Possession of marijuana for sale is a serious offense in California that could lead to huge fines or jail terms. The health and safety code clearly warns against doing so. For this reason, you should find an experienced attorney to represent you when facing charges. At The Los Angeles Criminal Defense Attorney Firm, we have thoroughly trained attorneys who have helped clients facing drug crimes for many years. Our attorney will discuss the case with you and go through all the facts to develop the right defense. We will represent you in any Los Angeles court and ensure you avoid harsh penalties.
Definition of Possession of Marijuana for Sale According to California Law
Even though marijuana has been legalized in California since 2016 for recreational use, it is a crime to possess the drug for sale according to the Health & Safety Code 11359 HS. The statute allows you to possess marijuana for personal use, not for sale. If convicted, you could face serious criminal charges with hefty penalties. However, there are exceptions to this law. These exceptions are selling the drug to persons aged 21 years and above only by the business permitted to sell recreational drugs and selling medical marijuana per California law.
The Health and Safety section code 11018 describes marijuana as any part of the Cannabis Sativa plant: seeds, leaves, resins from the plant, and any compound or mixture derived from the plant. Federal law, which can take precedence over California Law, is also against the possession of marijuana for sale. United States Code 21 USC Title 21 sets forth the Controlled Substances Act and classifies marijuana as a hallucinogenic drug that can be potentially abusive, and it's not currently for medical use. Title 21 USC 841 (a) warns against possessing the drug to sell it.
The Arrest Process
When a police officer receives information that you have marijuana and intends to sell it, or he spots you selling it, he will arrest you. Even though police should inform you of your Miranda rights, sometimes they don’t. When interrogating you, the police may try tricking you into making self-incriminating statements, putting your freedom at risk. Ensuring your attorney is present will guarantee that the police read you your rights. The Miranda rights are fifth amendment protection for suspects against self-incrimination.
These rights include:
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The Right to Remain Silent
You have the right not to speak to the arresting officer or any other officer. If you had given your statement before being advised of this right, your attorney could argue that the statements are inadmissible.
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Anything You Say Before the Police Can and Will Be Used Against You
It is your right not to speak. However, if you waive this right and choose to talk to the officer, your statement will be used as a prosecutor's evidence against you in court.
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It is Your Right to Have Legal Representation
.It is your constitutional right to have an attorney represent you in court or during an interrogation. The police will not question you without your lawyer unless you waive the right
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If You Don't Have Money to Hire an Attorney, the Government Will Provide One.
Sometimes suspects don't have money or resources to hire private lawyers. In this case, the government appoints one
It is important not to argue with the arresting officer during the arrest. If you do, the act will be considered as resisting arrest. Resisting arrest is unlawful and can be added to your charges. If you confessed or made any statements before the police read your rights, your attorney can challenge them and be dismissed. In some instances, suspects can surrender themselves at the station, in such a case, they won’t be put under arrest or even have their rights read to them.
What the Prosecutor Must Prove
In any criminal case, including possession of marijuana for sale, the burden of proof is with the prosecutor. Before being arrested for this crime, the police and prosecutor must prove that you intended to sell marijuana. The prosecutor must prove that you are indeed guilty of the crime. One of the ways the prosecutor can prove this is by showing the following elements exist:
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You Had Marijuana in Your Possession
The prosecutor must show that you indeed had the drug with you during your arrest. There should be either active, constructive, or joint possession. If you were holding the drug in your hand, that is active possession. If you have the drugs hidden in a house and have access or control over it, that’s constructive possession. Joint possession is sharing ownership with someone else.
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You Had a Large Usable Amount of Marijuana with You
It should also be proven beyond a reasonable doubt that the amount of marijuana you had was large enough to sell and be consumed as a controlled substance.
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You Knew About Marijuana in Your Possession
The prosecutor should show you were aware that you had the drugs with you either in your hand or stashed in your property. They should also show that you knew the drug was marijuana. He can achieve this by showing the court that you knew its name, composition, and possible effects.
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You Wanted to Sell the Drug
The prosecutor must also show that you wanted to sell the drug. You were caught red-handed, exchanging with a buyer for money, sex, house/apartment, or clearance of debt. Drug paraphernalia is also another element that can prove that you intended to sell it. The prosecutor could also show that the drug you had was packaged for sale. Police always assume that if drugs are packaged in small containers of the same size and you have some huge amounts of money with you, you sell.
Possible Legal Defense Strategies
For you to stand a chance in court, your defense attorney should come up with some of the best legal defenses. These defenses are:
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You Had No Intentions of Selling Marijuana
Having marijuana with you is not a crime, according to California law. However, the intention to sell or selling it is a crime. So, your defense attorney should show that even though you possessed the drug, you were not planning on selling it. If the prosecutor argues that you packaged the drugs for sale, your attorney could say that the drugs were packaged in that manner when you bought them. The attorney could also argue that is how you ration the drugs for your use.
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You Were Not in Possession of Marijuana
Your attorney could also argue that you were not in either active, joint, or constructive marijuana possession. The law clearly shows that possession is important for the charge to hold in court.
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You Were Not Aware that the Drug Was Marijuana
Your defense attorney can also argue that you were not aware that the drug is, in fact, marijuana. Knowledge is important for the prosecutor to prove his case against you, and without it, you can be acquitted.
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Lack of Enough Evidence Against You
If the evidence is insufficient, it shows that you are indeed not guilty of the crime, and the case can be thrown out. Your defense attorney should, therefore, prove that the prosecutor only has insufficient evidence.
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Victim of Police Entrapment
Another possible defense is that you just happened to be a victim of entrapment. Police sometimes use tactics that encourage or force people to commit crimes. Remember, this defense will only hold up if the police either harassed or issued threats that forced you to commit the alleged offense.
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You Were Not Aware That Marijuana is a Controlled Drug
Your attorney can also argue that you were not aware the drug is marijuana. The prosecutor must prove beyond a reasonable doubt that this element is present. He can do this by showing evidence of your behavior at the time of the arrest. If you ran or seemed oddly nervous, then that could prove guilt. However, if your attorney is experienced and well skilled, he can argue that police presence made you seem nervous.
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The Amount of Marijuana Was of Low Quantity
Your attorney can also argue that the amount of marijuana in your possession was low for consumption. According to the law, a usable amount is any amount that is large enough for a person to use it as a controlled substance. If you were arrested with traces of marijuana, then that cannot be considered illegal.
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You Were a Victim of Law Enforcement Misconduct
Your attorney could also argue that you were a victim of police misconduct. Sometimes police can “plant” evidence in a suspect’s property and claim the suspect is guilty. Police misconduct occurs mostly when a person has had difficulties with the police
Penalties for Marijuana Possession with Intention to Sell
In California, possession of marijuana for sale is charged as a misdemeanor. A misdemeanor offense carries a jail term of six months or a $500 fine. However, it can also be charged as a felony in some cases. These cases are:
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In case you committed violent crimes before such as murder, sexual offenses, or gross vehicular manslaughter and you were convicted of the crimes.
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In case you were caught selling the drugs to minors.
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Or if you have repeatedly sold marijuana before and have at least two convictions of a misdemeanor offense.
If you get convicted, you will get a jail term of up to four years in a county jail or a $ 20000 fine. If you are charged for simple possession, you will be put in a diversion program for drugs under penal code PC 1000. However, you won't qualify for a drug diversion program if you get convicted for possession for sale.
You can also be eligible for probation instead of jail term if it was a misdemeanor offense. Nevertheless, probation comes with certain restrictions, which include:
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You must make mandatory reports with the courts to show your progress.
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You must pay restitution to the person who suffered the consequences of your actions.
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You must attend mandatory group therapy.
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You must conduct regular drug testing showing that you are not taking drugs.
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You must participate in community service in your area.
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Law enforcement officers can also conduct regular searches on you or your property without a warrant.
If you are charged under the federal law Title 21 USC 841 as a first offense, which is having less than 50 of the cannabis plant or more than 50 kilograms of the drug, possible sentencing is not more than five years in prison, a $ 250000 fine, or even both. In conflicting laws, federal laws take precedence over state laws. In other words, when committing this offense, you will be not only breaking California law but also federal law.
Under the Immigration and Nationality Act, the conviction of the charge of marijuana possession for sale is considered an aggravated felony irrespective of whether it's a Federal or California law. The consequences can include deportation if you are not documented, or you pleaded guilty/found guilty for possession for sale.
In 2016, a proposition 64 was passed, which allows for modification of a sentence. If you had been convicted of a previous California marijuana law that carries a lighter sentence now, you qualify for resentencing. Felony convictions of previous laws can now be resentenced to misdemeanor convictions. However, you must meet the criteria under Prop 64; otherwise, the prosecutor will challenge the petition with hard evidence. If you also served your felony sentencing for the crime of possession of marijuana for sale, you could petition for re-designation.
The Court Process
The court process begins when the police and the prosecutor have enough evidence to charge you. The judge and jury will then weigh the evidence and witness testimonies and see whether you are indeed guilty. Here are all the steps involved in a court process:
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Arraignment in Court
Arraignment is the first step for the step where the suspect is introduced to the court. The judge will read all the charges brought against you and ask you how you plead. You can enter three types of pleas: not guilty, no contest, and guilty plea. If you plead not guilty, the court proceeds to the next step. The court will proceed to sentence if you plead guilty or no contest. However, the sentencing will be set for a later date.
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Preliminary Hearing
At this stage, the prosecutor presents evidence before the judge for him to decide whether it’s enough for a trial. If the evidence is insufficient, the charges against you will be dropped.
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Pretrial Hearing
A pretrial hearing, both parties meet together with the judge to address certain issues before the trial. It is here where settlement can be discussed and the filing of certain pretrial motions.
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Trial
During the trial, the prosecutor presents his case, then the defense attorney follows by challenging the evidence and questioning the witnesses. A jury of your peers will be present to hear the testimonies and evidence. The jury will deliberate before making a decision.
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Sentencing
Sentencing occurs when you are found guilty of either misdemeanor or felony charges. The length of the sentencing hearing depends on whether the guilty contest was attained during arraignment or after trial. The judge will impose the full sentence, which may include fines, probation, or jail term, depending on the charges.
Related Offenses
There are other crimes you can be charged alongside possession for sale or similar to possession of marijuana for sale. They include:
Simple Possession
Health and Safety Code 11357 describes it as an offense for adults age 21 to possess marijuana of an amount equal to 28.5 grams. Simple possession is charged as a wobbler offense in California. Wobbler offense means it can be charged as a misdemeanor or felony. The facts of the case and all the evidence before you will determine how the prosecutor will choose to charge you.
If you have more than 28.5grams, the case could be charged as a misdemeanor offense, and you will get a jail term of 6months or more in county prison or a $ 500 fine. A felony conviction carries a jail term of not more than three years in a state prison or a $10,000 fine or both.
If you are below 21 years and possess any amount of the drug, that can be considered an infraction. Remember, you cannot be found guilty of simple possession since marijuana was legalized. However, if you don't have a prescription for the drug from a licensed practitioner, then that is a crime.
Cultivation of Marijuana Plant
The Health and Safety Code 11358 makes it legal for people to cultivate, grow, and process six cannabis Sativa plants. However, if the plants are more than six or you have grown them in unauthorized areas, it is considered an offense. The crime is charged as a misdemeanor, and it carries a jail term of six months in a county jail or a $ 500 fine. However, it can also be charged as a felony in the following circumstances:
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If you are a registered sex offender.
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If you committed a violent offense and you were convicted.
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If you have violated California environmental laws concerning marijuana cultivation.
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If you have previous convictions for the cultivation of marijuana.
Selling Without a License
The state of California makes it illegal to sell marijuana without a valid license. According to the Health and Safety Code 11360, selling or transporting marijuana for selling is a misdemeanor offense. You will get a jail term of six months in a county jail or $1000 fine. The offense can also be charged as a felony in certain circumstances; these include:
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If you have previously been charged and convicted of violent and sexual crimes
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If you have prior convictions of selling marijuana without a license
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If you were caught selling the drugs to people of below 18 years
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If you either attempted/transported or imported more than 28.5grams of the drug or more than four ounces of highly concentrated cannabis
Driving with Marijuana in Your Vehicle
Driving with an opened container containing marijuana is a criminal offense in California. It is the same as driving with an open container of Alcohol. The crime is charged under California Vehicle Code 23222(b). If guilty, you can be charged together with possession of marijuana for sale.
Sale, Transportation of a Controlled Substance
The prosecutor could also charge you alongside the sale, transportation of controlled substances. This offense is described under Sale, Transportation of a Controlled Substance (HSC 11352(a)). It comprises transportation and importing any of the drugs that have been listed and described in the statute. If convicted of the offense, you will get a jail term of five years in a state prison or a $20000 fine or get both.
The elements of this crime include; (1) Selling and transporting for the sake of selling the controlled substance; (2) You knew the drug was a controlled substance;(3) The drugs you were transporting were of usable amount;(4) The drug is listed in Health and Safety Code from section 11054 to 11058.
Find a Los Angeles Criminal Defense Lawyer Near Me
Facing charges for the possession of marijuana with intent to sell is a distressing experience. Apart from losing your freedom and serving time in jail, your criminal record is available to the public. Therefore, you need to choose your criminal defense carefully. An attorney who is well skilled and experienced knows how to represent you and have these charges lowered or dismissed. At The Los Angeles Criminal Defense Attorney Firm, we understand the California justice system and are dedicated to building strong defenses. Call us at 424-333-0943 if you are arrested for possessing marijuana for sale.
