Selling Marijuana – California Health and Safety Code 11360 HS
There is a distinction between possession for sales of marijuana and actually selling marijuana. The attorneys at Wallin & Klarich have over 40 years of experience handling the different types of marijuana cases in Southern California. Our attorneys have the skill and expertise to provide you with the best possible defense in your case.
California Health and Safety Code 11360 HS makes it a felony for anyone to offer to or actually sell marijuana and if a person is found guilty of said offense, the person can be punished by imprisonment for up to four years in county jail. However, if the sales are made to a minor, the punishment can be imprisonment for up to seven years in state prison. See California Health and Safety Code 11361 HS.
Sentencing for Selling Marijuana
Selling Marijuana in California – California Health and Safety Code 11360 HS
California Health and Safety Code 11360 applies if you actually sell or offer marijuana to another person (as opposed to merely possessing it for the purpose of sale). If you are convicted of a misdemeanor possessing less than 28.5 grams under this statute, you face a fine of up to $100. If convicted of a felony under this statute, you face a sentence for a period of two, three or four years in county jail.
Over 18 years of age and having a Minor sell/use Marijuana – California Health and Safety Code 11361(a) HS
Under California Health and Safety Code 11361(a) HS, if you are over 18 years of age, you may be facing three, five, or seven years imprisonment in state prison if you:
- Sell or offer to sell marijuana to a minor;
- Hire/employ/use a minor to unlawfully sell, prepare for sale, or peddle marijuana;
- Give marijuana to a minor under 14 years of age;
- Offer to give marijuana to a minor under 14 years of age; or
- Induce a minor to use marijuana.
If you are found guilty of any of the above-listed actions, you will still be required to serve your felony sentence in state prison.
Giving Marijuana to a Minor 14 years of age or older – California Health and Safety Code 11361(b) HS
Every person 18 years of age or over who actually sells or offers to give any marijuana to a minor 14 years of age or older shall be punished by imprisonment in state prison for three, four, or five years. This is another charge that remains punishable by a state prison sentence. See California Health and Safety Code 11361(b) HS.
Possessing Marijuana while driving and under 21 years of age – California Vehicle Code Section 13202.5 VC
If you are caught in possession of marijuana while driving and are under the age of 21, you face a fine of $250 and 24 to 32 hours of community service upon a first conviction. In addition, the court will suspend your driver’s license for a year. If you do not have a driver’s license, the court will order the DMV to delay issuing a driver’s license to you for a year subsequent to the time you become legally eligible to drive. See California Vehicle Code 13202.5 VC.
Defenses to Selling Marijuana Charges
Motion to Suppress Evidence-Penal Code 1538.5 PC
A defendant can file a motion to suppress evidence whenever it is believed that evidence was taken from your person or property unlawfully. The general theory behind a motion to suppress is that the prosecution should not benefit from evidence that law enforcement took from you illegally. There are many legal grounds for bringing a successful motion to suppress evidence motion. If your motion to suppress evidence is successful then this means that the illegally seized evidence will not be able to be used against you in court. This normally results in the criminal charges against you being dismissed.
Awareness or Knowledge of Controlled Substance
The defendant cannot be found guilty for sale of marijuana if the defendant was not aware of the substance’s presence and that it was in fact marijuana.
The defendant cannot be found guilty for sales of marijuana if the defendant never sold marijuana. However, the defendant may still face other charges, like possession of marijuana and offering to sell marijuana. See California Health and Safety Code 11357, 11360(a) HS.
No Intention of Selling
The defendant cannot be found guilty of offering to sell marijuana if the defendant never offered to sell marijuana. Also, the defendant cannot be found guilty if the defendant, in making the offer, never had the intention of selling marijuana.
Entrapment can be used as a defense when the conduct of the police officer induced a normally law-abiding person to commit the crime that he or she is charged with. Entrapment is a very difficult defense. The level of conduct by the officer must be sufficiently coercive that it would be difficult for a reasonable person to refuse.
For example, in People v. Barraza, 23 Cal. 3d 675 (1979), the California Supreme Court has ruled that entrapment occurs when the defendant committed a crime only because of the police officer’s threats to commit the crime.
In this case, the defendant was a recovering heroin addict who sold heroin to an undercover cop. The only reason the defendant committed this crime was because 1) the undercover officer called him repeatedly at work; 2) he was afraid he would lose his job if the officer kept calling, so he agreed to meet with her, and 3) during the meeting, which lasted more than an hour, the officer pressured him relentlessly until he was overcome and gave in to the pressure. The police officer’s pressure was found to be so coercive that a reasonable person would find it difficult to refuse. The defendant’s conviction was reversed.
Entrapment does not result just because officers created a situation which made it possible for the defendant to commit the crime. For example, if the officers set up a car with the door opened and the key is in the ignition, and you decide to take the car and drive off you likely will not be able to raise a successful entrapment defense. This is because the prosecution will be able to show that you had “criminal intent to steal.” The prosecutor will argue that a normally law-abiding person would have resisted stealing the car under this factual situation.
FAQs to Selling Marijuana Laws
1. What is the difference with marijuana sale and possession for sale of marijuana?
Marijuana sale is charged when the marijuana has been sold. Possession for sale of marijuana is charged when the defendant is in possession of marijuana with the intent of selling it, but has not yet sold the marijuana. See our Possession for Sale of Marijuana section for more information.
2. Other than sales, what can the prosecution charge me for under California Health and Safety Code 11360 HS?
Along with sales, it is also a crime to transport, import into California, furnish, administer, or give away marijuana. It is also a crime to offer to do any of the above listed crimes.
3. What if the minor told me he/she was over 18?
Having a good faith belief that a minor was over 18 years of age is not a defense.
4. What can I get my charges reduced to?
With the help of an experienced drug defense attorney, the attorney can get your case dismissed. If the case cannot get dismissed, the attorney can help you get a reduced charge for a lighter penalty. If charged with marijuana sale, possible reduced charges include possession for sale of marijuana and possession of marijuana. Possession of marijuana would be more favorable because you may be eligible to enter a drug treatment program under P.C. 1000 or Prop. 36. Read our Drug Diversion Programs section for more information.
Call Wallin & Klarich Today If You Have Been Charged with Selling Marijuana
Marijuana laws are complex. Selling marijuana is different from having possession for sales of marijuana. The punishments for the two crimes are different. It is important to talk to an experienced attorney to inform you of your rights.
At Wallin & Klarich, our attorneys will guide you through the process of your case and provide you with the best possible drug crime defense. Our attorneys will aggressively defend you to ensure the judge takes into account all of the available options in your case.
Contact the experienced Southern California criminal defense attorneys at Wallin & Klarich today at (877) 466-5245. We will get through this together.