Under the Health and Safety Code §11359, this law makes it illegal (a felony) to possess marijuana with the intent to sell it. It is commonly charged along with Health and Safety Code Section 11358 (cultivation of marijuana). However, one definitely doesn’t need to be cultivating marijuana to get charged with this offense.
An officer has a lot discretion as to how to recommend a prosecutor charge a suspect. Their reports generally have a list of violations and code sections that they recommend the individual be charged with, based on the evidence in the case.
It is crucial to note that in order to be guilty of this offense, a prosecutor must prove beyond a reasonable doubt that an individual had the intent to sell the marijuana they had in their possession. Even if a prosecutor doesn’t have any evidence that the suspect made a marijuana sale, they could nevertheless conclude that the person had the intent to sell it.
The way a prosecutor tries to prove someone had the intent to sell marijuana, as opposed to simply possessing it for personal use, is through indirect (circumstantial) evidence. They will commonly note in their reports as to how the marijuana was separated, packaged, other clues like client lists, cash, scales, guns, and of course the quantity of marijuana.
Many medicinal marijuana Co-op owners have been arrested and charged with a violation of this code. Many of these people believed they were operating lawfully, but later discovered that their operation was actually operating in violation of this code.
A violation of this code section is a felony offense, and carries a sentence of 16, 24, or 36 months. Under the re-alignment laws, and individual may be sentenced to prison on this charge, but actually serve their time in county jail (at 50% custody time since it’s a non-violent crime).
If you or a loved one is arrested for this offense, it is crucial to contact a skilled attorney, that has a track record of success in these types of cases. The Law Office of Ben Mironer, fights these types of cases, and tries everything possible to get the prosecutor to agree that there was no intent to sell the marijuana in contention. If there is no intent to sell, then the case is actually simply possession of marijuana (Health and Safety Code Section 11357, which is eligible for a Penal Code 1000- Deferred Entry of Judgment) It is important to note that in these cases, good representation could mean the difference between a felony conviction, and a deferred entry of judgment dismissal.