§ 11360 HS – Sale / Transportation of Marijuana in California

Although the recreational use of marijuana is now legal in California, the sale of marijuana is still tightly regulated.

Health and Safety Code § 11360 HS makes it a crime to sell, give away, import into the state, or transport for sale, any amount of marijuana or concentrated cannabis without being properly licensed.

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

In most cases, selling marijuana or transporting it for sale without all required licenses is a misdemeanor carrying up to:

• 6 months in jail and/or
• $500

Violating 11360 HS can be a felony carrying up to four years in jail if there are certain aggravating circumstances. Also, drug diversion (treatment) is not available as an alternative to jail, though you may be eligible for probation.¹

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

• 1. Elements of the Crime
• 2. Penalties
• 3. Medical Marijuana
• 4. Defenses
• 5. Related Crimes
• 6. Federal Law
• Additional Resources

1. Elements of the Crime

For you to be convicted in California of violating 11360 HS, prosecutors must prove beyond a reasonable doubt the following elements of the jury instructions:

1. You sold, furnished, administered, imported, gave away or transported for sale a usable quantity of marijuana,
2. You did not have a license to distribute marijuana in California, and
3. You knew of its presence and its nature as a controlled substance.²

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

“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

“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 from other forms of marijuana.

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

“Selling” Marijuana

For purposes of this section, “selling” means exchanging marijuana for money, services, or anything of value.⁶

This means that you do not necessarily need to receive money in order to be convicted of selling marijuana.⁷

You might be 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.

“Usable Amount”

A “usable amount” of marijuana means enough for you to use as a controlled substance — even if it is not enough for you to get high. Trace amounts of marijuana, or debris, is generally not considered a usable amount.⁸

“Administer”

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

“Transport”

Legally, you “transport” something if you carry or move it even a short distance, in order for it to be sold.¹⁰

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

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

Personal Possession of Marijuana is Not Required

You do not have to hold, touch or possesses marijuana yourself in order to violate 11360 HS. It is enough that you have the right to control the marijuana, either personally or through another person.¹⁴

Example: Arturo is a black-market (unlicensed) 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 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, who does not have a state license to sell marijuana.  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 friend. Erika is bringing some pot that she plans to sell to the friend (outside of California’s license and taxation system), and Danielle is aware of this.

During the drive to their friend’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 for sale. This alone may be sufficient to be liable for the crime.

2. Penalties

Violation of 11360 HS can be either a misdemeanor or a felony.

Misdemeanor

In most cases, selling, transporting for sale, or giving away marijuana without a state license is a misdemeanor in California law.¹⁸

A misdemeanor violation is punishable by:

• up to 6 months in county jail, and/or
• a maximum $500 fine.

Felony

Under California Health and Safety Code 11360(a), it is a felony to sell or transport marijuana without a license if you:

1. have 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 in California;
2. have two or more prior convictions for HS 11360 sale/transportation of marijuana;
3. knowingly sold, attempted to sell, or offered to sell or furnish marijuana to someone under 18; or
4. 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.¹⁹

Felony unlicensed sale/transport of marijuana in California is punishable by

• 2, 3 or 4 years in county jail.

In addition, a felony conviction carries collateral consequences such as a lifetime ban against owning a firearm. ²⁰

Jail Alternatives

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

You may be sentenced, however, to misdemeanor (summary) probation or 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.

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.

Misdemeanor probation is similar to felony probation, but it will not require monthly probation officer meetings. Instead, you will report to the judge who sentenced you for a “progress report” every so often.

If you violate any of the terms of your probation, the judge can send you to jail to serve out your sentence.²²

Resentencing or Redesignation Under Prop 64

Suppose you are serving a felony sentence for marijuana sale or transport under the old (pre-2016) version of HS 11360, and you would have been convicted of a misdemeanor under Prop 64. In that case, you may apply to a court to have your sentence reduced.

The court is supposed to presume that you meet the criteria for resentencing, and grant you resentencing unless that would pose an unreasonable risk to public safety.

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 violation of California’s marijuana sales law. Marijuana legalization means that you can apply to have your marijuana sales or transport conviction redesignated from a felony to a misdemeanor.

Example: Kayla is convicted of transporting marijuana for sale in 2014. She has no prior criminal record. At the time, this offense is a felony under HS 11360. She is sentenced to 3 years in jail.

In 2016, California voters pass Proposition 64. Under the new law, Kayla’s offense is a misdemeanor punishable by up to 6 months in jail. So with the help of her California marijuana legalization attorney, she files a petition for resentencing. The prosecutor does not oppose the petition, and it is granted.

Kayla is eligible for immediate release from jail.

3. Medical Marijuana

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. Its provisions are set forth in California Health and Safety code 11362.5 HS and subsequent sections.

Primary caregivers of people who use marijuana upon a physician’s recommendation are allowed to transport marijuana for the patient’s medical use even if they do not have a license to distribute marijuana in California.²³

Furthermore, they may give marijuana to such patients without violating 11360 HS.²⁴

4. Defenses

Because HS 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 Did Not 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 with plans to sell it on the marijuana black market. Long Beach police pull you over for speeding, search the trunk, find the weed, and charge you with transportation of marijuana.

However, because you did not know it was there, you should not be held liable.

Not Enough Evidence to Convict You

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

The Police Entrapped You

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.

Other Ways to Fight the Charge

Depending on your 11360 HS case, we may be able to argue that either:

• You were giving away the pot, not selling it,
• You were legally entitled to transport medical marijuana,
• You were disposing of the marijuana, and/or²⁵
• The marijuana was found during an illegal search.²⁶

5. Related Crimes

• Simple possession – Health and Safety Code 11357
• Cultivation – Health and Safety Code 11358
• Possession for Sale – Health and Safety Code 11359
• Selling marijuana to a minor – Health and Safety Code 11361
• Driving with marijuana – Vehicle Code 23222(b)

6. Federal Law

The Federal Controlled Substances Act – Title 21 USC

Under the federal “Controlled Substances Act” (“CSA”), marijuana is a Schedule 1 hallucinogenic drug. (However, there is a good chance it may be reclassified as a Schedule III drug soon.)²⁷

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 5 years in prison, and
• A fine of up to $250,000.²⁸

Even simple possession of marijuana is illegal under the CSA, which takes precedence over the laws of California.²⁹ So you could be following California law but still be violating federal law.³⁰

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 without a state license, or
• bring it over the state line, or
• have marijuana on federal property,

you are unlikely to be prosecuted for selling or transporting marijuana under federal law.³¹

Sale of Marijuana and Immigration

Selling marijuana is a “controlled substance offense” under the Immigration and Nationality Act. It does not matter whether you were convicted under California or federal law.³²

The immigration consequences of selling marijuana can include deportation if:

1. you are not an American citizen, and
2. you plead guilty to – or are found guilty of – a violation under 11360 HS.

Additional Resources

For more in-depth information, refer to these articles from California’s Department of Cannabis website:

• California’s cannabis laws – Overview of what is legal in the state.
• Medicinal cannabis – Guide to California’s medical marijuana laws.
• What’s legal – Simple overview of what recreational users can do.
• Responsible cannabis use – Tips for how to consume marijuana in a legal and healthy way.
• Search for a licensed business – List of licensed vendors.

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