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California Health and Safety Code Sections 11357(a) - (d) - Possession of Marijuana

  • California Health and Safety Code §§ [Section] 11357 (a) – (d) – Possession of Marijuana

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Health and Safety Code [HSC] §§11357(a) – (d)Possession of Marijuana – HSC §§11357(a) – (d) make it illegal to possess cannabis or concentrated cannabis [hashish] under certain conditions.

If you're under eighteen and violate the statute more than once by possessing no more than 28.5 grams of cannabis, or eight grams of hashish, you can receive six hours of counseling and up to twenty hours of community service. You can be fined $100 if you're between eighteen and twenty-one. But if you're under eighteen and possess more than 28.5 grams of cannabis, or eight grams of concentrated cannabis, you face ten hours of counseling and up to sixty hours of community service for multiple violations of Section 11357. Possessing more than the amount described above can be punished by six months in a county jail or by a fine of $500, or by both fine and imprisonment, if you're over eighteen.

Additionally, if you possess more than more than 28.5 grams of cannabis or (eight grams of hashish) while on the grounds of a school during school hours, you can be fined up to $500 if you're eighteen or older and have a previous conviction under this Section. You can also receive imprisonment in a county jail for ten days or both imprisonment and a fine. If you're under eighteen and possess these amounts on school grounds, during school hours, you face up to ten hours of counseling and as many as sixty hours of community service for multiple violations of Section 11357.

Note: This page addresses all four sections of HSC §§11357.

What Does Health and Safety Code §§11357(a) and (b) [Possession of Marijuana] Prohibit?   

In sum, to be guilty of Possession of Marijuana under HSC §§11357(a) and (b), the prosecution must prove that:

  • You unlawfully possessed marijuana or hashish; AND,
  • You knew the drug was present; AND,
  • You knew it was a controlled substance; AND,
  • The marijuana weighed more than 5 grams or the hashish weighed more than eight grams.

Defining “Possession of Marijuana” Under Health and Safety Code §11357(a) and (b)

To convict you under HSC §§11357(a) and (b), Possession of Marijuana, the prosecution must prove the following beyond a reasonable doubt:

  • Unlawfully Possessed: You unlawfully possessed[1] a controlled substance; AND,
  • Knew…/Presence: You knew of the presence of the controlled substance; AND,
  • Knew…/Nature or Character: You knew of the substance's nature or character as a controlled substance; AND,
  • Marijuana…/Concentrated Cannabis: The controlled substance was marijuana[2] or concentrated cannabis;[3] AND,
  • Quantity Prohibited: The marijuana or concentrated cannabis you possessed was in a quantity prohibited by the statute.

Note: “If a medical marijuana defense applies under the Compassionate Use Act or the Medical Marijuana Program Act […], the burden is on” you “to produce sufficient evidence to raise a reasonable doubt that [your] conduct was lawful.”[4]

Example:  A resident of another state, Defendant Darrell, relocates to California for college. Knowing that the state made marijuana legal the year before, and coming from a state where it isn't legal, Darrell purchases seven grams (a quarter of an ounce) of marijuana from Marijuana Dispensary. But Marijuana Dispensary doesn't require that Darrell provide identification; thus they don't realize that he's eighteen. Darrell is arrested on an unrelated charge later that day. Officer finds his marijuana. Now Darrell faces an additional charge of violating §11357(a)(2). Darrell doesn't understand why. Can he be convicted of the drug charge?

Conclusion: Although California has made it legal to possess and use marijuana, it isn't legal for persons under twenty-one to possess or use the drug. Thus Darrell, who knew that he had marijuana in his possession at the time of his arrest, had a controlled substance in his possession, and, we can presume, was aware of this fact. The statute also criminalizes the quantity of marijuana Darrell possessed. Darrell can be convicted under §11357(a)(2) even though marijuana is legal to possess and use in California.

To convict you under HSC §11357(c), Possession of Marijuana on School Grounds 18 Years or Over, [5] the prosecution must prove the following beyond a reasonable doubt:

  • Unlawfully Possessed: You unlawfully possessed a controlled substance; AND,
  • Knew…/Presence: You knew of the presence of the controlled substance; AND,
  • Knew…/Nature or Character: You knew of the substance's nature or character as a controlled substance; AND,
  • Marijuana…/Concentrated Cannabis: The controlled substance was marijuana or concentrated cannabis; AND,
  • Quantity Prohibited: The marijuana or concentrated cannabis you possessed was in a quantity prohibited by the statute; AND,
  • Upon School Grounds…/Open For Classes: You were “upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 to 12, inclusive, during hours the school [was] open for classes or school-related programs”;[6] AND,
  • You Were At Least Eighteen: You were at least eighteen years of age at the time.

Note: A “usable amount is a quantity that is enough to be used” as “a controlled substance. Useless traces or debris are not usable[...] On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.”[7]

Example: Defendant Donald, fifteen, sneaks from Parent's house late one night and walks onto the grounds of neighboring Elementary School to smoke a marijuana cigarette (“joint”). He lights the joint while sitting atop the lunch benches. The illumination attracts the attention of Security Guard. He smells the marijuana in the air and calls police. Officer arrives and arrests Donald as Donald is trying to get back into Parent's house. He's charged with violating §11357(c). Is Donald guilty or should he be acquitted?       

Conclusion: The facts do not state that Donald was apprehended while in possession of any amount of marijuana. (He might've smoked it, in other words.) Furthermore, while he had to be there during class hours or a school program, Donald was on school grounds late at night. Donald, finally, is only fifteen - but he had to be eighteen to violate Section 11357(c). Since the accused must be acquitted if even one element of a charge can't be proved in court, Donald should be acquitted of the crime (even though he may be in trouble with Parent).

To be convicted under HSC §11357(d), Possession of Marijuana on School Grounds, Under 18 Years Old, prosecution must prove the following beyond a reasonable doubt:        

  • Unlawfully Possessed: You unlawfully possessed a controlled substance; AND,
  • Knew…/Presence: You knew of the presence of the controlled substance; AND,
  • Knew…/Nature or Character: You knew of the substance's nature or character as a controlled substance; AND,
  • Marijuana…/Concentrated Cannabis: The controlled substance was marijuana or concentrated cannabis; AND,
  • Quantity Prohibited: The marijuana or concentrated cannabis you possessed was in a quantity prohibited by the statute; AND,
  • Upon School Grounds…/Open For Classes: You were “upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 to 12, inclusive, during hours the school [was] open for classes or school-related programs”;[8] AND,
  • You Were Under Eighteen: You were under eighteen years of age at the time.

Note: “Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.”[9]

Example: Defendant Danielle, a fifty-year-old philanthropist, attends a fundraiser being held in a private banquet hall across the street from Elementary School, which is being benefited by the event. A jazz band is playing. Danielle, who loves jazz, decides to smoke some marijuana outside the hall before going inside to hear the band. She's smoking when Police Officer approaches, searches Danielle, finds a quarter-ounce of marijuana inside her purse, arrests Danielle, and charges her with violating HSC §11357(d). Danielle defends herself by pointing out that she only wanted to help Elementary School and shouldn't be punished for attending the event. Should she be acquitted?    

Conclusion:  Danielle possessed approximately seven grams of marijuana. She knew, presumably, that marijuana is a controlled substance. But possession of the drug under the circumstances wouldn't be unlawful under Section (d) because she wasn't on school grounds; as the facts state, the event wasn't even a school program. Thus Danielle couldn't have committed the act being punished by the Code Section: possessing marijuana on school grounds during school. Danielle, furthermore, is well past eighteen years of age. But she can't be older than eighteen to violate the law; this is required under Section (d). Thus, although she alludes to nothing more than an interesting issue in her defense (whether this prosecution could discourage donors from attending charitable events) and although she possessed a prosecutable amount of marijuana, Danielle should be acquitted under HSC §11357(d).          

Penalties For “Possession of Marijuana” Under Health and Safety Code §§11357(a) – (d)

  1. HSC §11357(a), Possession of Marijuana, First Offense

If you're under eighteen and violate HSC §11357(a), for the first time by possessing no more than 28.5 grams of cannabis or eight [8] grams of hashish, you can receive four [4] hours of counseling and up to ten [10] hours of community service, which must be performed in sixty [60] days.[10] You can receive six (6) hours of counseling and up to twenty (20) hours of community service, which must be completed within ninety (90) days, for subsequent offenses.[11]

You can be fined $100 [one-hundred dollars] for violating HSC §11357(a) if you're between eighteen and twenty-one.[12]

  1. HSC §11357(b), Possession of Marijuana

If you're under eighteen and possess more than 28.5 grams of cannabis (or eight [8] grams of hashish), you face eight [8] hours of counseling and up to forty [40] hours of community service for a first violation of Section 11357(b), which must be completed in ninety [90] days.[13] Subsequent convictions can result in ten (10) hours of counseling and up to sixty (60) hours of community service, which must be completed within one-hundred-twenty (120) days.[14]

Possessing more than the amount described above can be punished by six (6) months in a county jail or by a fine of $500 (five-hundred dollars), or by both fine and imprisonment, if you're over eighteen.[15]

  1. HSC §11357(c), Possession of Marijuana on School Grounds, 18 Years or Older

If you possess more than more than 28.5 grams of cannabis or eight (8) grams of hashish while on the grounds of a school during school hours, you can be fined up to $250 (two-hundred-fifty dollars) if you're eighteen or older and don't have a previous conviction under HSC §11357.[16] Subsequent convictions can result in a $500 (five-hundred dollar) fine, imprisonment in a county jail for ten (10) days, or both imprisonment and a fine.[17]

  1. HSC §11357(d), Possession of Marijuana on School Grounds, Under 18 Years Old

If you're under eighteen and possess more than 28.5 grams of cannabis or eight [8] grams of hashish while on school grounds during school hours, you face eight [8] hours of counseling and up to forty [40] hours of community service (which must be completed in ninety [90] days) for a first violation of §11357(d).[18] Subsequent convictions can result in ten (10) hours of counseling and sixty (60) hours of community service, which must be completed within one-hundred-twenty (120) days.[19]

Defenses To Possession of Marijuana Under Health and Safety Code §11357

Four common defenses against a charge of Possession of Marijuana under HSC §11357 are:

The Marijuana Wasn't Yours

Example: Defendant Denise, seventeen, goes to a concert with Boyfriend. They're standing near the venue's front door when Boyfriend begins to smoke marijuana. He soon realizes that he forgot his ticket in Denise's car and hands the joint to Denise. Boyfriend exits for the vehicle just as Police Officer, who's assigned to the concert, smells the marijuana, approaches Denise, and asks for her identification. Police Officer learns Denise's age and that she has no criminal record and proceeds to arrest Denise for violating HSC §11357(a)(1)(A). Denise insists that she did nothing wrong. Can Denise be convicted?     

Conclusion: Denise was in possession of what she presumably knew to be a controlled substance (since the facts suggest nothing to the contrary). She also knew that she was in possession of the joint when approached by Police Officer. Denise, as a seventeen-year-old, wouldn't be in lawful possession of the marijuana. Thus possessing any amount of marijuana – including the small joint she had in-hand – could be punished under the statute. These facts favor conviction. However, as the facts make clear, the joint Denise held was actually Boyfriend's; Denise held the marijuana cigarette only long enough for him to retrieve his misplaced ticket. Thus Denise may possibly be acquitted if her attorney makes a good argument stating that her possession was only transitory.   

You Were Unaware Of The Marijuana's Presence

Example: Defendant Douglas, nineteen, attends a party thrown by Friend, who orders food that same night but is too intoxicated to drive to Restaurant to get the order. Douglas offers to do so. Friend gives Douglas the keys to Friend's truck and Douglas leaves. But Friend neglects to mention that he has a warrant for his arrest because of unpaid parking tickets. Douglas only learns of the warrant after he's pulled over. Arresting Officer then asks for permission to search the vehicle, which Douglas provides, only to find almost twenty ounces of marijuana. Douglas is arrested and charged under HSC §11357(a)(2) but swears that he is innocent. Should he be convicted or acquitted on these facts?

Conclusion: Douglas was in “constructive possession” of twenty ounces of marijuana because, as the driver of the vehicle, he had access to the drug while inside the truck. Douglas's possession of marijuana would be illegal under California law as a nineteen-year-old. Thus possessing any amount of marijuana would be punishable under the statute. All these facts suggest that Douglas is guilty. However, Douglas didn't drive his own truck; thus it's reasonable to assume that Douglas had no knowledge of what was in Friend's vehicle when Douglas borrowed it. Therefore a jury could have reasonable doubts as to Douglas's knowledge in his favor. Douglas, thus, should be acquitted because he was unaware of the marijuana's presence.    

You Didn't Possess Marijuana

Example: Defendant Devlin, twenty, has a conviction on his record for selling drugs. He decides that, while he will continue to do so, he'll manufacture an imitation of marijuana using incense and dried house plants and sell it to unsuspecting street purchasers. Devlin makes a half-an-ounce (14 grams) of his imitation, goes with it to Public Park, and is arrested after Undercover Officer overhears him telling Park Guest that he possesses marijuana. Devlin is charged under §11357(a)(2). Is he guilty of the crime?    

Conclusion: Devlin actually intended on misrepresenting that the amalgam of ingredients he had on his person was marijuana. Thus an element of the offense is missing from the charge. Courts of this state must find in favor of the defendant every time this happens. Devlin, it follows, must be acquitted because the prosecution can't prove an element of the charge. Devlin didn't possess marijuana.[20]

You Were The Victim Of An Illegal Search

Example: Defendant Donny, fifteen, is standing on a street corner. He's waiting for the street light to change. Donny looks through the window of the store located behind him while he waits. He has his hands in his pockets because it's very cold. Motorcycle Officer, parked on the adjacent street, sees all this and becomes suspicious. She stops Donny as he's halfway through the crosswalk, pulls over, and frisks Donny on the street opposite the furniture store. She tells Donny that she suspects him of ‘casing' the furniture store (studying it in preparation for a robbery). This is when Motorcycle Officer – who has been a police for a few months but has never made an arrest involving a robbery and doesn't know the area[21] - finds 10.5 grams (three-eights-of-an-ounce) of marijuana tucked into Donny's left sock. She charges Donny, a first-time offender, with violating §11357(a)(1)(A). Donny, who was on his way home (just two blocks away), doesn't understand why he was stopped at all. Should Donny be convicted?    

Conclusion: While there are instances in which law enforcement is allowed to stop, and frisk, a person based solely on observation, this power is subject to limitations. The observations on which the arrest and search are made must be reasonable under the circumstances. If Donny had stood on the corner for a prolonged period, or had drifted past the store multiple times while looking inside, Motorcycle Officer might've had reason to suspect Donny of ‘casing' the store. He did not. That Donny was stopped while walking towards his home (in the direction opposite the store) and frisked on the adjacent street suggests further that Motorcycle Officer had no right to stop Donny. The fact that it was cold explains Donny's having his hands in his pockets (which is, in itself, very common behavior). In any case, this fact would've allowed Motorcycle Officer only the power to frisk Donny's pockets - but she found the contraband in Donny's sock. (This might've been different if she could tell that Donny had something hidden in his sock based on ‘plain sight.') Thus it can be argued that the frisk search itself was illegal. Motorcycle Officer, furthermore, had little experience with actual law enforcement (she'd only “been a police for a few months”) and had no experience with robberies. She was also unaware of the fact that Donny lived locally, something which might've otherwise dissuaded her from suspecting Donny of a crime. Thus it can be argued effectively that the marijuana on Donny's person was obtained through an unconstitutional search. The charges should be withdrawn, therefore, since there's no admissible evidence of drug possession and Don should go free because he was the victim of an illegal search.        

Medical Marijuana, HSC §11362.5 and Proposition 215 (“The Compassionate Use Act”)

Marijuana possession and use became legal in California when Proposition 215, “The Compassionate Use Act,” was enacted by voters in 1996. Proposition 215 was subsequently codified under the Health and Safety Code §11362.5.[22]

Proposition 215, in essence, allows use of marijuana with a physician's recommendation. You must've been diagnosed as having a “serious condition” to receive a valid recommendation. The Health and Safety Code defines “serious condition” with some specificity.[23]

If you qualify, you can also apply for, and receive, a medical marijuana identification card. Medical marijuana identification cards must be obtained through the health department of your county. They are not available in every county in California.[24]A medical marijuana identification card, if valid, allows you to legally use, possess, transport and/or cultivate marijuana. It also excuses you from paying sales and use taxes. But a medical marijuana identification card doesn't allow you to give away or sell marijuana or to possess marijuana with the intent of selling it. It permits only personal use of marijuana.

 

A medical marijuana identification card also allows you to possess up to eight ounces of dried marijuana (‘flower'). It permits, furthermore, cultivation of six mature marijuana plants or twelve immature plants. The card also permits transportation of reasonably necessary amounts. (Possession and use of hashish [‘hash'], or concentrated cannabis, is also permitted with a valid card.) But you're prohibited from smoking marijuana in any place in which smoking is prohibited. The same is true of smoking marijuana on or near the grounds of schools or youth centers. You're also prohibited from smoking marijuana in a motor vehicle being operated, or while you're operating a boat, or while you're on a school bus.[25]   

It's also possible to receive a medical marijuana identification card to serve as a “primary caregiver”[26] for someone else (though you don't need a card merely to serve as a “primary caregiver”). You must be eighteen to do so. You must also be responsible for the patient's housing, safety, or health and you must be designated as “primary caregiver” by the patient. Thus the patient must apply for your card and your “primary caregiver” card expires when the patient's medical marijuana identification card expires.

If you're designated as a “primary caregiver,” you're permitted legally to do everything that you would otherwise be allowed to do if you held a medical marijuana identification card for yourself, except that you're designated to act on behalf of a patient who requires the medical marijuana.[27] The same restrictions in use and distribution apply for the “primary caregiver” as for the individual card holder.[28]

Marijuana Legalization & Proposition 64

It became legal for adults to possess and use marijuana, and for businesses to sell it, after California voters approved Proposition 64 in November of 2016. The law has been in effect since January of 2018. 

Only persons who are twenty-one or older may lawfully possess, use, transport or sell marijuana. The quantity limit is 28.5 grams (approximately an ounce) for possessing or transporting marijuana or as many as eight grams of concentrated cannabis. Possessing any more is punished as a Misdemeanor, while persons younger than twenty-one are eligible to receive drug counseling or community service.

Proposition 64 also establishes fines for persons eighteen and older for possessing or using marijuana while on the grounds of any school during school hours or during any school-related program. Those under eighteen are eligible to receive drug counseling or community service. You may only smoke marijuana in legally designated places that restrict age to those twenty-one of older and which do not sell alcohol or tobacco (or your own home, of course).

Proposition 64 changed the law regarding possessing marijuana for sale. Businesses are permitted to sell marijuana; individuals who possess it with the intent to sell it now face a Misdemeanor sentence unless they have a conviction on their record for a serious felony, or a sex crime, or at least two prior convictions for possessing marijuana for sale, or unless they sold it to someone under age eighteen.[29] 

Transporting marijuana is now legal, as with possessing marijuana for sale, within certain limits.

If you don't have a license and are arrested transporting marijuana, you now face a Misdemeanor sentence unless you have a conviction on your record for a serious felony, or a sex crime, or at least two prior convictions for possessing marijuana for sale, or unless you sold it to someone under age eighteen or transported more than 28.5 grams of marijuana (or eight grams of concentrated cannabis).[30] 

You are also permitted to cultivate as many as six marijuana plants under the new law. Persons over twenty-one who're convicted of cultivating more plants will now face a Misdemeanor unless they have a conviction on their record for a serious felony, or a sex crime, or at least two prior convictions for cultivating more than six marijuana plants or unless they violate state or federal environmental law. Those under twenty-one face an Infraction charge under Proposition 64.

Finally, Proposition 64 allows those convicted of marijuana charges to apply for reductions in their sentences.[31] It'll be presumed that you meet the criteria for sentence reduction (the prosecution will have to argue otherwise, if they want to prevent it), and that reducing your sentence won't endanger the public unless the judge issues a specific finding that it will. The effect can be a lessening of your sentence, or immediate release from jail, as well as restoration of incidental rights like gun possession.

Related Offenses

Note: The crimes below are described as “related” because they're frequently charged with HSC §11351 and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

Included in the California Health and Safety Code are several offenses related to Possession of Marijuana: Planting, etc., Marijuana (HSC §11358), Possession for Sale of Marijuana (HSC §11359), Offering to Sell, Furnish, etc., Marijuana (HSC §11360(a)), Employment of Minor to Sell, etc., Marijuana (HSC §11361(a)), and Driving with an Open Container of Cannabis (California Vehicle Code [CVC] §23222(b)(1)).

Planting, etc., Marijuana

The crime of Planting, etc., Marijuana (HSC §11358) involves planting, cultivating, harvesting, drying, or processing any part of a cannabis plant. For purposes of the statute, “marijuana” is defined as “all or part of the Cannabis sativa L. plant, whether growing or not, including the seeds and resin extracted from any part of the plant. It also includes every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.”[32]

Since Planting, etc., Marijuana can be prosecuted as a Misdemeanor or a Felony, depending on the facts of your case, the crime is considered a “wobbler”[33] in California. You can receive a Felony sentence for three or more violations of the statute, or having a sex crime conviction on your record, or for producing one of the statute's enumerated environmental effects.[34]

Section 11358 is also punishable under the state's “Three Strikes” system.[35] If you receive three “strikes,” you'll serve at least twenty-five (25) years in a state prison.[36]

If you're convicted of Planting, etc., Marijuana, the penalty (without additional enhancement) may be:

  • A term of up to three (3) years in a state prison;[37] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[38]

Note: Marijuana “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.”[39]

More information can be found in the California Marijuana Cultivation Defense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. You'll always get directly to a lawyer – guaranteed.

California Criminal Jury Instructions – Planting, etc., Marijuana

To convict you under HSC §11358, the prosecution must prove the following beyond a reasonable doubt:

You unlawfully planted, or cultivated, or harvested, or dried, or processed one or more marijuana plants and knew that the substance with which you were involved was marijuana.

Example: Defendant Danni operates a business that produces natural salves for minor aches and pains. She employs Tetrahydrocannabinol (‘THC')[40] oils in creating her most popular product. Danni is on her way to Retailer with a supply of 100 tubes of the THC-based cream when she's stopped for a traffic violation. Police Officer sees the box of tubes, examines it, determines that Danni is processing marijuana and demands that Danni prove she has the right to do so. Danni is placed under arrest for violating HSC §11358(c) by processing marijuana as an adult when she can't produce documents that satisfy Police Officer's suspicions. Should Danni be convicted or acquitted of the charge on these facts?

Conclusion:  Danni was in possession of a substance she knew contained THC. THC is the major psychoactive ingredient in cannabis. (This fact is widely-known in itself.) But, while it can be argued that using oils in a product is ‘processing' of a sort, the statute specifically exempts oils from the definition of marijuana. Thus Danni hasn't illegally processed marijuana. Danni should be acquitted for this reason.

 

Possession for Sale of Marijuana

Possession for Sale of Marijuana (HSC §11359) occurs whenever anyone unlawfully possesses cannabis for sale. “Selling for the purpose of this [law] means exchanging the marijuana for money, services, or anything of value.”[41]

Since Possession for Sale of Marijuana can be prosecuted as a Misdemeanor or a Felony, depending on the facts of your case, the crime is considered a “wobbler”[42] in California. You can receive a Felony sentence for three or more violations of the statute, or for having a sex crime conviction on your record, or for selling or attempting to sell marijuana to someone under eighteen or for hiring someone under twenty to assist you in marijuana sales.[43]

Section 11359 is also punished under the state's “Three Strikes” system.[44] If you receive three “strikes,” you'll be sentenced to at least twenty-five (25) years in a state prison.[45] If you're convicted of Planting, etc., Marijuana, the penalty (without additional enhancement) may be:

  • A term of up to three (3) years in a state prison;[46] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[47]

More information can be found in the California Drug Sales/Transportation Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. You'll get directly to a lawyer – and that's a guarantee.

California Criminal Jury Instructions – Possession for Sale of Marijuana

To convict you under HSC §11359, the prosecution must prove the following beyond a reasonable doubt:

You unlawfully possessed marijuana and knew it was present. You knew that marijuana is a controlled substance. You intended to sell it or that someone else to sell it. There was, finally, a usable amount.

Example: Defendant Dave, twenty, purchases marijuana to sell to persons who aren't yet twenty-one. He stores an ounce of marijuana (broken into gram-sized bags) in Business Partner's garage. But Business Partner doesn't tell Dave when he later hides the marijuana bags inside Business Partner's SUV. Dave, who's at Business Partner's house one day when Business Partner isn't home, borrows the SUV from Wife. He's stopped soon after for speeding .Ticketing Officer smells marijuana, searches the vehicle, finds the marijuana and charges Dave with violating HSC §11359(b). Should Dave be convicted?

Conclusion: Dave purchased marijuana knowing that it wasn't legal to persons younger than twenty-one; thus Dave knew that he'd purchased a controlled substance. Since Dave was neither twenty-one nor a primary caregiver (see “Medical Marijuana,” below), he couldn't legally possess marijuana. An ounce of marijuana broken into gram-sized bags is both usable and it suggests the intent to sell the marijuana. These facts work in favor of conviction. But Dave had to have known, for purposes of the statute, that the marijuana was present at the time of his arrest. Dave actually borrowed the SUV without knowing about its contents because Business Partner didn't mention this to him. Thus Dave didn't know he was driving with marijuana present. Dave should be acquitted even though he intended on selling the marijuana because an element of the charge can't be proven beyond a reasonable doubt.      

Offering to Sell, Furnish, etc., Marijuana

Offering to Sell, Furnish, etc., Marijuana (HSC §11360(a)) is a crime involving transporting, importing, selling, furnishing, administering or giving marijuana away, or offering to give away marijuana.

As with similar offenses, Offering to Sell, Furnish, etc., Marijuana can be prosecuted as a Misdemeanor or a Felony, depending on the facts of your case. Thus it's considered a “wobbler”[48] crime in California.

You can receive a Felony sentence for three or more violations of the statute, or for having a sex crime conviction on your record, or for selling or attempting to sell marijuana to someone under eighteen, or for attempting to import more than 28.5 grams of marijuana (or four gram of hashish) for sale.[49]

Section 11359 is also punished under the state's “Three Strikes” system.[50] If you receive three “strikes,” you'll be sentenced to at least twenty-five (25) years in a state prison.[51] If you're convicted of Offering to Sell, Furnish, etc., Marijuana, the penalty (without additional enhancement) may be:

  • A term of up to three (3) years in a state prison;[52] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[53]

Note: Administering marijuana requires applying “it directly to the body of another person by injection, or by any other means, or” causing another “person to inhale, ingest, or otherwise consume” it.[54]

More information can be found in the California Drug Sales/Transportation Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call always goes directly to a lawyer – and that's our guarantee.

California Criminal Jury Instructions – Offering to Sell, Furnish, etc., Marijuana

To convict you under HSC §11360(a),[55] the prosecution must prove the following beyond a reasonable doubt:

You unlawfully sold, furnished, administered, or imported marijuana into California and knew of its presence. You also knew that marijuana is a controlled substance.

Example: Defendant Danica's elderly Grandfather is dying of cancer. Danica, a twenty-five-year-old resident of Los Angeles, knows that marijuana can help with some effects associated with Grandfather's chemotherapy. She buys an eighth of an ounce of marijuana and gives it to Grandfather. Neighbor sees her do so and reports Danica. She's arrested for violating HSC §11360(a)(2). Should Danica be acquitted?

Conclusion: Danica possessed marijuana and gave it to Grandfather. We can assume that she knew marijuana to be a controlled substance; the facts suggest nothing contrary. The facts do not, however, include reason to believe Danica had the legal right or obligation to provide marijuana to Grandfather. Thus she unlawfully furnished it to Grandfather and, obviously, knew it was present at the time. While Danica is a resident of Los Angeles who, we can assume, furnished the marijuana to Grandfather inside California, moving the marijuana into California isn't necessarily required to violate the statute. Danica, therefore, should be convicted even though she was doing something helpful for Grandfather.  

Employment of Minor to Sell, etc., Marijuana  

Employment of Minor to Sell, etc., Marijuana (HSC §11361(a)) is a crime involving a person eighteen or older hiring, employing, or using a minor to transport marijuana, give it away, prepare it for sale or sell it. The law also criminalizes selling cannabis to a minor, as well as furnishing, administering, giving, or offering to furnish, administer, or give, cannabis to a minor under fourteen. Finally, Section (a) also makes it illegal to induce a minor to use cannabis.

If you're convicted of Employment of Minor to Sell, etc., Marijuana, the penalty may be:

  • A term of up to seven (7) years in a state prison;[56] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[57]

More information can be found in the California Drug Sales/Transportation Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – that's guaranteed.

California Criminal Jury Instructions – Employment of Minor to Sell, etc., Marijuana

To convict you under HSC §11361(a), the prosecution must prove the following beyond a reasonable doubt:

You hired, employed, or used a person to transport, carry, sell, give away, prepare for sale, or peddle marijuana. You were also eighteen or older and the person hired was younger than eighteen at the time. Finally, you knew that marijuana is a controlled substance.

Example: Defendant Doug, seventeen, solicits a favor from his brother, Victim Victor, which involves Victor's selling two grams of marijuana to Junior High School Classmates at Public Park. Doug doesn't ordinarily employ Victor in sales but can't meet with Classmates because he's occupied doing something else at the time. But, when Victor is arrested and police learn that he was supposed to sell marijuana on Doug's behalf, Doug is arrested and charged under §11361(a). Doug insists that he's innocent because he doesn't actually employ his brother in drug sales. Should he be acquitted or convicted on these facts?

Conclusion: Marijuana is, obviously, a controlled substance in California. (This should be clear from the fact that there's a minimum age for legal use of cannabis in this state.) It's reasonable to assume that Doug knew this, considering that the facts suggest nothing otherwise. Doug, as the facts make clear, also asked his brother to sell marijuana on Doug's behalf. Victor, we can further assume, was younger than eighteen at the time of his arrest because Victor was going to sell the marijuana to his own Junior High School Classmates. These facts establish elements of the crime. But Doug was only seventeen when arrested; the statute requires that the accused be eighteen for a conviction. Doug, it follows, shouldn't be convicted under §HSC 11361(a) because an element of the accusation is missing from these facts.     

Driving with an Open Container of Cannabis

The crime of Driving with an Open Container of Cannabis (California Vehicle Code [CVC] §23222(b)(1))   occurs whenever anyone drives with “any receptacle containing any cannabis or cannabis products, as defined by Section 11018.1 of the Health and Safety Code, which has been opened or has a seal broken, or loose cannabis flower not in a container[.]”[58]  

If you're convicted of Driving with an Open Container of Cannabis, the penalty may be:

  • A fine of up to $100 (one-hundred dollars).

Note: The Code provision doesn't apply to anyone “who has a receptacle containing cannabis or cannabis products that has been opened, has a seal broken, or [a receptacle] the contents of which have been partially removed, or to a person who has loose cannabis flower not in a container, if the receptacle or loose cannabis flower not in a container is in the trunk of the vehicle.”[59]

More information can be found in the California Driving Under The Influence Of Drugs Attorneys section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that's our guarantee.

California Criminal Jury Instructions – Driving with an Open Container of Cannabis

To convict you under CVC §23222(b)(1), the prosecution must prove the following beyond a reasonable doubt:

You possessed on your person a receptacle containing a cannabis or cannabis product. The container also had been opened or had a seal broken, or there was loose cannabis flower not in a container, while you were driving a motor vehicle.

Example: Defendant Dominique has a quarter-ounce of marijuana in a container with a broken seal. She keeps it in her backpack. She's on her way to visit Friends in Malibu for the weekend and puts the backpack in her trunk. Dominique is stopped for a traffic violation soon after. Officer asks to search her trunk. Dominique gives permission. Officer finds the backpack, searches it, and arrests Dominique for violating CVC §23222(b)(1). Should Dominique be convicted on these facts?

Conclusion: Dominique had a container of marijuana in her vehicle while driving. The marijuana container had a broken seal. But the container had to be on her person in order to violate the law, while the Code Section goes as far as providing a ‘safe harbor' for those who keep open containers in their trunks. Therefore, while Dominique was driving with a container of marijuana with an open seal, she should be acquitted of violating CVC §23222(b)(1).

What Can I Do If I'm Charged With Possession of Marijuana?

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The State of California regards drug crimes as serious offenses. If you're charged with Possession of Marijuana, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. 

If you or someone you know has been arrested or charged with Possession of Marijuana, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.                                    

References

[1]  “The People do not need to prove that” you “knew which specific controlled substance [you] possessed, only that” you were “aware of the substance's presence and that it was a controlled substance. [¶] Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person. [¶] Agreeing to buy a controlled substance does not, by itself, mean that person has control over that substance.” See California Criminal Jury Instructions 2375 (CALCRIM) (2017).

[2] “Marijuana means all or part of the Cannabis sativa L. plant, whether growing or not, including the seeds and resin extracted from any part of the plant. It also includes 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.” See California Criminal Jury Instructions 2375 (CALCRIM) (2017).

[3] “Concentrated cannabis means the separated resin, whether crude or purified, from the cannabis plant.” See California Criminal Jury Instructions 2377 (CALCRIM) (2017).

[4] See “Bench Notes,” California Criminal Jury Instructions 2375 (CALCRIM) (2017).

[5] The CALCRIM instructions refer to a different subpart (HSC §11357 (d)) owing to a mistake in labeling. The instructions summarized actually refer to the offense created in Section (c).    

[6] See HSC §11357 (c).

[7] See California Criminal Jury Instructions 2376 (CALCRIM) (2017).

[8] See HSC §11357 (d).

[9] See Endnote 6.

[10] See HSC §11357 (a) (1) (A).

[11] See HSC §11357 (a) (1) (B).

[12] See HSC §11357 (a) (2).   

[13] See HSC §11357 (b) (1) (A).

[14] See HSC §11357 (b) (1) (B).

[15] See HSC §11357 (b) (2).  

[16] See HSC §11357 (c) (1).

[17] See HSC §11357 (c) (2).

[18] See HSC §11357 (d).

[19] See Endnote 14.

[20] Devlin should instead be charged under HSC §109575.

[21] Fact pattern inspired by the case of Terry v. Ohio, 392 US 1 (1968). [Terry alleged that ‘stop and frisk' based on alleged suspicious behavior violated constitutional protections; Sup.Ct. held for State of Ohio.]

[22] See HSC §11362.5

[23] See HSC §§11362.7 (h) (1) – (12) (B).

[24] Medical marijuana identification cards are not available in Colusa and Sutter counties. 

[25] See HSC §§11362.79 (a) – (e).

[26] See HSC §§11362.7 (d) (1) – (3), (e).

[27] See HSC §11362.71 (e).

[28] See HSC §§11362.765 (a), (b) (2) – (3), (c).

[29] See HSC §11359.

[30] See HSC §11360.

[31]  See HSC §11361.8.

[32] See California Criminal Jury Instructions 2370 (CALCRIM) (2017).

[33] See “Wobbler” definition at USLegal.com.  

[34] See HSC §§11358 (d) (1) – (3) (A) – (G).

[35] See California Penal Code [CPC] §1170 (h) (1). [Amended (as amended by Stats. 2018, Ch. 36, Sec. 17) by Stats. 2018, Ch. 1001, Sec. 1. (AB 2942) Effective January 1, 2019.]

[36] See CPC §667 (e) (2) (A) (ii).

[37] See Endnote 35.

[38] See CPC §672.

[39] See Endnote 32. 

[40] See “Tetrahydrocannabinol” at Wikipedia.org.

[41] See California Criminal Jury Instructions 2352 (CALCRIM) (2017).

[42] See Endnote 33. 

[43] See HSC §§11359 (c) (1) - (3), (d).

[44] See Endnote 35.

[45] See Endnote 36.

[46] See Endnote 35.

[47] See Endnote 38.

[48] See Endnote 33. 

[49] See HSC §§11360 (a) (3) (A) – (D).

[50] See Endnote 35.

[51] See Endnote 36.

[52] See Endnote 35.

[53] See Endnote 38.

[54] See California Criminal Jury Instructions 2350 (CALCRIM) (2017).

[55] Alternate jury instructions addressing “Offering to Transport or Give Away Marijuana: More Than 28.5 Grams” can be found in California Criminal Jury Instructions 2363 (CALCRIM) (2017).  

[56] See HSC §11361 (a).

[57] See Endnote 38.

[58] See California Vehicle Code [CVC] §23222 (b) (1).

[59] See CVC §23222 (b) (2).

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