Marijuana Sales Law in California – Health and Safety Code 11360
It's widely known that possession of marijuana by adults was mostly legalized by voters in California under Proposition 64.
However, many people are unaware of the exceptions to legalization. There is still a significant type of behavior related to marijuana that could result in getting prosecuted in a criminal court.
Unlawful marijuana sales are defined under California Health and Safety Code Section 11360, which makes it a crime to:
- sell marijuana;
- give away marijuana;
- import marijuana into California;
- transport for sale any amount of marijuana.
It also includes marijuana concentrates such as hash oil and edible forms of marijuana like brownies, gummies, etc.
In simple terms, even though marijuana possession has been largely legalized, if you are distributing marijuana, you can still face criminal prosecution.
Health and Safety Code 11360 prohibits marijuana sales, but there is a difference between possession for sale of marijuana and actually selling it.
HS 11360 marijuana sales as a felony case
It should be noted that most HS 11360 cases are filed as misdemeanors. However, this drug crime could be filed as a felony and carry a sentence of up to four years in a county jail.
If the sales involved a minor under 18 years old, the penalties could include up to seven years in a California state prison.
Our Los Angeles criminal defense attorneys have provided a review below to help you better understand the California laws on marijuana sales.
What Must Be Proven for an HS 11360 Marijuana Sales Conviction?
California Health and Safety Code 11360 defines the crime of sale or transport of marijuana:
- “Anyone who transports, imports, sells, furnishes, administers, or gives away, or offers to do the same, or attempts to import into this state or transport any cannabis.”
In order for the prosecutor to convict you of violating Health and Safety Code 11360, sale or transportation of marijuana, they have to prove several factors. These factors are commonly known as the “elements of the crime” that include:
- You sold, furnished, imported, transported, or gave away marijuana;
- You knew of its presence and nature as a controlled substance.
For additional information, see CALCRIM 2361, transport or give away marijuana more than 28.5 grams.
What are the Penalties for HS 11360 Marijuana Sales Conviction?
As stated, after Proposition 64 passed, most Health and Safety Code Section 11360 marijuana sales cases without a license are handled as misdemeanors carrying the following penalties:
- A maximum of six months in a county jail;
- A $500 fine, or both the fine and jail.
There are still, however, some common situations where HS 11360 will be filed as a felony offense. These include if the defendant:
- Has at least two prior convictions for marijuana sales or transportation;
- Imported into California or exported over 28.5 grams of marijuana or over 4 grams of concentrated cannabis, such as hash;
- Sold or attempted to sell to minors under the age of 18;
- Has prior convictions for specific serious felony crimes such as murder, rape, child molestation, or other sexually related offenses requiring sex offender registration under Penal Code Section 290.
HS 1160 felony marijuana sales conviction
A felony conviction for violating Health and Safety Code Section 11360, selling or transporting marijuana, carries the following penalties:
- Two, three, or four years in a California state prison;
- A fine of up to $10,000.
Additionally, a felony conviction will result in a lifetime ban on owning a firearm. Defendants are not eligible for a drug diversion program as a jail alternative.
What Does HS 11360 Say?
California Health and Safety Code 11360 says, "(a) Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any cannabis shall be punished as follows:
(1) Persons under the age of 18 years shall be punished in the same manner as provided in paragraph (1) of subdivision (b) of Section 11357.
(2) Persons 18 years of age or over shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.
(3) Notwithstanding paragraph (2), a person 18 years of age or over may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three, or four years if:
(A) The person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code;
(B) The person has two or more prior convictions under paragraph (2);
(C) The offense involved the knowing sale, attempted sale, or the knowing offer to sell, furnish, administer, or give away cannabis to a person under the age of 18 years; or
(D) The offense involved the import, offer to import, or attempted import into this state, or the transport for sale, offer to transport for sale, or attempted transport for sale out of this state, of more than 28.5 grams of cannabis or more than four grams of concentrated cannabis.
(b) Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of cannabis, other than concentrated cannabis, is guilty of an infraction and shall be punished by a fine of not more than one hundred dollars ($100). In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, that person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his or her written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.
(c) For purposes of this section, “transport” means to transport for sale.
(d) This section does not preclude or limit prosecution for any aiding and abetting or conspiracy offenses."
What are the Related California Offenses for HS 11360?
- Health and Safety Code 11357 HS – possession of marijuana
- Health and Safety Code 11357(a) HS – concentrated cannabis
- Health and Safety Code 11358 HS – cultivation of marijuana
- Health and Safety Code 11359 HS – possession of marijuana for sale
- Health and Safety Code 11361 HS – selling marijuana to a minor
- Health and Safety Code 11366 HS – operating a drug house
Under California Health and Safety Code 11357(c) HS, possessing marijuana on school grounds during operating hours is a separate criminal offense.
How Can I Fight HS 11360 Marijuana Sales Charges?
If you were accused of misdemeanor or felony marijuana sales in violation of HS 11360, our Los Angeles criminal lawyers can use a variety of defenses.
Defending against marijuana offenses in California presents unique challenges due to the partially legal status of marijuana use and the prevalent medical marijuana market. Our experienced criminal lawyers are well-versed in these complexities and can provide effective defense strategies.
For example, we might be able to prove you are a permitted caregiver that is allowed under state law to possess marijuana for sale to qualified patients.
Possession of marijuana for personal use only
Another potential defense against the transport or sale of marijuana includes an argument for personal use rather than possessing or transporting it for sale.
Adults over 21 are legally permitted to use marijuana without a permit or prescription.
The prosecutor has to prove the HS 11360 case by showing evidence of sales, such as a large quantity of marijuana, possessing a large amount of cash, and common drug sales paraphernalia like baggies and scales.
Illegal search and seizure
Another defense for violating Health and Safety Code 11360 is the argument for illegal searches and seizures. Under state and federal law, you have the right to be free from unreasonable search and seizure by law enforcement of your person or property. If the police seized the marijuana without a valid search warrant, the prosecution must be able to establish one of the recognized exceptions to the warrant requirement.
If the police seized the marijuana without a valid search warrant, the prosecution must be able to establish one of the recognized exceptions to the warrant requirement.
Motion to suppress evidence – Penal Code 1538.5 PC
We might be able to litigate a California Penal Code 1538.5 motion to suppress based on the warrantless search. If successful, the prosecutor will likely dismiss the case.
A motion to suppress evidence can be filed when it's believed the evidence was unlawfully taken from your person or property. There are several legal grounds for bringing a successful PC 1538.5 motion to suppress evidence.
If the motion to suppress evidence is successful, then the court agrees that the illegally seized evidence will not be able to be used against you in court. This will typically result in the criminal charges against you being dropped.
Contact Us for Help with a Marijuana Sales Case
If you or a family member was accused of unlawful marijuana sales in violation of California Health and Safety Code 11360, call our team of experienced criminal defense attorneys for an initial consultation.
We will review the details of your case and discuss the next steps in your defense.
This includes prefiling intervention, where we might be able to prevent the formal filing of criminal charges before going to court.
Cron, Israels & Stark is a criminal defense law firm located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025. We also have an office at 401 Wilshire Blvd #1200, Santa Monica, CA 90401. Contact our office for a free case consultation at (424) 372-3112.