Code, § 11360(a)):

The defendant is charged [in Count ] with (selling/furnishing/administering/importing) marijuana, a controlled substance [in violation of Health and Safety Code section 11360(a)].

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant (sold/furnished/administered/imported into California) a controlled substance;
  2. The defendant knew of its presence;
  3. The defendant knew of the substance's nature or character as a controlled substance;
    [AND]
  4. The controlled substance was marijuana(;/.)
    [AND]
    <Give element 5 when instructing on usable amount; see Bench Notes.>
  5. The controlled substance was in a usable amount.]

See also CALCRIM 2360. Transporting or Giving Away Marijuana: Not More Than28.5 Grams—Misdemeanor (Health & Saf. Code, § 11360(b)):

The defendant is charged [in Count ] with (giving away/transporting) 28.5 grams or less of marijuana, a controlled substance [in violation of Health and Safety Code section 11360(b)].

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant [unlawfully] (gave away/transported) a controlled substance;
  2. The defendant knew of its presence;
  3. The defendant knew of the substance's nature or character as a controlled substance;
  4. The controlled substance was marijuana;
    AND
  5. The marijuana was in a usable amount but not more than 28.5 grams in weight.

See also CALCRIM 2361. Transporting or Giving Away Marijuana: More Than 28.5Grams (Health & Saf. Code, § 11360(a)).

…5. The marijuana possessed by the defendant weighed more than 28.5 grams.

3 California Health and Safety Code 11018 HS: "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.

4 Other names for concentrated cannabis include marijuana resin, hash oil, honey oil, rosin,  wax,  butane hash oil (BHO), errl, earwax, budder, shatter, full melt, and rosin.  See, e.g., History of Cannabis Extractions.

5 California Health and Safety Code 11006.5 HS.

6 CALCRIM 2352: Selling for the purpose of this instruction means exchanging the marijuana for money, services, or anything of value.

7 See, e.g., People v. Lazenby (1992) 6 Cal. App. 4th 1842, 8 Cal. Rptr. 2d 541.

8 E.g., CALCRIM 2350 and 2360:  A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.

9 See CALCRIM 2350: [A person administers a substance if he or she applies it directly to thebody of another person by injection, or by any other means, or causes the other person to inhale, ingest, or otherwise consume the substance.]

10 See CALCRIM 2361: [A person transports something if he or she carries or moves it from one location to another, even if the distance is short.]

See also People v. Emmal (1998) 68 Cal. App. 4th 1313, 80 Cal. Rptr. 2d 907 (“[T]o satisfy the element of "transportation"… the evidence need only show that the vehicle was moved while under the defendant's control.”).

11 Same.

12 People v. LaCross (2001) 91 Cal. App. 4th 182, 109 Cal. Rptr. 2d 802 (“The term "transport" includes moving illegal drugs from one place to another, even by bicycle.”).

13 People v. Ormiston (2003) 105 Cal.App.4th 676, 129 Cal.Rptr.2d 567.

14 See, e.g., CALCRIM 2350: [A person does not have to actually hold or touch something to (sell/furnish/administer/import) it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]

See also People v. Rogers (1971) 5 Cal. 3d 129, 95 Cal.Rptr. 601 (“Although possession is commonly a circumstance tending to prove transportation… it is not an essential element of that offense and one may "transport" marijuana or other drugs even though they are in the exclusive possession of another.”).

15 Same.  (“[O]ne having the requisite knowledge may be found guilty of illegal transportation if he also has joint or exclusive possession of the drug in a moving vehicle. [citations] Possession may be either actual or constructive; the latter is established by showing that defendant maintained some control or right to control over contraband in the physical possession of another. [citations]”).

16 Facts based on People v. Francis (1969) 71 Cal.2d 66, 75 Cal. Rptr. 199.

17 Facts based on People v. Rogers, endnote 14.

18 California Health and Safety Code 11360(b): Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100). In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.

19 People v. Busch (“Whether [defendant] transported more or less than 28.5 grams of marijuana does not go to whether he violated section 11360, but merely determines how much he will be punished.”).

20 Same.

Note that there is no case law distinguishing “furnish” from “give away.”  But see California Health and Safety Code 11016: “Furnish” has the same meaning as provided in Section 4048.5 of the Business and Professions Code [a section which has been repealed].

21 California Penal code 1203(a): As used in this code, "probation" means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer…

22 See California Health and Safety Code 11357 HS.

23 California Health and Safety Code 11362.765(a) and (b).

24 See same.

See also People v. Wayman (2010) 116 Cal.Rptr.3d 833, 189 Cal.App.4th 215, review denied. (The amount of marijuana involved, as well as the method, timing, and distance of the transportation, are relevant factors when determining whether the transportation of medical marijuana is lawful under the Compassionate Use Act (CUA)…).

See also California Health and Safety Code 11362.5(e): For the purposes of this section, "primary caregiver" means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.

25 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).

26The Fourth Amendment to the U.S. Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

27 California Health and Safety Code 11357 HS.

28 Same.

29 Same.

30 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.

31 California Health and Safety Code 11358 HS: Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

32 California Health and Safety Code 11361 HS.

33 California Health and Safety Code 11361(a).

34 California Health and Safety Code 11361(b).

35 California Vehicle Code 23222(a) VC.

36 California Vehicle Code 23222(b) VC: Except as authorized by law, every person who possesses, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, not more than one avoirdupois ounce of marijuana, other than concentrated cannabis as defined by Section 11006.5 of the Health and Safety Code, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).

Notwithstanding the language of VC 23222(b), there appears to be no separate vehicle code section for driving in possession of concentrated cannabis.

37 See 21 U.S. Code Sections 811(b)(1) and 812(c), Schedule I (c)(10).

38 21 U.S. Code 841(b)(1)(D).

39 Article VI, Paragraph 2 of the United States Constitution (the “Supremacy Clause”).

See also Gonzales v. Raich (2005) 545 U.S. 1.

40 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).

41 See Office of National Drug Policy, Answers to Frequently Asked Questions about Marijuana.

42 See e.g., Moncrieffe v. Holder (2013), U.S. Supreme Court No. 11–702. (holding that the test is whether crime is necessarily punishable as a felony under state law).

See also Pedroza-Macias v. Holder, C.A.92011, 459 Fed.Appx. 589, 2011 WL 5357530, Unreported (Mexican alien's prior California conviction for possession of marijuana for sale was an aggravated felony for purposes of removal under Immigration and Nationality Act (INA), since conviction of offense would have been punishable as felony under federal drug laws.).

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