The passage of Proposition 64 in California saw the legalization of marijuana for recreational use. The law only allowed possession of marijuana for personal use, meaning that possession for sale without a license was restricted. If you are found illegally possessing marijuana for sale, you might face a maximum of six months in jail and a maximum fine of $500. You should hire a professional criminal defense attorney to help you build suitable defenses that would dismiss or reduce your case to a lesser charge. If you are seeking legal services, contact us at the Orange County Criminal Defense Attorney Law Firm for a detailed review of your case to get the best possible results.

Legal Definition of Possession of Marijuana for Sale in California

Possession of marijuana for sale is made illegal in California under the California Health and Safety Code 11359. Under this law, possessing any usable amount of marijuana even less than an ounce would provide evidence that would see you prosecuted for possessing marijuana for sale.

The prosecutor has to prove several aspects to charge you under this statute successfully. These aspects are referred to as the elements of the crime and are as follows:

  • You possessed a controlled substance.
  • You were aware of its presence.
  • You knew that the substance was a controlled substance.
  • You had the intention to sell it illegally.
  • The controlled substance was marijuana.
  • The substance was a usable amount.

Here is a closer view of these elements of the crime in detail.

How Marijuana is Defined in California

The legal definition of marijuana is highlighted under California Health and Safety Code 11018. Under this statute, marijuana is described as all parts of Cannabis sativa L., whether it is growing or not. Therefore, we can conclude that marijuana includes the seeds, leaves, resin extract from any part of the plant, and the compound derived from the plant, its seeds, or resin. 


When it comes to defining possession, California laws assume that possession can be actual, constructive, or joint ownership.

In actual possession, it means that you were holding it or in something that you were wearing or carrying, such as your pocket or gym bag. You can also have actual possession of the drug even when you are sharing the object that you are keeping or hiding the drug with someone else.

Constructive possession means that you have no touch or hold of the drug, or have it on you. However, you exercise control over it while in a different location or have the right to control it. For instance, if you grow marijuana in your backyard, you have constructive possession, even if it is confiscated while you are not at home.

You can also have constructive possession of the drug if you exercise its ownership through another person, such as an agent. For instance, if you own a commercial marijuana growing operation and hire another person to operate its daily sale, you have a constructive possession since you have the authority to control it through another person. 

Finally, joint possession means that you and another party has authority over marijuana. Therefore, both of you can exercise control over its sale, manufacture, and harvest.

Knowing the Presence of the Marijuana

Under Health and Safety Code 11359, the mere right to control marijuana cannot make you guilty of possessing marijuana for sale. Therefore, you should also know about the presence of the pot to be prosecuted under this statute. For instance, if you are living with a friend and are unaware of the substance inside the bag placed in your shared apartment’s closet to be marijuana, you will not be found guilty under California Health and Safety Code 11359. However, if the police confiscate the marijuana in a common area such as your kitchen cabinet other than a private place like your friend’s bedroom, it would increase the possibility that it was yours. 

Knew that You Had a Controlled Substance

Besides having the right to control or knowing the presence of marijuana, you should also know you had a controlled substance to be prosecuted under Health and Safety Code 11359. One of the facts that the prosecutor can use to prove that you knew you possessed a controlled substance is your reaction at the time of the arrest.

For instance, if you try to hide a small baggie that contains the marijuana while you saw the police approaching you or were unusually nervous when the police started questioning you, this can be used to demonstrate your knowledge about the controlled substance.

Intention to Illegally Sell the Marijuana

Under California Health and Safety Code 11359, the sale of marijuana means exchanging marijuana for money, services, or anything that is of value. For instance, you can give another person marijuana in exchange of:

  • Paying up a debt
  • Other drugs
  • An apartment
  • Sex
  • Services such as cleaning your apartment, and so on

Since marijuana was legalized in 2016, marijuana possession for sale can be illegal if you had the intention to sell outside the legal and licensed marijuana sales scheme. Some of the unlawful platforms include the black market.

The sale of marijuana can be proven through direct and circumstantial evidence. For direct evidence, your intent to sell the drugs can be determined through your statement or when an officer sees you exchange marijuana for valuables or money. 

In circumstantial evidence, the prosecutor should prove that all circumstances surrounding your arrest demonstrate that you had the intention to sell the drugs. Your attorney can easily win a case that has been based on circumstantial evidence since its facts are usually weak.

When the prosecutor is considering circumstantial evidence to prove your criminal activity, he or she can rely on the following:

  • Having an excess amount of marijuana
  • Presence of equipment such as baggies and scales
  • Presence of your marijuana in a place such as the black market or other platforms where the illegal sale of drugs takes place
  • The packaging of the substance such as in multiple containers or baggies with equal amounts of marijuana
  • The discovery of weapons or cash along the marijuana
  • Opinion from an expert witness that the marijuana was for sale

Here is a detailed view of the above-stated aspects that a prosecutor would use as circumstantial evidence.

  1. Quantity of Marijuana

California Health and Safety Code 11359 does not highlight anything to do with the quantity of marijuana that can hold you responsible for possessing marijuana for sale. However, you can still be prosecuted for a specific amount if it is quite high such as five to ten pounds. Therefore, those legally entitled to use medicinal marijuana might be forced to defend the high amount of marijuana they possess.

  1. Packaging of the Marijuana

Most people who possess marijuana for personal use keep it in a container. However, if marijuana is packed in baggies or small containers, especially with similar weights and sizes, this might raise suspicion that it is intended for sale.

Although storing your pot in similar-sized containers or baggies might seem suspicious, there are several valid reasons for storing marijuana in this way. This includes:

  • Buying marijuana for personal use in separate containers
  • Storing different varieties of marijuana in separate containers
  • Storing the pot in separate containers for rational daily use
  1. Presence of Weapons and Cash

Storing a large amount of cash in your home is not illegal. However, it might be illegal for some people to have weapons in their homes. Therefore, if marijuana, a large amount of cash, and guns are confiscated from your home, this might raise strong suspicion that you are involved in the sale of the drugs. The prosecutor might heavily rely on this evidence when you cannot explain why there is a lot of cash in your home.

  1. Presence of Drug Paraphernalia

The presence of drug paraphernalia or apparatus can also confirm that you possess marijuana for sale. Some of the typical instruments used in drug peddling include a weight scale, material to wrap the substance in small baggies, containers to conceal the drugs, and so on. 

  1. You were Under the Influence

The fact that you were under the influence of marijuana during arrest might indicate that it is for your personal use. This fact might not be mutually exclusive that you had the intention to sell the drugs, but it would prove that you are both a seller and a user of the drug.

The Substance was Marijuana

You need to have marijuana under your possession to be prosecuted under California Health and Safety Code 11359. Therefore, you cannot be found guilty of possessing marijuana with intent to sell if you have a different drug other than pot.

Usable Amount of Marijuana

To be guilty of California Health and Safety Code 11359, you must have a usable amount of marijuana under your possession.

Under California drug laws, a usable amount is defined as a quantity enough to be used by someone else as a controlled substance. It does not have to be enough in its amount or strength to get someone high.

Therefore, if the police find some debris or traces of pot, you cannot be charged under California Health and Safety Code 11359, even when several items prove your involvement in the sale of marijuana.

Penalties for California Health and Safety Code 11359

Violation of Health and Safety Code 11359 might subject you to a misdemeanor and felony charges. For a suspect to be charged with a misdemeanor or felony, several aspects must be considered. Let’s have a closer look at the misdemeanor and felony penalties for possessing marijuana for sale.

Misdemeanor Penalties for Marijuana Possession for Sale in California

Most convictions under Health and Safety Code 11359 are usually misdemeanors. A misdemeanor charge would attract sentencing in a county jail for a maximum of six months and a maximum fine of $500.

Felony Penalties for Marijuana Possession for Sale in California

After the passing of Proposition 64  in California, felony penalties would be imposed on people who possessed marijuana for sale under the following circumstances:

  • If the defendants have prior convictions for any violent felony such as sexually violent offenses, sex crime against a minor, gross vehicular manslaughter while intoxicated, or any sex crime that requires the defendant to register as a sex offender
  • If the defendant has two or more prior misdemeanor conviction under Health and Safety Code 11359
  • The defendant intended to sell marijuana to someone below the age of 18 knowingly.

If any of the above-stated scenarios are correct, you might face 16 months, 2, or 3 years in county jail.

Please note that drug diversion does not apply to a person convicted of possessing marijuana for sale. Drug diversion is only available for excessive possession of marijuana, cultivation of marijuana for personal use, or use of more marijuana than the permitted amount under California law. Therefore, it would be suitable to negotiate for a less severe charge, such as simple possession, to take advantage of drug diversion programs in place of jail time. 

Possibility of Serving Probation Other than Jail Time

You can be eligible for summary probation rather than serving a jail term for possessing marijuana for sale. If you are granted probation, you will not serve jail time for Health and Safety Code 11359. However, you will be expected to adhere to certain restrictions that include:

  • Participating in a group or individual therapy
  • Community labor or service
  • Submission to regular drug testing
  • Unwarranted searches in your property or on your person

Defenses to Possessing Marijuana for Sale Charges

Your criminal defense attorney can utilize different strategies to defend your possession of marijuana for sale charges. Your attorney should carefully review all possible defense strategies and use those that can effectively address the charges presented by the prosecutor. Here are some of the suitable defenses that your attorney can consider.

Possession of Marijuana for Personal Recreational Use

Since Prop 64 is in effect, you can possess marijuana for recreational use. However, there is a limit when it comes to the amount of marijuana that you can own. Under Prop 64, you can only possess a maximum of 28.5 grams, 8 grams of marijuana concentrate, or a maximum of six plants. Therefore, if the amount of pot that was confiscated from your house falls under any of the stated amounts, then you cannot be prosecuted for possessing marijuana to sell.

Possession of Marijuana for Medicinal Purposes

Suppose you are a patient who relies on medical marijuana or a caregiver who caters to a person relying on medicinal marijuana. In that case, you can legally possess a reasonable amount of marijuana due to medical purposes. However, it is recommendable to have the right documents that show your condition and the need to use marijuana for your treatment to rely on this defense strategy. 

You are a Licensed Marijuana Seller

Sometimes you might be mistaken to be an illegal marijuana seller leading to your arrest for possessing marijuana for sale. If you are illegally prosecuted for selling marijuana, you need to produce your trading license to prove that you are a legalized marijuana trader. Ensure that the license is up-to-date, and your business meets all the regulations and requirements necessary for its operation. 

The Marijuana Was Not for Sale

Arguing that the marijuana in your possession was not for sale can also be a suitable defense for your allegations. You can rely on this legal defense if all circumstances surrounding your arrest does not point out that you possessed the substance for sale. For instance, the lack of drug paraphernalia and other evidence that explains the sale of marijuana demonstrates that you were not involved in the sale of the drug. Therefore, if such proof cannot be found, the prosecutor will have to drop your case or charge you with a less severe marijuana-related allegation.

Evidence Was Acquired Through Illegal Search or Seizure

The Fourth Amendment highlights several constitutional rights that all American citizens have, during their arrest. Under this amendment, one of the aspects that should be considered is the use of a warrant of arrest. If the law enforcement officers arrest or search your house without a court order, the prosecutor can dismiss your case. Other ways that demonstrate instances of police misconduct include forcible investigations and denial of legal representation, whereas you have requested for an attorney of your choice.

You Were Not Aware That You Possessed Marijuana

As stated above, you cannot be charged for possessing marijuana for sale if you are not sure about the substance in your possession. For instance, you can mistake a bag that contains marijuana to be yours and end up being prosecuted for marijuana possession with the intent to sell. If your arrest was under such circumstances, you could have your case dismissed, especially if you have no prior marijuana or drug-related offenses.

Lack of Enough Evidence

Lack of enough evidence can be suitable if your prosecutor relies on circumstantial evidence while charging you under Health and Safety Code 11359. Circumstantial evidence is not as reliable as direct evidence and can be easily challenged by a professional criminal attorney. Your attorney should evaluate the prosecutor’s evidence and find weak areas that are easy to challenge.

You Intended to Dispose of the Marijuana

It is easier to have your charges dismissed if you were arrested for possessing marijuana with the intent to sell, whereas you were disposing of it. This means that you probably mistook a particular substance and decided to dispose of it once you realized it was marijuana. Therefore, the prosecutor should dismiss your case unless you had no genuine reason to dispose of the drugs, especially if you were about to be arrested, which might be assumed that you were trying to conceal it. 

Crimes Related to Possession of Marijuana With the Intent to Sell in California

There are several crimes related to possession of marijuana for sale. Your attorney can use them to reduce your charges with a marijuana-related crime if it attracts less severe penalties. Let’s have a closer look at these crimes. 

California Health and Safety Code 11357: Simple Possession of Marijuana

Under California Health and Safety Code 11357, it is illegal for a person over the age of 21 to possess more than 28.5 grams of marijuana or 8 grams of its concentrate.

Possessing more than the required grams of marijuana is a misdemeanor with a potential punishment of six months in county jail and a maximum fine of $500.

If someone below 21 years possessed marijuana, the offense becomes an infraction. 

California Health and Safety Code 11358: Illegal Cultivation of Marijuana

Under California Health and Safety Code 11358, any California adult aged 21 or above can cultivate, harvest, or process a maximum of six plants of living marijuana plants without breaking the law. This came into effect after the amendment of Prop 64.

If someone is found to be planting more than six plants, this becomes a crime. This becomes a misdemeanor with a potential punishment of 6 months in county jail and a maximum fine of $500.

The crime can become a felony if you have a history of serious violent felonies, are a registered sex offender, and have two or more prior convictions of the same crime. You can also be prosecuted with a felony if you violated specific environmental laws during your marijuana cultivation.

California Health and Safety Code 11360: Illegal Sale of Marijuana

According to Prop 64, you can only sell marijuana if you have a valid license. Therefore, if you do not have a permit, you can be convicted with a misdemeanor or felony, depending on different circumstances.

The penalties for a misdemeanor includes a maximum of six months in county jail and a maximum fine of $1,000.

The penalties for a felony depends on whether:

  • you have prior sex crimes or felonies
  • If you have two or more prior convictions for the transportation and sale of marijuana
  • Whether you knowingly sold the pot to someone below 18 years
  • If you were involved or attempted to transport more than 28.5 grams of marijuana out of California for sale

Find a Criminal Attorney Law Firm Near Me

If you are facing an accusation of marijuana possession with the intent to sell, you should contact an experienced defense lawyer who is familiar with marijuana-related cases. At the Orange County Criminal Defense Attorney Law Firm, we have established a strong record in lawsuits related to marijuana possession for sale and other related cases by achieving remarkable outcomes. We are ready to evaluate your situation and identify prejudicial errors that would uncover technicality that would help you receive a reduced sentence or dismissal of your charges. For more information, contact us at 714-740-7848 for a free consultation.