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Possession with Intent to Sell (11359 HS) -Prosecution

If you have been charged with possession of marijuana for sale under 11359 HS, it is important to understand what this crime entails. Our criminal attorneys at Wallin & Klarich want to share with you what the prosecution needs to prove in order to convict you of this offense.

Possession with Intent to Sell Marijuana under the California Health and Safety Code

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Possession of marijuana for sale is covered by California Health and Safety Code section 11359. In order to convict you of possession of marijuana for sale in under California Health and Safety Code section 11359, the prosecution must prove the following:

  1. You possessed a controlled substance AND
  2. You knew of its presence AND
  3. You knew of the substance’s nature or character as a controlled substance AND
  4. When you possessed the controlled substance, you intended to sell it AND
  5. The controlled substance was marijuana AND
  6. The controlled substance was in a usable amount


In order to convict you of possession of marijuana for sale under HS 11359, the prosecution must prove that you had actual possession. The easiest way for the prosecution to prove actual possession is when the marijuana is found on your person by a law enforcement officer.

However, you do not have to actually be holding or touching the marijuana in order to possess it. It is enough if you have control over the area in which it is found. For example: You can be charged with possession for sale if the marijuana is found in your house, despite the fact that you are not physically present, because you own the home and exercise control over it.

Controlled Substance

Marijuana as a controlled substance 11359 HS
The prosecution must prove that the substance on you was in fact marijuana.

A controlled substance is any drug or chemical whose manufacture, possession and use are regulated by the government under the United States Controlled Substances Act.

This federal statute allows the government to regulate almost any form of narcotic that has the potential to make its way through interstate commerce.

Marijuana is considered a controlled substance under this regulatory scheme along with other illegal drugs such as heroin, cocaine, LSD, and methamphetamine.

In order to prove that the substance in your possession was marijuana, the prosecution will likely rely on expert witness testimony and laboratory tests showing the chemical makeup of the substance.


In order to convict you of possession of marijuana for sale under HS 11359, the prosecution must prove that you knew the character or nature of the substance you possessed. In other words, the prosecution must prove that you knew the substance was capable of being used as a drug as regulated under the United States Controlled Substances Act.

This does not mean that the prosecution must prove that you knew the substance was marijuana. In fact, the prosecution is not required to prove that you knew exactly what substance you possessed, but only that you knew of its nature and character.

Usable amount

A usable amount is defined as any quantity that is enough to be used by someone as a controlled substance. Useless traces or debris are not considered “usable amounts” because they are not likely to be used in the manner prohibited by the California Health and Safety Code. However, a usable amount does not need to be enough, in either amount or strength, to affect your disposition upon its use.

Intent to sell

To convict you of possession of marijuana for sale under California HS 11359, the prosecution must prove that you had the intent to sell. Selling in this context means exchanging the marijuana for money, services, or anything of value. The prosecution must show facts or circumstances that show you intended the sell the marijuana rather than just possessing it for personal use.

Here are some common ways the prosecution can use to prove that you intended to sell marijuana:

  • The amount of marijuana found in your possession exceeded an amount typical of personal use (usually more than an ounce)
  • When the marijuana was seized, you were in possession of large amounts of cash in small denominations
  • The marijuana was separated and placed in several small containers or bags
  • The location in which you were found with marijuana in your possession is frequently used for drug sales

Contact a Wallin & Klarich Attorney if You Have Been Charged with Possession of Marijuana for Sale

Wallin & Klarich HS 11359 Lawyers
Our team of lawyers is ready to fight on your behalf. We will get through this together.

If you or someone you know has been charged with possession of marijuana for sale in California, you need to contact an experienced defense attorney who is dedicated to giving you the best representation possible. Drawing from our extensive experience, our talented defense lawyers will thoroughly review your case and develop an effective defense strategy to win your case.

With offices in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, Wallin & Klarich has successfully represented clients facing California marijuana sales charges for over 30 years.

Call us today at (877) 4-NO-JAIL or (877) 466-5245. We will be there when you call.

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