Possession for Sale

California Health & Safety Code § 11359 b MISDEMEANOR

LAW: POSSESSION FOR SALE IS A MISDEMEANOR UNDER MOST  

CIRCUMSTANCES: To sell means to exchange any amount of marijuana or  hashish for anything of value. Note that “giving away” up to an ounce of marijuana  is legal in the State of California involving adults over the age of 21. Refer to  “Medical Marijuana Laws” on pages 15-16 to learn more the laws regarding  patients, collectives, cooperatives, etc.  

PENALTY: Possession of any amount for adults over 18 with the intent to sell is  punishable by up to 6 months of jail, a $500 fine, or both. Persons under 18 who  possess for sale requires participation in drug education/counseling, and community  service over a limited period of time. Felony offenses remain in effect for those who  involve minors, caused toxic or hazardous substances, watershed/environment  harm, are registered sex offenders, export out of state, export more than 28 grams, or have prior super strike, face  16 months to 3 years, unless probation is granted. (See Penal Code 667 for definition of Super Strikers i.e. robbery  is not a Super Strike). Persons who have 2 or more prior marijuana convictions for possession for sale potentially  face a wobbler (felony or misdemeanor), punishable by county jail of up to a year, or three years in prison. 

Note from Bruce: Suspects are often arrested and even charges with felonies , even though the suspect’s offense  may qualify to be reduced to a misdemeanor. The defendant may make a motion to reduce to misdemeanor  under Prop 64 if a felony complaint is filed by district attorney 

Non-citizens (Including Green Card Holders), any conviction for possession for sale or even simple possession  of over 30 grams is a deportable offense and will result in deportation, exclusion from admission or reentry to  United States, denial of naturalization, and amnesty. 

Note from Bruce: Concerning What Can Be Proof Of Intent to Sell: A police officer’s opinion alone, that  the marijuana possessed is for sale rather than for personal use can be enough to establish guilt of intent to  sell. Their opinions are usually based on the quantity of marijuana, the number of packages, the presence of  packaging material (baggies), the presence of large amounts of money, scales, ledgers (pay and owe notes),  cell phones, pagers, foot traffic to and from the premises, incriminating text messages and/or statements by  witnesses or the defendant.  

The defense has the right to present his/her own expert to testify that the amount of marijuana and other factors  are consistent with personal use as opposed to possession for sale. The defendant may also choose to testify on  his/her behalf and to call other witnesses in order to defeat an allegation that the marijuana was for sale rather  than personal use.  

MY office has access to court qualified cannabis experts to testify on behalf of the defense. I am also the director  of the National Institute of Court Qualified Cannabis Experts. For those interested in becoming an expert contact  me at bmargolin@margolinlawoffice.com, or call me.  

A SEARCH WARRANT FOR THE RESIDENCE MAY BE OBTAINED NO MATTER WHERE THE BUST TAKES  PLACE: No matter where the location of the arrest for possession for sale takes place (it can even be a car 100s  of miles away), police may still be able to obtain a search warrant for the defendant’s residence.  

THE NUMBER OF PACKAGES AND THEIR SPECIFIC WEIGHTS: The number of packages seized is often  the controlling factor relied upon by the prosecution. For example, a half pound of marijuana in one package  may be charged as simple possession; however, the same 8 ounce package separately will often be charged as  possession for sale, especially if the packages are in specific weights (eights, ounces, quarter pounds).  

Note from Bruce: on Second and Third Strike Laws and felony marijuana convictions: A strike is a serious  or violent felony offense. Marijuana offenses do not count as “strikes.” However, any felony marijuana conviction  with one or more prior strikes mandates no probation and doubles the time. Note that the judge may set aside  a previous strike at the time of the sentencing (Romero Motion). Example: Transportation of more than a ounce  is a felony, when done by exporting/importing across California’s border i.e. mailing or federal express weed to 

other states .