Health and Safety Code 11359

Possession of Marijuana With the Intent to Sell

In California possessing marijuana with the intent to sell is what is known as a “wobbler”, meaning, depending on the circumstances, it can be charged as an infraction, as a misdemeanor, or as a felony. Under Health and Safety Code section 11359, marijuana includes the seeds, leaves, oils, and/or resins of the plant Cannabis Sativa L.

Possession can be actual or constructive. Actual possession is actually holding or concealing something in your pocket or a backpack you are carrying. Constructive possession is where something may not be on your person, but where you have access to it when needed, like hiding your marijuana in your car or in your bedroom. You may not be touching an object at any given moment, but the ease of access to something can be considered constructive possession and is treated the same as actually possessing it.

Section 11359 says that “[e]very person who possesses for sale any marijuana, except as otherwise provided by law,” shall be punished as follows:

  • Subsection (a) of section 11359 says: “Every person under the age of 18 who possesses marijuana for sale shall be punished in the same manner provided in paragraph (1) of subdivision (b) of Section 11357.” Section 11357 has a list potential punishments for anyone possessing more than 28.5 grams of marijuana, OR more than 4 grams of concentrated cannabis. This section likely applies to you if you were under 18 and law enforcement believes you had more than 28.5 grams of marijuana, or more than 4 grams of concentrated cannabis with the intent to sell it.
  • Subsection (b) of section 11359 says: “Every person 18 years of age or over who possesses marijuana for sale 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.” This likely applies to you if law enforcement believes you possessed any amount of marijuana with the intent to sell it.

If charged as a misdemeanor your punishment is limited to a maximum six months in county jail, or a maximum fine of $500, or both.

  • Subsection (c) of section 11359 allows for possession of marijuana with the intent to sell it to be charged as a felony if you are over 18 years old and:
  1. You have a previous conviction of a specified felony
  2. You have two or more prior convictions of possession of marijuana with the intent to sell it; OR
  3. “The offense occurred in connection with the knowing sale or attempted sale of marijuana to a person under the age of 18 years.”

If convicted of section 11359 as a felony you can be sentenced to a term of 16 months, 2 years, or 3 years in prison that will be served locally in county jail.

What The State Has to Prove

Before you can be convicted of violating Health and Safety Code section 11359 the prosecution has to prove all of the following beyond a reasonable doubt:

  • That you knew you possessed the marijuana;
  • That the amount of marijuana you possessed was a “usable amount”;
  • That you knew the “contraband nature” of the marijuana, meaning you knew it was a controlled substance and that you were not supposed to possess it; AND
  • That you intended to sell the marijuana you possessed.

Law enforcement and the prosecution have many methods of proving someone intended to sell the marijuana they possessed. These include statements made to investigating officers, having items like baggies and scales nearby, possessing a large amount of marijuana at one time, having cash of certain denominations on one’s person or possessing a large amount of cash, or officers witnessing a “hand to hand” exchange of drugs for money.

Potential Defenses

There are multiple ways to defend a case involving Health and Safety code section 11359 for possession with the intent to sell marijuana.

  • Someone may have intended all of the marijuana they possessed to be used personally rather than sold.
  • The amount possessed may have been too little to be actually used
  • The marijuana was not illegal to possess because it qualifies as medical marijuana for you or a qualified patient.

Additionally, negating any of the required elements of possession laid out above, or a lack of any of the circumstances suggesting you had an intent to sell the marijuana you possessed, is a very effective method of defending a case brought under Health and Safety Code section 11359.

Recent changes in California law may allow for people recently charged or convicted of marijuana possession to receive lighter penalties. However, these scenarios can be complex and should be examined by a licensed attorney who can learn the details of your case before determining if these new laws apply.


We want to help

If you or a loved one is being charged with Possession of Marijuana and related offenses, we invite you to contact us immediately for a free case review. Schedule an appointment to meet with us in person, or feel free to submit an evaluation online and we will get in contact with you ASAP, or give us a call at (310) CRIM-LAW. We can provide a free consultation in our office located in Century City or by phone. Our experienced and assiduous team of professionals will be sure to fight until the end to reduce or drop your charges completely.

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