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California Health & Safety 11359 HS: Possession for Sale of Marijuana

Southern California Marijuana Possession for Sale Defense Attorneys

Health & Safety 11359 PC provides that "Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison." The offense is a felony and a person convicted of HS 11359 could be punished by up to 3 years in California state prison.

Possession for sale of marijuana cases usually start with a suspect being arrested with some quantity of marijuana in his possession. The police may suspect the person to be holding the marijuana for sale based on factors such as:

A large quantity of marijuana is seized, more than a typical person would have for personal use

This is really a shallow argument for the prosecution in a Health & Safety Code 11359 case, since many marijuana users will buy and keep a sizable stash for personal use. Some smokers buy pounds and pounds of marijuana at a time, stocking up on it.

Stocking up certainly makes more sense than going back to the marijuana dispensary, or to a dealer, every few days to restock. It’s like shopping at Costco once a month versus going to 7-11 every day. Yet many cops will try to say that anything more than a couple ounces "is more than we would expect a mere user to have...and thus must have been held for sale"

The marijuana is contained in numerous packages

Packaging is often the most important single factor in a Health & Safety 11359 possession for sale of marijuana case. A person busted with an ounce of weed individually bagged in 28 gram-sized amounts will probably be accused of marijuana possession with intent to sell.

Whereas a person with the same quantity marijuana, but in a single container, would probably only be charged with Health & Safety Code 11357, simple possession of marijuana.

The suspect also possesses a large amount of cash, especially a large number of small bills

If the suspect is busted with marijuana and a lot of cash—on his person, or in his car, or in his home (if the home is raided)—the cops will probably allege the cash to be revenues he collected from selling the pot. This is especially true if the money is mostly in the form of small bills.

Suppose the suspect is arrested with $1000 cash. If this is in the form of 8 $100s, 2 $50s and 5 $20s, then it doesn’t look as suspicious. But suppose there are 96 $5s, 22 $10s and 300 $1s. This, the cops will say, looks like the cash one would collect from selling small quantities of marijuana. It’s like the content of a cash register. Even people who normally carry a lot of cash for legitimate purposes generally don’t carry this sort of distribution of bills.

The suspect is arrested in a location where sellers or dealers would normally go to sell their stash

Sometimes the suspect is arrested with a stash of pot, and he is arrested where people are known to go to buy and sell marijuana. The cops will claim that the suspect’s presence at such a location is evidence he was there to sell. But this argument obviously cuts both ways. The suspect may have gone to the location to score, and he just scored some weed for mere personal use. Or the location may be a "hang-out" for users, and the suspect is there to socialize and smoke with friends and acquaintances.

Officers see the suspect engaging in what appears to be hand-to-hand sales

Police officers often conceal themselves in an "observation post," hoping to see the suspect engage in selling the marijuana to customers. The cops may surveil the suspect’s residence, or they may watch him at some public place. Ultimately, they move in and arrest the suspect. If he has possession of marijuana, the cops will say it must be held for sale because they’ve already been watching him sell to various people.

The suspect has no paraphernalia, and doesn’t appear high

Often times in Health & Safety Code 11359 possession for sale of marijuana cases, the defense will contend that the weed was held for personal use. But the police and prosecutor will insist the pot was held for sale. Suppose the suspect, when arrested, doesn’t appear to be high, and doesn’t have any paraphernalia in his possession—such as pipes, bongs or papers. The cops will say this is evidence that he is not a true marijuana user, and that he was not intending to smoke the pot himself.

We find this to be the silliest of the prosecution’s arguments. Most pot smokers are not high every minute of the day. Nor do they always have paraphernalia in their possession. The person may simply have not been smoking right prior to arrest. And he may have his paraphernalia kept somewhere else, not on him at the time and place of arrest.

Fighting a Health & Safety Code 11359 HS Case

As you can see, most HS 11359 cases involve a dispute as to the purpose for the marijuana possession—whether it was held for sale or personal use. A lot turns on this question. Simple possession probably means a lightweight misdemeanor (Health & Safety Code 11357 HS) and little consequences. Possession with intent to sell marijuana means a felony that could land a person in state prison.

A good marijuana defense attorney knows how to identify all the factors that support the client’s case, and to take advantage of these factors to avoid a HS 11359 conviction. We hope this discussion was helpful, and we invite you to contact us if you need further assistance.

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