California Health and Safety Code 11359 HS makes it illegal to possess any amount of marijuana with the intent of selling it. Unlike simple possession of marijuana for personal use — which is usually a non-criminal infraction — violation of HS 11359 is a California felony.
Consequences of possessing marijuana for sale
The penalty for HS 11359 or possessing marijuana with intent to sell is:
- 16 months, or two or three years in county jail;
- In addition, there are serious collateral consequences of a California felony conviction. One of the most important is that you will be legally obligated to disclose the conviction if asked on a job application. This can affect your licensing and future job prospects for life.
Probation instead of jail time
If you have very little or no criminal history and if there are other favorable factors, you may be eligible for felony probation, or formal probation, but over time it could be converted to informal.
If you are sentenced to felony probation, you may receive little or no jail time. But you may be subject to certain requirements or restrictions, such as:
- Regular meetings with your probation officer,
- Drug testing,
- Community service, and/or
- Warrantless searches of your person or property.
Would you be eligible for drug treatment in lieu of jail time?
You are not eligible for drug diversion (treatment) if you are convicted of possessing marijuana for sale. Drug diversion is available only for simple possession or cultivation of marijuana for personal use.
However, under certain circumstances it is possible for our highly skilled criminal defense attorneys at Fiumara & Milligan Law, PC to get the charges reduced to simple possession, for which diversion is available.
For a Health and Safety Code 11359 conviction, the prosecutor must prove that:
- You possessed a usable quantity of marijuana;
- You knew of its presence and its nature as a controlled substance; and
- You intended to sell the marijuana.
The most difficult element for the prosecutor is proving your intent to sell. Intent may be established through direct or circumstantial evidence, including:
- Your statements (such as “I have some pot to sell”), or
- An offer to sell marijuana to someone.
Circumstantial evidence (“indicia of sale”)Your cell phone records,
- The amount of marijuana seized is larger than a couple of ounces,
- The pot is packaged in several small containers or baggies,
- Equipment such as scales and baggies was found with the pot,
- You are found in a place where drug deals are often carried out,
- You are found with no paraphernalia and you aren’t stoned or high,
- You keep a lot of cash and/or weapons near the marijuana,
- You have a past history of selling drugs, or
- The police witness you engaging in a transaction in which marijuana and something of value changes hands.
Negotiating a lesser charge is one option in lieu of a full acquittal at trial
Often, our experienced and highly skilled North Bay California criminal defense attorneys at Fiumara & Milligan Law, PC can get HS 11359 charges reduced to simple possession of marijuana under California Health and Safety Code 11357.
The benefits of a charge of simple possession over possession for sale include:
- No jail time, or much less jail time;
- If charged as an infraction, no need to disclose it on a job application, and
- If charged as a misdemeanor, misdemeanor (informal) probation rather than formal probation is so much less onerous and demanding
Defenses to possessing marijuana for sale in California
There are a quite a few Defenses to possession of Marijuana for sale in California under California Health and Safety Code 11359 HS.
Some of the most common defenses are:
- You didn’t know the pot was there,
- The pot was for your personal use,
- The pot was for the personal use of a medical marijuana patient for whom you are the primary caregiver,
- You were planning on sharing some of the pot with friends,
- You were disposing of the marijuana, or
- The marijuana was found during an illegal search.
People who possess marijuana for personal use can easily find themselves unjustly charged with intending to sell it.
When you are facing substantial jail time, or other severe penalties you should consider:
- Always a Free Consultation at Fiumara & Milligan Law, PC
- Please call North Bay attorneys at Fiumara & Milligan Law, PC 24/7 at (707) 571-8600 in our centrally located Santa Rosa office in Sonoma County or call our office in San Rafael in Marin County at (415) 492-4507 to schedule a free and confidential consultation to keep you out of jail. If you call after hours, our operators will gladly connect you to one of our experienced and compassionate attorneys 24/7.
- “The Right Attorney Makes All the Difference.”