Health and Safety Code 11361 HS - Selling or Giving Marijuana to A Minor
California Health and Safety Code Section 11361 prohibits the sale of marijuana to minors. Notably, a violation occurs even if no money changes hands; giving, furnishing, trading, bartering, or providing marijuana to a person under 18 is equally unlawful as selling it.
According to California Health and Safety Code 11361, it is illegal for any adult to:
- Use a minor to transport, sell, prepare to sell, or give away marijuana.
- Sell, administer, or provide marijuana to a minor; or
- Influence a minor to try marijuana.
As shown, HS 11361 covers various types of prohibited conduct. Essentially, it is illegal to involve a minor in the marijuana trade, including selling or transporting the drug. This also applies to carrying, preparing, or promoting marijuana for sale.
California Health and Safety Code 11357 HS mainly regulates personal possession of marijuana and concentrated forms such as hashish, wax, or vape cartridges within the state.
Key Takeaways
- Providing marijuana to a minor for personal use—whether by selling, offering to sell, or giving it—is a crime.
- Health and Safety Code 11361 criminalizes persuading a minor to use marijuana, including actions like encouraging, coercing, intimidating, or using other forms of persuasion.
- Proposition 64 allowed adults aged 21 and older to use marijuana recreationally. Nonetheless, minors are still barred from using or possessing marijuana in any form—including flower, edibles, vape products, hash, hash oil, or others.
- Under California Health and Safety Code 11357(a) HS, adults aged 21 and older are legally permitted to possess concentrated cannabis within personal limits. However, individuals under 21 may face infractions for possession, and possessing any amount on K-12 school grounds can lead to various penalties under related subsections of HS 11357.
- Under California Health and Safety Code 11357(c) HS, possessing marijuana on school grounds during operating hours is a separate criminal offense.
Prosecuting a Case under HSC 11361
California Health and Safety Code 11361 covers cases where an adult—someone over 18—sells, gives, or distributes marijuana to a minor—someone under 18. It also addresses the use of minors as agents to sell or transport marijuana.
Sometimes, drug dealers use minors as 'mules' to transport or sell marijuana, hoping they'll face lighter penalties if caught and avoiding the risks of doing it themselves.
To combat this, HS 11361 prohibits hiring, employing, or otherwise involving minors in activities like transporting, selling, giving away, furnishing, or transferring marijuana.
What Must Be Proven to Convict?
To convict someone of HS 11361 for selling or providing marijuana to a minor, the prosecutor must establish all elements of the crime beyond a reasonable doubt, including proof that the defendant:
- Was at least 18 years old at that time.
- Knew that the person receiving the marijuana was under 18 years old.
- Providing marijuana to a minor, whether by selling, offering for sale, or giving it away.
- Used or employed a minor to sell, transport, or give away marijuana, or
- Encouraged, persuaded, solicited, or intimidated a minor into using marijuana.
- Was aware of the substance's nature or classification as a controlled substance.
- The amount of marijuana was sufficient for use.
For additional details, refer to CALCRIM 2391 regarding offering to sell or furnish marijuana to a minor; CALCRIM 2392 concerning employing a minor to sell marijuana; and CALCRIM 2393 about inducing a minor to use marijuana.
Penalties for Selling Marijuana to Minors
Under California law, selling marijuana to a minor is always a felony. It is not classified as a "wobbler," so the charge cannot be downgraded to a misdemeanor at any stage, whether prefiling or in court.
The penalties for violating Section 11361 vary depending on the minor's age when marijuana is sold, given away, or furnished.
If the victim was 14 or older, the penalties involve three, four, or five years in California state prison, along with fines and fees. For victims under 14, these penalties increase to 3, 5, or 7 years in prison, plus fines and fees.
Defenses for Health and Safety Code 11361 Charges
Several defenses are available in cases of selling marijuana to minors, particularly those connected to the age requirement specified in the statute.
With the legalization of certain marijuana sales between individuals, including through recreational and medical marijuana laws, a defendant's reasonable mistake of fact regarding the victim's age should serve as a defense.
Other defenses that could be raised in a prosecution under HS 11361 include claims of false identification, doubt about whether the defendant intended to sell or provide marijuana, or illegal search and seizure by law enforcement.
If evidence against the defendant was obtained through a warrantless search without a recognized exception to the Fourth Amendment's warrant requirement, the court will likely grant a motion to suppress, potentially leading to the dismissal of charges.
If you or a family member is under investigation for, have been arrested for, or have been charged with marijuana sales to minors in violation of California Health and Safety Code Section 11361, contact our experienced team of California criminal defense attorneys at Cron, Israels & Stark for an initial consultation.