Before 2018, it was against the law to possess marijuana, even for personal use. Marijuana usage for adults became legal after Proposition 64 became law. But the marijuana that was made legal was just for recreational use. Marijuana possession with intent to sell is still unlawful and a severe crime. To sell and distribute marijuana, you require a license. Being guilty of possessing marijuana and intending to sell it will result in a lengthy jail sentence and a significant fine. But your situation can improve if you deal with a knowledgeable criminal attorney.

At California Criminal Lawyer Group, our tenacious criminal defense attorneys can vigorously defend against your attempts to persuade the court to dismiss or downgrade your charges. Therefore, you can contact us if you or a loved one is under investigation for these accusations in Anaheim.

The Legal Meaning of Possession of Marijuana for Sale

The regulations governing the use, sale, and distribution of marijuana in California are pretty specific. In 2018, the use of cannabis for personal purposes became legal. However, it is still illegal to sell or distribute it. To operate a marijuana business, you must apply for a license. Health & Safety Act 11359 prohibits the possession of marijuana with the intent to sell it. It is against the law for anyone to have more marijuana than is necessary for recreational use. The elements of the crime that the prosecution must establish for the jury to find you guilty are included in the legal definition of this violation. These components include:

  • The police arrested you with a regulated drug.
  • You knew of the drug's presence or ought to have known of its existence.
  • You knew of its status as a regulated substance.
  • You wanted to sell that substance on the black market.
  • The substance was indeed marijuana.
  • It was in a usable quantity.

To further grasp the law, let us examine some of these components in more detail:

Marijuana as a Regulated Substance

According to HS 11018, marijuana includes all living and extinct elements of a plant called Cannabis sativa L. It can also include substances made from the plant's leaves, seeds, or resin extracted from any component of that plant. The prosecutor must establish that the drug under your control was marijuana. If not, you will not face prosecution under this law.

Possession of Marijuana

Possession of marijuana means being in control of the controlled substance. A person can be in constructive, actual, or joint possession of a regulated substance.

Actual possession happens when the drug is in your immediate possession, either directly or indirectly, through clothing or a bag. Taking marijuana with you in your pockets, purse, or backpack is one example. Even if you share the item you are concealing or storing with another person, you will still be regarded as having it in your actual possession.

When you have constructive possession of a substance, you have the right to it but no physical access to it. Although the substance could be located elsewhere, you have an absolute right to it. For example, even when you leave the area where you are growing marijuana, you still have constructive possession of it.

Constructive possession can also happen when you possess and have influence over the substance through another person. For example, those who manage commercial marijuana production enterprises and employ others to run them legally possess the drug through their workers. The employee is responsible for looking after the business, generating sales, and sending you the money. But you continue to be the business's owner.

When two people jointly own marijuana, that is considered joint possession. For example, when jointly operating a marijuana business with a relative or friend, you two are responsible for the substance's production, harvest, and sale.

Knowledge About Marijuana Presence

You must know that marijuana is under your control for this law to apply. Under HS 11359, merely possessing the drug does not constitute a crime. You must be aware that you have the substance mentioned above. You will not be guilty of knowing the existence of marijuana in your control if someone places it in your backpack or requests that you hold a package with the substance for them. However, the likelihood that you have this knowledge will increase if you live alone and the police discover the substance hidden in your bedroom.

Knowing About the Nature of the Substance as a Controlled Drug

Having marijuana or knowing it is there is insufficient for the prosecution to establish your guilt beyond a reasonable doubt. According to the law, you must also be aware that your drug is controlled. The prosecutor will probably consider how you responded when the police stopped to check if you had drugs on you. If you are unaware of the kind of narcotics you are carrying, you will not tense up or try to run from the cops. However, if you are already guilty of possessing a controlled narcotic, you will exhibit fear and trepidation when responding to the police's inquiries.

Intention for Sale

Keeping marijuana with the intent to sell it is prohibited under HS 11359. When sold, a controlled drug is exchanged for a valuable good or service, for example, cash, other illicit drugs, debt payment, a house, sex, other possessions, or services like house cleaning.

The prosecution must prove beyond a reasonable doubt that you planned to trade the narcotics. Most of the time, defendants will not admit their intent to sell a regulated substance because they fear the severity of the punishment. However, prosecutors have a unique method for obtaining these data to strengthen their case, for example, by considering what you were doing during your arrest or the quantity of the substance you had on you.

If the prosecution has a video showing you accepting cash in return for marijuana, they can use that as direct evidence to prove that you intended to market the controlled substance. They can also rely on circumstantial evidence, like how the substance was packaged, the excessive quantity of drugs you were carrying, and videos of numerous people entering and leaving your flat. A hoard of cash, measuring devices, and baggies in your apartment could indicate that you were trying to trade the substance.

Marijuana in Usable Quantities

You must also have sufficient amounts of the drug under your control. You have enough drugs in your control to be used as a controlled drug by someone else if you have usable quantities of them. A drug does not need to be consumed in large doses or with high potency for the user to become high. Even if additional factors show that you planned to sell that drug, the prosecutor cannot press charges under this provision if the police only uncover traces of it in your home or your person.

Penalties After a Conviction Under HS 11359

This statute's violations are often misdemeanors. But in exceptional cases, the prosecutor can bring felony charges. Possible punishments after a misdemeanor conviction include:

  • Jail time for up to six months.
  • Court fines of $500.

The following situations are those in which the prosecution can file a felony charge against you for possessing marijuana with the intent to sell:

  • If you have ever been convicted of a serious offense, like a sexually violent crime against a child or a sex offense that necessitates registration on a sex offender registry.
  • If you have two or more prior misdemeanor marijuana possession or selling convictions on your record.
  • If there is proof that you intended to peddle the substance to a minor (individual below 18).

If you are guilty of a felony under this legislation, you could spend up to three years in prison.

Note: For people who are guilty of possessing marijuana to sell it, drug diversion programs are not available. Only those guilty of having too much marijuana, growing it for their own use, or using too much marijuana are eligible for these treatment programs. Therefore, if you want to enroll in a drug diversion program, it can be helpful if your criminal defense lawyer can bargain for a charge reduction. For example, your lawyer can convince the prosecution to drop the charges against you for simple marijuana possession, allowing you to benefit from the drug diversion program instead of serving time behind bars.

Probation Instead of Jail

Most of the time, judges sentence defendants to probation instead of jail. If you are lucky, the judge can impose misdemeanor probation rather than a six-month jail term. However, your probationary period will be lengthier, lasting between one and three years. You will serve the entirety of your sentence without being imprisoned if the judge grants you probation. But there will be a set of probationary requirements that you must follow. These conditions include, among others:

  • Submitting periodic reports to the judge about your progress.
  • Participating in individual or group counseling.
  • Participating in community service or labor.
  • Submitting to routine drug tests.
  • Submitting to unwarranted searches on your person or property.
  • Remaining within the court's jurisdiction throughout probation.
  • Not committing a crime while on probation.

Any violation of the court's probationary requirements will have serious repercussions. The judge can issue you an arrest warrant if they discover you have violated the probationary rules. To ascertain the specifics of the violation and the repercussions, the judge will schedule a probation violation hearing. Following this hearing, the judge can choose to:

  • Continue probation after giving you a stern warning against further violations.
  • Continue probation after reviewing the probation conditions and replacing the simple ones with stiffer conditions.
  • Discontinuing probation and sending you to jail for the entire period required by law.

Defending Yourself Against HS 11359 Charges

The only way to avoid the severe punishment of a conviction for marijuana possession with intent to sell is to mount a strong defense against your accusations. That could work with the assistance of your lawyer. A knowledgeable lawyer will carefully research and employ some of the best legal defense methods to persuade the judge to decrease or dismiss your charges. The following are some possible defense tactics your lawyer could implement in your case:

The Marijuana was for Personal Use

Keep in mind that it is legal to possess marijuana for personal use. If you can persuade the jury that the marijuana you had was purely for personal use, you will avoid facing charges under this law. However, the quantity of marijuana you can hold for recreational purposes is typically limited. Only 28.5 grams of marijuana, eight grams of its concentrate, and six marijuana plants are permitted for personal use, according to the law. Your attorney could use those figures to persuade the jury that you just had enough marijuana for personal use and not enough to sell if your amount was within the legal limit.

You Needed The Marijuana for Medicinal Purposes

It is also legal to possess marijuana for medical purposes. But you must prove the same in court for the judge to drop the charges. You can have more marijuana than is permitted for recreational use if you need it to treat a medical condition. If you are a caregiver for a patient who requires marijuana for therapeutic purposes, you can also take similar action. However, the jury will need proof of your allegations, like medical records outlining the nature of your illness and how marijuana is necessary to treat or control it.

You are Licensed to Sell Marijuana

Except for people with a legitimate license to peddle the drug, anyone who keeps marijuana for the purpose of selling it is subject to HS 11359. While you could have permission to sell marijuana, the police could have mistakenly detained you. Your attorney can present the court with a legitimate trade license to support this defense. Remember that the license must be current for your business to function legally, and all regulatory requirements must be met.

You Had No Intent to Sell

HS 359 prohibits possession of marijuana with the intent to sell. The court cannot find you guilty if you do not have this intent. It can be challenging for prosecutors to demonstrate intent when establishing such cases. They depend on various types of evidence to persuade the jury of a defendant's intention to sell. The majority of the time, circumstantial evidence, which cannot establish a case beyond a reasonable doubt, is used by prosecutors.

For example, just because you have a lot of marijuana does not mean you intend to sell it. Drug paraphernalia is another unmistakable sign of this intention. Your attorney can use this defense tactic to have the charges against you dropped or reduced if the prosecutor does not have compelling proof that you meant to trade the marijuana.

The Search and Seizure Was Illegal

Drug offenders typically operate in secret, making it nearly impossible for law enforcement to apprehend them while committing a crime. The majority of drug-related arrests take place following thorough investigations into alleged operations. Police perform searches and seizures as they compile evidence to back up the allegations. However, law enforcement needs legal search warrants to execute these searches and seizures. They must obtain a search warrant, which should serve as their guide about the scope of their investigation. But there are situations when police search without a warrant and seize evidence. Sometimes they go further than what is allowed by a legal search warrant.

If it were to happen to you, you could argue that the search and seizure that was made of you was unlawful. Any evidence the police would have obtained in that situation would not be acceptable in court.

You Lacked Knowledge Regarding the Presence or Nature of the Substance

Remember that a critical component in the definition of this offense is knowledge of the drug's nature or presence under your control. Without this information, the prosecutor cannot establish guilt beyond a reasonable doubt. You had to know or should have reasonably known that you had the drug to know its presence. You are not guilty under this provision if someone else placed the drug among your items without your knowledge.

If you knew the substance's nature, you knew or should have reasonably known that the drug under your control was a controlled drug. You will not be guilty under this provision if someone asks you to deliver the substance on their behalf but fails to disclose the nature of the substance.

Insufficient Evidence

An adept criminal defense lawyer can challenge any evidence the prosecution team presents to render it insufficient, then utilize this defense tactic to persuade the court to drop your charges. Remember that before trial, your lawyer has the right to evaluate every piece of evidence the prosecution has. They can look for gaps in the proof or other ways to weaken it so that the prosecution cannot establish its case beyond a reasonable doubt. The judge will throw out your case if that goes in your favor.

Possession of Marijuana For Sale and Related Offenses

It is essential to be aware of various legal violations to which HS 11359 is directly tied. The most common of these offenses are:

Simple Possession of Marijuana

HS 11357 prohibits the simple possession of marijuana. Anyone over 21 is not allowed to have a significant amount of marijuana in their possession. Although adults can use marijuana for therapeutic or recreational purposes, there are restrictions on how much an individual can keep in their possession. Having 28.5g of cannabis and 8g of its concentrate is the legal limit.

If you are detained for possessing more marijuana than is permitted by law, you can face a misdemeanor charge under this law, and receive a jail sentence of up to six months.

If you are accused of having marijuana with the intent to sell it, simple possession is the best charge reduction. Your attorney can negotiate a charge reduction to lessen the seriousness of your accusations and the possible punishments.

Illegal Production of Marijuana

In California, HS 11358 limits the number of marijuana plants anyone over 21 can grow. Remember that growing marijuana for personal use is acceptable if you are not producing much of the drug. A license is required for anyone who wants to grow marijuana for sale. You can only cultivate six plants at a time. If not, you will probably be detained and accused of illegally cultivating a regulated substance. The primary crime is a misdemeanor, punishable by a maximum jail sentence of six months.

But in certain situations, it can constitute a felony violation. For example, if you register on the sex offender registry, have a profound felony conviction on your record, or have at least two marijuana cultivation convictions. According to this law, a felony conviction carries a maximum jail sentence of three years.

Illegal Selling of Marijuana

To sell or distribute marijuana to people needing it for medical or recreational reasons, you must have a legal license. Without it, selling or attempting to sell marijuana to another person could result in misdemeanor penalties. In the following cases, the prosecutor can bring felony charges for the illegal sale of marijuana:

  • You have previously been convicted of a violent felony or a sex crime.
  • You willfully sold marijuana to a juvenile.
  • You have at least one prior conviction for transporting and selling a prohibited drug.

Find an Experienced Criminal Defense Attorney Near Me

Possessing marijuana with the intent to sell is a serious drug offense that, depending on the specifics of your case, can result in misdemeanor or felony penalties. A conviction can have a profound impact on your life. To navigate the judicial system and develop a strong defense against your charges, you should seek legal assistance as soon as possible after your arrest.

The California Criminal Lawyer Group deals with all types of drug-related charges. As a result, we can apply the most excellent legal defense strategies to bring your case to a successful conclusion. Additionally, we will support you throughout the complex legal procedure while defending your rights and ensuring that only your best interests are pursued. To find out more about our services, call our Anaheim offices at 714-766-0965.