Possession of Marijuana For Sale

California voters in November 2016 passed Prop 64, also called the Adult Use of Marijuana Act. Later, in January 2018, the law was enacted, legalizing marijuana possession. However, you risk arrest and drug charges for having usable quantities of marijuana, and law enforcement reasonably believes you planned to sell it without the relevant permit. Criminal counts for possession of marijuana for sale attract severe penalties, including lengthy incarceration and hefty court fines. We can contest the charges for a fair outcome at the California Criminal Lawyer Group in Fresno.

Overview of Possessing Marijuana for Sale

California categorizes drugs known to have negative mental and health effects on consumers as controlled drugs or substances. Because of the detrimental effects of the substances, drug crimes are severely punished in the state. One of these controlled substances is marijuana. It is legal for an adult over the age of 21 to possess an ounce of pot for recreational or personal use. The law permits the personal use of marijuana because of its multiple medical benefits. However, when law enforcement reasonably believes that you anticipate selling the pot you have, you risk arrest and formal charges for possessing cannabis for sale.

Before the enactment of Prop 64 in 2018, having even the slightest quantity of marijuana was a crime and attracted severe penalties when the court issued a guilty verdict. The 2018 Act legalized recreational marijuana consumption among adults over 21. Today, it is legal to have marijuana for personal use. However, you will require state licensing to trade on the controlled substance.

The law has created confusion because innocent people end up with charges for marijuana possession with intent to sell when all they possessed was for personal use. It means you can face charges and wrongful convictions without contravening the law. Therefore, you require an experienced lawyer to prevent a wrongful conviction and severe penalties.

Health and Safety Code (HS) 11359 is the statute that prohibits possessing marijuana with plans to sell it. The law prohibits possession of cannabis with intent to sell, except if the sale is for medical marijuana as stipulated in the law or to adults by a business licensed by the state to sell the controlled substance for recreational purposes.

Elements of HS 11359 Violation

Under HS 11359, it is illegal to have marijuana with plans to sell except if you have adhered to all state requirements. When building a case against you for this crime, the District Attorney (DA) should demonstrate that:

• You possessed controlled substances.
• You were aware or knew of the drugs’ presence.
• You understood the nature of the stash as a controlled drug or substance.
• You planned or intended to peddle or unlawfully sell without the requisite licenses from the concerned authorities.
• The controlled substance was pot or marijuana.
• The pot quantities in your presence were usable.

Highlighted below is a deeper insight into the elements.

Marijuana Meaning

Marijuana refers to the cannabis sativa plant’s parts. The plant comprises seeds, leaves, and resins extracted from various parts. The substance could also refer to any derivative, product, compound, or mixture produced from the parts. The DA must demonstrate that you were aware or knew of the substance’s nature as marijuana. The law does not require the prosecutor to prove that you understood the detrimental effects of the drugs, their chemical composition, or their name. Instead, all they must demonstrate is that you were aware the drug was marijuana.

You Possess the Marijuana

Marijuana possession takes multiple forms. It can be actual or constructive possession. If several individuals possess the drug, it is known as joint possession.

The prosecutor proves actual possession by arguing that you were holding the pot or the substance was in the bag you were carrying or your pants pockets. Actual possession is having something in your hands, purse, or pockets.

Being in actual possession does not mean the substance belongs to you. You can be carrying another person’s bag without knowing its contents. Even under the circumstances, you will face HS 11359 violation charges. This form of possession can also be shared if the marijuana stash belongs to multiple parties.

You still risk a conviction even if you do not have the marijuana in your immediate possession or are holding it. Exercising control over the controlled substances or having the authority to control the drugs indirectly is constructive possession, and you risk a guilty verdict if the prosecutor can prove it.

For instance, it is legal for adults to plant at most six marijuana plants for personal use. If you grow more than the designated limit in your yard, you risk charges for having marijuana to sell even when you did not engage in the peddling. The fact that you controlled the garden where the marijuana plants grew means you are in constructive control of the substance.

When proving constructive possession, the DA does not have to show that you touched or controlled the drug. You can exercise ownership over the stash through another party called an agent. For example, you run a marijuana-growing enterprise and have hired a manager to oversee operations. Even though you are never present in the growing or processing of the marijuana, you exercise control through the manager, meaning you have indirect or constructive possession.

Lastly, constructive possession can be shared if multiple people control the marijuana stash.

You Knew of the Marijuana Presence

Mere possession of marijuana is not sufficient to secure a guilty verdict. The DA must prove that you knew of the presence of the substance to be guilty. The pot could be in your possession, but you do not know about it because someone placed it there without your knowledge. If you were unaware or lacked knowledge of the pot’s existence, you are innocent of HS 11359 violation.

For instance, your college roommate stashes some marijuana in the bathroom of the apartment you share. However, they do not tell you about it, so you are unaware of the drug’s existence in the room. Even with sufficient access and control over the bathroom where the stash is, the DA cannot convict you of the HS 11359 violation. However, when the drugs are found in a private area that only you have access to or control over, like the bedroom, law enforcement will conclude you knew of the marijuana presence. It will be up to you and your lawyer to show the substances were not yours; otherwise, you risk conviction.

You Understood the Substance’s Nature as a Controlled Drug or Substance

Before the court finds you guilty of the HS 11359 violation, the DA should demonstrate that you were aware the stash in your possession was a controlled narcotic. The DA does not need to show that you were aware that the substance was marijuana. The reasoning behind this is that you could own the substance without knowing whether it is a controlled narcotic or drug.

For example, a friend visits and brings a stash filled with green substances, which he says are sage and will help spiritually cleanse the apartment. Unfortunately, the stash is marijuana, and the friend plans to peddle it without a license. If you do not recognize that the substance is marijuana or a controlled drug, the court will not convict you of having pot for sale.

The prosecutor heavily relies on your behavior during apprehension to show you understood the nature of the substance as controlled. The police will infer that you knew the stash was a controlled drug if you tried to conceal it when you saw the police or were worried when the officers started questioning you.

Your defense lawyer can challenge the circumstantial evidence used to prove this element by claiming that it was the police that made you jumpy and not knowledge that the substance you possessed was controlled.

You Planned to Sell Marijuana in the Black Market

Selling under HS 11359 means exchanging pot for valuable items, services, or money. You could swap the substance for sex, an apartment, other controlled substances, or debt repayment. Engaging in any transaction using the drug without a valid license or in the black market is illegal.

The DA should show that you intended or planned to sell the marijuana using direct or circumstantial evidence. The police will have direct proof of your motive to sell the pot if they see you exchange it for cash or if you make a statement that you want to sell the marijuana.

When direct proof is unavailable, the DA relies on circumstantial or indirect evidence to prove their case. This is where the prosecutor’s case is frailest because if your defense lawyer is keen, they can contest the arguments, leading to a favorable result. The indirect proof the prosecutor depends on to prove this element is:

• The marijuana in your control exceeded the allowable limit and could not have been for personal ingestion.
• The marijuana was together with equipment like baggies and weighing scales.
• You were apprehended in possession or control of pot in a location famous for black market pot or narcotics sale.
• The packaging of the pot was in multiple containers of the same size, suggesting the stash was for sale.
• Cash and weapons were together with the pot.
• Testimony from an expert witness told the pot was for trade.

HS 11359 does not stipulate the exact quantity of marijuana that could be deemed for sale. However, the amount of pot you had can help infer whether the pot was intended for sale. If you had large amounts of the substance in your property, it could indicate your determination to trade. Nevertheless, this is circumstantial evidence that a profound lawyer can easily contest.

Also, marijuana for personal ingestion is normally stored in a single pack. However, if you have multiple marijuana containers, the prosecutor can be quick to fault you for planning to peddle it. The proof will be overwhelming if equipment like baggies and scales are found at the scene alongside the containers.

An individual trading marijuana is also likely to have colossal amounts of cash and weapons. However, several reasons exist for keeping money or guns at home, meaning your lawyer can contest the assertions.

Finally, if you planned to sell the marijuana, it should have been usable. You cannot be planning to sell less than an ounce of marijuana. Usable amounts mean the substance should be sufficient to be used by someone else as a controlled drug. Traces of marijuana cannot be used as evidence to convict you under HS 11359.

Penalties for Having Pot for Sale

An HS 11359 violation is a severe crime that attracts misdemeanor or felony penalties, depending on your case’s circumstances. Mostly, possessing pot for sale in the absence of a valid license is filed as a misdemeanor. A guilty verdict for the crime attracts no more than half a year behind bars and financial court fines of at most $500.

Nevertheless, after the enactment of Prop 64, possessing marijuana with plans to sell under unique circumstances can be filed as a felony. The circumstances under which the crime is chargeable as a felony are:

• You have a previous sentence for a violent felony like murder, sexual violence, sexual abuse of minors younger than fourteen, sex crimes with an obligation to enlist as a sexual predator or gross vehicular manslaughter under the influence.
• You have over two previous convictions of HS 11359 violation.
• You had the pot for sale, and you have been linked to selling or attempting to sell the substance to underage.

Under these special circumstances, contravening HS 11359 is a felony punishable by a county jail incarceration of 16, 24, or 36 months.

You should understand that if you were convicted of a felony HS 11359 violation before the adoption of Prop 64, you can request resentencing if the offense would have been a misdemeanor under the new law. If the court grants your request for resentencing, you could be released immediately if you have completed the misdemeanor sentence. If you have already served the felony sentence, you can petition the court to change the conviction from a felony to a misdemeanor.

1. Drug Treatment or Diversion

You are unqualified for drug treatment or diversion if the court convicts you of possessing pot with plans to peddle. Drug diversion allows you to be sentenced to a drug treatment program with stringent conditions instead of spending time in jail. The option only exists if you have been charged with simple possession, not possession with plans to sell. Besides, drug treatment is available for people charged with planting more than the designated number of cannabis sativa plants.

Therefore, if you face HS 11359 violation charges, your defense lawyer can negotiate with the prosecutor to have the charge reduced to simple possession of more than an ounce of pot, which is a misdemeanor crime eligible for drug treatment. That way, you will avoid jail time.

2. Summary or Informal Probation

Under particular circumstances, you could qualify for informal or summary probation instead of serving a jail sentence. If the judge imposes probation, you will not spend time behind bars for the HS 11359 violation conviction. Nevertheless, you must contend with the strict requirements of the court's stringent probation terms. These requirements are:

• You must file regular progress statements with the court.
• You must pay victim restitution.
• Participate in group or individual therapy.
• Agreeing to random drug tests.
• Participating in community hours.
• Agree to random searches on your person or property without a valid search warrant.

Contesting HS 11359 Violation Charges

It is expected to feel terrified when charged with a violation of HS 11359, as a guilty verdict for the crime is linked to life-altering consequences. However, charges for the crime do not always mean you are guilty. The prosecutor must prove all the elements of the crime for you to be guilty. You can avoid the guilty verdict by hiring a defense lawyer to help you contest the charges.

At the California Criminal Lawyer Group in Fresno, we will analyze your case and craft solid legal defenses to have the charges reduced or dismissed. The defenses you can use to fight the accusations are:

You were Unaware of the Pot’s Existence

The court requires the prosecutor to demonstrate that you knew of the stash’s presence for you to be guilty. However, you can even have actual possession of the substance but not have access to it or be aware of its existence. For instance, the pot could be in your gym bag that you share with your roommate without your knowledge. The court will not convict you for an HS 11359 violation in this situation.

The Pot was for Personal Use

In California, it is legal to have an ounce or 28.5g of pot for personal ingestion. Possession does not always indicate an intent to sell. Therefore, it is up to your defense lawyer to convince the court that the stash was for personal use. The DA heavily depends on indirect evidence to prove intent to sell, and this presents an excellent opportunity for your lawyer to poke holes in the evidence presented, putting doubt in the jury’s minds.

When the DA argues that you had multiple containers of marijuana, each containing the same marijuana quantity, your lawyer can argue that you stored the substance that way to differentiate varieties for personal use and not for sale. The lawyer will claim that you purchased the recreational marijuana in different packages.

Also, if the reason the prosecutor believes the pot was for sale is the presence of weapons or cash at the scene, your lawyer can assert that the guns were for keeping you and your family safe, not because you are a drug dealer. For the huge cash, the lawyer can claim the money was for other reasons and not the proceeds of the marijuana sale.

If the DA fails to present compelling evidence that you planned to sell the drugs, they will have a weak case that the court is likely to dismiss. Besides, weak evidence can compel the prosecutor to drop the charges.

The Pot was for Medical Purposes

Doctors prescribe medical pot to patients with chronic or terminal conditions. Under these circumstances, there is no limit on the amount of pot you can have. Therefore, if police have arrested you or a caregiver for possession of large quantities of marijuana, your lawyer can argue that the substance was for medical reasons, preventing a conviction.

The Pot was for Future Use

If you are a habitual pot user, you can claim that you made huge purchases for future consumption. The large quantities could lead the police to conclude that the substance was for sale. Nevertheless, your lawyer can assert that the substance was for future consumption, mainly if it was in a separate bag or container.

Alternatively, your lawyer can claim you planned to share the stash with friends. However, it must be clear that you did not intend to exchange the product for favors, money, or valuable items. Under the circumstances, the prosecutor will lower the charge from possession for sale to simple possession, a reduced offense with more lenient penalties.

The Pot was Obtained through an Illegal Search

The police must have a valid search warrant before searching your property for marijuana unless you are serving probation. Therefore, when the substance is obtained through an unlawful search and seizure, your lawyer can have the evidence obtained illegally dismissed from the case. An illegal search is done without a valid license. Also, it could mean that a warrant was available but was not executed as directed by the issuing judge. The charges will be dropped if the investigating officers searched the property without a warrant or failed to complete the warrant as required.

Regardless of the overwhelming evidence against you for contravening HS 11359, you can still craft valid defenses with the help of your defense lawyer. At the California Criminal Lawyer Group in Fresno, we will walk you through the court processes and demonstrate that even though the marijuana in your possession was above the allowable quantity, it was for personal consumption. Our defense lawyers understand the tactics used by the DA and police. We will use the knowledge to contest the allegations and poke holes in the prosecutor’s evidence.

Find a Reputable Criminal Defense Lawyer Group Near Me

As opposed to possession for recreational use among adults, marijuana possession for sale in the absence of a license is illegal. A guilty verdict can lead to severe consequences, including incarceration. You will require a criminal defense lawyer to contest the charges. The California Criminal Lawyer Group in Fresno will help you fight the charges. Call us today at 559-712-8377 for a no-obligation consultation.