On January 1, 2018, the sale of recreational marijuana became legal in California for businesses licensed to sell marijuana. The legalization resulted from voter passage in November 2016 of Proposition 64, also known as the Adult Use of Marijuana Act.
However, California Health and Safety Code 11360 still prohibits
- giving away,
- importing into the state, or
- transporting for sale
any amount of marijuana or concentrated cannabis (hashish) WITHOUT a state license (and any required local licenses).
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.
Misdemeanor penalties for unlawful sale or transport of marijuana
Under HS 11360 as amended by Proposition 64, selling marijuana or transporting it for sale without all required licenses is a California misdemeanor for most defendants.
The misdemeanor penalties for sale/transport of marijuana are up to six (6) months in county jail, and/or a fine of up to five hundred dollars ($500).
Felony penalties for unlawful sale or transport of marijuana
However, illegal sale or transportation of marijuana is a California felony if any of the following is true:
- You 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;
- You have two (2) or more prior convictions for HS 11360 sale/transportation of marijuana;
- You knowingly sold, attempted to sell, or offered to sell or furnish marijuana to someone under 18; or
- You 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.
A felony violation of 11360 HS is punishable by
- two, three or four years in county jail; and/or
- a fine of up to ten thousand dollars ($10,000).
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.
Jail alternatives for 11360 HS convictions
Drug diversion (treatment) is not available as an alternative to jail under California Health and Safety Code 11360.
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,
- Regular progress reports with the court (for misdemeanor defendants), or meetings with a probation officer at least monthly (for felony defendants), and/or
- Searches of your person or property, with or without a warrant.
Defenses to 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 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,
- You were transporting the pot, but not for sale,
- The police engaged in entrapment, or
- The marijuana was found during an illegal search and seizure.
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
- 1.1. The legal definition of “marijuana”
- 1.2. The legal definition of “concentrated cannabis”
- 1.3. The legal definition of “selling” marijuana
- 1.4. The legal definition of “usable amount”
- 1.5. The legal definition of “administer”
- 1.6. The legal definition of “transport”
- 1.7. Personal possession of the marijuana is not required
- 2. Penalties under California Health and Safety Code 11360
- 3. Exception for medical marijuana users and their primary caregivers
- 4. Defenses to California Health and Safety Code 11360 HS
- 5. Related offenses
- 6. Federal law
You commit the crime of selling, transferring, importing or giving away marijuana, if:
- You sold, furnished, administered, imported, gave away or transported for sale a usable quantity of marijuana,
- You did not have a license to distribute marijuana in California, and
- You knew of its presence and its nature as a controlled substance.2
Let's take a closer look at some of these elements.
California Health and Safety Code 11018 HS 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.3
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
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.
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
You “administer” marijuana when you cause another person to inhale, ingest, or otherwise consume it.9
Legally, a person “transports” something if he or she carries or moves 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
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 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.
Violation of California Health and Safety Code 11360 can be either a misdemeanor or a felony.
For most defendants, selling, transporting for sale, or giving away marijuana without a state license is a misdemeanor in California law.18
A misdemeanor violation of HS 11360 is punishable by:
- up to six (6) months in county jail, and/or
- a maximum $500 fine.
Under California Health and Safety Code 11360(a), it is a felony to sell or transport marijuana without a license for the following defendants:
- Defendants who 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 them to register as a sex offender in California;
- 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.19
Felony unlicensed sale/transport of marijuana in California 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. 20
Unfortunately, you are not eligible for drug diversion (treatment) as an alternative to jail time under HS 11360. Diversion is available only for unlawful simple possession and/or cultivation for personal use.
You may be sentenced, however, to California 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.
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,
- 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
If 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, 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.
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 Health and Safety Code 11360.24
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 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.
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 (not a licensed marijuana seller) 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.
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 were disposing of the marijuana25
- The marijuana was found during an illegal search26
For adults 21 and older, simple possession of not more than 28.5 grams of marijuana for personal use or not more than eight grams of concentrated cannabis is not a crime.27
Possession of more than 28.5 grams of marijuana (or more than eight grams concentrated cannabis) is a misdemeanor. It is punishable by:
- up to six months in prison, and/or
- a $500 fine.28
Possession of any amount of marijuana or concentrated cannabis is an infraction (like a traffic ticket) for people under 21.29
Medical marijuana users and primary caregivers are exempt from the quantity restrictions of 11357 HS. They are permitted to possess enough marijuana for the patient's reasonable, medical use.30
California Health and Safety Code 11358 allows California residents who are 21 and older to
- dry, or
up to six (6) marijuana plants. Medical marijuana users and primary caregivers may cultivate more than that in keeping with their medical needs.
Cultivating more than 6 marijuana plants is a misdemeanor with a maximum 6-month jail sentence for most defendants. But it can be charged as a felony for registered sex offenders, defendants with serious violent felony priors, repeat offenders, and defendants who violate environmental regulations in their cultivation activities. 31
Possession of marijuana with the intent to sell it without a California marijuana sales license is a misdemeanor (in most cases) under California Health and Safety Code 11359.
And possession of marijuana for unlicensed sale is a felony for repeat offenders, registered sex offenders, defendants with serious violent felony priors, and defendants who intended to sell the marijuana to minors.
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:
- give away,
- prepare for sale, or
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
California Vehicle Code 23222(b) VC prohibits driving while in possession of marijuana in an open container. 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.
Note that it is perfectly fine under California law to drive your legal marijuana purchase home in your vehicle as long as it remains in a sealed container.
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 are complying with California's recreational marijuana or medical marijuana laws.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 without a state license, 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,
- federal courts,
- federal buildings such as the W. Los Angeles Federal Building on Wilshire Blvd., and
- national parks, such as Yosemite.
A California conviction for illegal marijuana cultivation is a "controlled substance offense" under 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:
- you are an undocumented alien, and
- you plead guilty to – or are found guilty of – a violation under California Health and Safety Code 11360 HS.
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 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.
- See California Penal Code Sections 1000 and 1210-1210.1 PC.
- See, e.g., Judicial Council of California Criminal Jury Instructions (CALCRIM) 2350. Sale, Furnishing, etc., of Marijuana (Health & Saf. Code, § 11360(a)):
See also CALCRIM 2360. Transporting or Giving Away Marijuana: Not More Than 28.5 Grams—Misdemeanor (Health & Saf. Code, § 11360(b)); and, CALCRIM 2361. Transporting or Giving Away Marijuana: More Than 28.5 Grams (Health & Saf. Code, § 11360(a)).
- 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.
- 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.
- California Health and Safety Code 11006.5 HS.
- CALCRIM 2352: Selling for the purpose of this instruction means exchanging the marijuana for money, services, or anything of value.
- See, e.g., People v. Lazenby (1992) 6 Cal. App. 4th 1842, 8 Cal. Rptr. 2d 541.
- CALCRIM 2350 and 2360.
- CALCRIM 2350.
- CALCRIM 2361.
See also Health & Safety Code 11360(c) HSC. ("(c) For purposes of this section, "transports" means transport for sale.")
- People v. LaCross (2001) 91 Cal. App. 4th 182, 109 Cal. Rptr. 2d 802.
- People v. Ormiston (2003) 105 Cal.App.4th 676, 129 Cal.Rptr.2d 567.
- CALCRIM 2350.
See also People v. Rogers (1971) 5 Cal. 3d 129, 95 Cal.Rptr. 601.
- Facts based on People v. Francis (1969) 71 Cal.2d 66, 75 Cal. Rptr. 199.
- Facts based on People v. Rogers, endnote 14.
- California Health and Safety Code 11360(a)(2).
- California Health and Safety Code 11360(a)(3).
- California Penal code 1203(a).
- California Health and Safety Code 11362.765(a) and (b).
- See same.
See also People v. Wayman (2010) 116 Cal.Rptr.3d 833, 189 Cal.App.4th 215, review denied.
See also California Health and Safety Code 11362.5(e).
- 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).
- a id="insertion_37901" class="insertion link" href="http://www.law.cornell.edu/constitution/fourth_amendment" target="_blank">The Fourth Amendment to the U.S. Constitution.
- California Health and Safety Code 11357 HS.
- However, possession for sale without a license 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.
- California Health and Safety Code 11358 HS.
- California Health and Safety Code 11361 HS.
- California Health and Safety Code 11361(a).
- California Health and Safety Code 11361(b).
- California Vehicle Code 23222(a) VC.
- 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.
- See 21 U.S. Code Sections 811(b)(1) and 812(c), Schedule I (c)(10).
- 21 U.S. Code 841(b)(1)(D).
- Article VI, Paragraph 2 of the United States Constitution (the “Supremacy Clause”).
See also Gonzales v. Raich (2005) 545 U.S. 1.
- See People v. Mitchell (2014) 170 Cal.Rptr.3d 825, 225 Cal.App.4th 1189, review filed.
- See Office of National Drug Policy, Answers to Frequently Asked Questions about Marijuana.
- 8 U.S.C. 1227 -- Deportable aliens