The passage of Proposition 64 and the legalization of marijuana for recreational use in California did not eradicate all of the drug laws dealing with the drug in the state. Instead, it just drastically changed them.
One of the laws that are still on the books is California Health and Safety Code 11359, which prohibits the possession of marijuana with the intent to sell it. Convictions for possession of marijuana with intent to sell are serious and can lead to significant amounts of time in jail.
Having the skills of William S. Kroger, a drug defense attorney serving clients in Los Angeles and the surrounding area, can be a huge asset if you have been arrested and are facing charges for the possession of marijuana with the intent to sell it. Here's what you should know about the law.
The Crime of Possessing Marijuana With the Intent to Sell
Despite the passage of Proposition 64, you can still be prosecuted for having marijuana and looking to sell it. This is because there are only two outlets, sources, or retailers for legalized marijuana:
- Businesses that have an express license to sell recreational marijuana to people over the age of 21, and
- Medical marijuana dispensaries.
If you do not fall within one of these two categories, then selling marijuana is illegal, despite the drug's recent decriminalization. California Health and Safety Code 11359 reflects this through its continued existence, even after the legalization of marijuana. The article states, “every person who possesses for sale any cannabis, except as otherwise provided by law, shall be punished.”
Elements of the Crime
In order to prove a charge of possession of marijuana with an intent to sell it and turn your criminal charge into a criminal conviction, the prosecutor has to show, beyond a reasonable doubt, that:
- You had a useable amount of marijuana in your possession.
- You knew that you had the drugs in your possession.
- You knew that marijuana is a controlled substance under the California Controlled Substance Schedule.
- You intended to sell the marijuana without a license to do so.
Because most of these elements have to do with mens rea -- your mental state or internal thoughts at the time of the alleged crime -- proving that you are guilty of possessing marijuana with the intent to sell it to someone else is not an easy thing to do. This makes the charge an especially fact-intensive one and often leads to plea deals down to a lesser offense.
The Fact-Intensive Nature of Possession With Intent to Sell
Unless the prosecutor is able to read minds, they will have to rely on outward signs of your intentions to prove that you had marijuana and wanted to sell it. In some cases, this can be a stretch as prosecutors have to piece together merely circumstantial evidence to prove their case. This circumstantial evidence can take a variety of forms, like:
- The marijuana was packaged in ways that indicate it is for sale, e.g., a price was attached to it.
- The amount of marijuana in your possession was more than what one would expect for own personal use.
- You were also carrying a lot of cash at the time of your arrest.
- You have a past conviction for selling drugs.
- Your reaction to police finding marijuana in your possession was not one of legitimate surprise.
These and plenty of other circumstances can all be used by the prosecutor to prove the case. However, precisely because the allegations rely on so many different signs and facts – each of which can have a variety of other explanations – having a skilled criminal defense and drug attorney at your side throughout the process can be a huge help.
Plea Deals Down to Mere Possession
Because so much of a charge for possession with intent to sell marijuana relies on your mental state and your intentions, many of these charges can be reduced to those for just possessing marijuana. By reducing the charges, prosecutors turn a tenuous case into a solid one, reducing their time and effort, as well as the penalties you could face if you get convicted.
Potential Penalties: A Misdemeanor for Most, a Felony for Some
Criminal laws in California -- like elsewhere -- fall into two categories: misdemeanors or felonies. Convictions of misdemeanors carry less than a year of jail time while felonies can come with more than a year.
Typically, people who have been charged with possession with intent to sell marijuana face misdemeanor charges. If convicted on these charges, you could face the following penalties:
- Up to six months in jail; and/or
- Up to $500 in fines.
But you could also be sentenced to a period of probation. Probation can incorporate any of the following:
- Regular drug testing.
- Restitution to those impacted.
- Regular progress reports to the court
- Drug therapy
- Community service.
Some defendants with eligible criminal histories, however, will face felony charges for possession of marijuana with intent to sell. After changes to the law brought by Proposition 64, felony charges for possession with intent to sell are for:
- Anyone who sold or tried to sell marijuana to someone under the age of 18.
- Those with a prior conviction for a set of serious and violent crimes, like murder, or sexual crimes that require your registration on the sex offender list.
- People with at least two prior convictions for misdemeanor-level possession of marijuana with intent to sell.
Convictions for felony charges of possession with intent to sell marijuana come with:
- Prison sentences of between 16 months and three years; and/or
- Up to $10,000 in fines.
Additionally, a felony conviction comes with a whole host of collateral consequences, like having to disclose the conviction on job applications, if asked to do so, and restrictions on your right to have a gun. These collateral consequences of a felony conviction are costly, and can make life much more difficult for you, even after years have passed since not just your prior conviction, but also after the completion of all of the other penalties that you faced. Avoiding the repercussions of both the legal and the collateral consequences of a felony-level offense of possession with intent to sell marijuana are critical, and having a lawyer on hand to help can be the best way to raise a stiff defense against the charge.
Defenses to a California Charge of Marijuana Possession With Intent to Sell
There have always been numerous ways to defend against a charge of marijuana possession with intent to sell. Now that marijuana has been legalized for both medical use and recreational use, though, some of these defenses have become even more powerful.
Here are some of the most effective defenses that can be raised against a charge of possession of marijuana with intent to sell.
The Marijuana is for Your Personal Recreational Use
Now that Proposition 64 has gone into effect and you have a right to use marijuana for recreational purposes, you can have a limited amount of the drug in your possession if you are older than 21. This amount, though, is fairly low: You can only possess up to 28.5 grams of marijuana, up to eight grams of concentrate, and up to six plants.
If you had less than that amount when you were arrested -- claiming that the marijuana was for your own use -- is a very effective defense because there was not enough to sell. If you had more than the permissible amount, though, claiming that the marijuana was for your personal use is still not a useless defense: it can be effective to reduce the charges down to simple possession.
The Marijuana is Medicinal
Another effective defense to a charge of possession of marijuana with an intent to sell it is that the marijuana you had was medicinal marijuana. Under California's Compassionate Use Act, whether you are a patient who needs medical marijuana or a caregiver for someone who does, you are legally allowed to possess a reasonable amount of marijuana to deal with your medical condition.
The Marijuana Was Not for Sale
Another effective defense to possession with intent to sell is to argue that the marijuana that was found in your possession was not going to be sold. Some facts – like if you were arrested while just leaving a licensed dispensary – support this defense.
Evidence Was Found During an Illegal Search or Seizure
If police violate your rights under the Fourth Amendment, which prohibits searches or seizures that are unreasonable, then whatever evidence they find as a result of that search or seizure will be excluded from court.
Los Angeles Marijuana Defense Attorney William S. Kroger
William S. Kroger is one of Los Angeles' leading marijuana attorneys. He regularly defends clients against charges of possession of marijuana with intent to sell and has a strong track record of successful outcomes.
If you have been arrested and charged with possession of marijuana with intent to sell it in the Los Angeles area, you need the legal representation of William S. Kroger. Reach out to him by calling his Los Angeles law office at (323) 655-5700 or by contacting him online.