As readers will know, marijuana possession and use by adults was largely made legal recently by the California voters through Proposition 64.
There are, however, many exceptions to legalization and there is still a substantial amount of marijuana-related conduct which can subject a California resident to criminal prosecution.
California Health and Safety Code Section 11360 defines the drug crime of unlawful marijuana sales.
While HS 11360 is colloquially known as the marijuana “sales” prohibition, the statute is actually broader than simply a ban on sales.
Under HS 11360, a defendant can be prosecuted for selling, giving away, importing into the state, or transporting for sale any amount of marijuana.
This includes marijuana concentrates such as hash oil and edible forms of marijuana such as brownies, gummies, etc.
Accordingly, even if an individual is distributing marijuana for purely charitable reasons with no expectation of making a profit, they can still be prosecuted for a violation of Health and Safety Code Section 11360's prohibition on marijuana sales.
There is a distinction between possession for sales of marijuana and actually selling it.
California Health and Safety 11360 could be prosecuted as a felony and punished by up to four years in county jail. If the sales are made to a minor, the punishment can increase to up to seven years in state prison.
However, it should be noted that most HS 11360 marijuana sales cases are now prosecuted as a misdemeanor crime. Vehicle Code 23222(b) VC makes it a an offense for a driver to operate a motor vehicle while in possession of an open container of marijuana.
What Must a Prosecutor Prove?
California Health and Safety Code 11360 defines the crime of selling marijuana:
- Any person who transports, imports, sells, furnishes, administers, or gives away, or offers to do the same, or attempts to import into this state or transport any cannabis.
In order to be convicted of HS 11360, the prosecutor must be able to prove, beyond a reasonable doubt, the following elements of the crime, that a defendant:
- Sold, furnished, administered, imported, transported, or gave away marijuana;
- Knew of its presence and nature as a controlled substance;
- There was a usable amount of the controlled substance.
For more information, see CALCRIM 2360, transporting or giving away marijuana not more than 28.5 grams.
CALCRIM 2361, transporting or giving away marijuana more than 28.5 grams.
CALCRIM 2352, possession for sale of marijuana.
CALCRIM 2351, offering to sell or furnish marijuana.
CALCRIM 2363, offering to transport or give away marijuana.
Penalties for HS 11360 Marijuana Sales
Since Proposition 64 passed, most marijuana sales cases are handled as misdemeanors rather than felonies, as was more typical previously. A misdemeanor violation of Health and Safety Code Section 11360 carries the following penalties:
- A maximum of six months in county jail,
- A $500 fine, or both the fine and imprisonment.
However, there are still a set of relatively common circumstances under which a marijuana sales case under Section 11360 can be prosecuted as a felony.
- First, if the defendant has at least two prior convictions for marijuana sales or transportation, the third prosecution under Section 11360 can be brought as a felony.
- Second, if the defendant imported into California or exported out of California over 28.5 grams of marijuana or more than 4 grams of concentrated cannabis, such as hash, the violation even for a first offense can be a felony.
- Third, if the defendant sold to, or attempted to sell to, minors under the age of 18, a first violation can be a felony.
- Finally, felony charges may be brought against defendants who have prior convictions for certain serious felonies such as murder, rape, child molestation, or any other sex crime which requires registration as a sex offender under Penal Code Section 290.
Felony convictions under Health and Safety Code Section 11360 may result in much more severe punishment than misdemeanor convictions under the same section. A felony violation of HS 11360 can be punished by:
- Two, three, or four years in California's state prison,
- The imposition of a $10,000 fine.
Also, a felony conviction will result in a lifetime ban on owning or possessing a firearm and a defendant is not eligible for a drug diversion program.
Related California Offenses for HS 11360
- Health and Safety Code 11357 – Possession of Marijuana,
- Health and Safety Code 11358 – Marijuana Cultivation,
- Health and Safety Code 11359 – Possession for Sale of Marijuana,
- Health and Safety Code 11361 – Selling Marijuana to a Minor,
- Health and Safety Code 11351 – Possession for Sale a Controlled Substance,
- Health and Safety Code 11352 – Sale or Transportation of a Controlled Substance,
- Health and Safety Code 11366 – Operating a Drug House,
- Health and Safety Code 11370 – Possession of Drug Money.
Fighting HS 11360 Marijuana Sales Charges
Several defenses are commonly asserted in both misdemeanor and felony-level prosecutions for marijuana sales under Section 11360.
Some are unique to marijuana offenses given the quasi-legal status of marijuana use and the medical marijuana regime prevalent in California.
For instance, the defendant can prove that they are a permitted caregiver who is allowed under state law to possess marijuana for sale to qualified patients. The defendant can also argue personal use rather than possession or transportation for sale as adults over 21 are legally permitted to use marijuana themselves without a permit or prescription, unlike most controlled substances in the state.
If this defense is asserted, the prosecution must prove their case by pointing to other indicia of sales such as the quantity of the marijuana possessed, the presence of large amounts of cash, the presence of drug sales paraphernalia such as baggies and scales, and other factors.
Because of the possessory nature of the crime, marijuana sales cases also often involve litigation over illegal searches and seizures. Everyone in the United States has a right to be free from unreasonable search and seizure by law enforcement of their person or property.
Where the evidence necessary to convict the defendant – in this case, marijuana – is seized by the police without a valid search warrant, the government must establish that one of the recognized exceptions to the warrant requirement applies.
If the defense successfully litigates a motion to suppress based on the warrantless search, the case will likely be dismissed.
If you or a family member is charged with unlawful marijuana sales in violation of California Health and Safety Code Section 11360, contact our team of experienced criminal defense attorneys for an initial consultation.
We can advise you on the steps to take, including before the case goes to court in a prefiling intervention, to protect your rights and secure the best possible outcome in your case.
Eisner Gorin LLP is a top-rated criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067.
Our main office is next to the Van Nuys Superior Court at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact our firm for a consultation at (310) 328-3776.