June 24, 2015

Marijuana Sale, Giving Away, Transportation | California Health and Safety Code Section 11360 | HS 11360

Medical marijuana is shown in a jar at The Joint Cooperative in SeattleMarijuana Sale, Giving Away, Transportation | California Health and Safety Code Section 11360 | HS 11360

Under the California HS code 11360, 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 marijuana shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three or four years.

Payment

In order to be convicted of selling marijuana, the prosecutor must prove beyond a reasonable doubt 1. the sale, meaning exchange of money, services, or other means of consideration 2. knowledge of the presence and nature of marijuana, and 3. the substance must be marijuana.

Notice that the statute does not require actual sale. “Under this section prohibiting sale or furnishing of marijuana, not only sale but furnishing and giving away of marijuana is prohibited and it is unnecessary to prove that accused received any consideration in return for marijuana.” People v. Sheldon (App. 2 Dist. 1967) 61 Cal.Rptr. 778, 254 Cal.App.2d 174. If the prosecutor charges the person with giving away of marijuana, the following elements must still be present: 2. knowledge of the presence and nature of marijuana, and 3. the substance must be marijuana.

Possession/Delivery

The person accused does not need to actually hold marijuana in his hands for the sale to occur. The prosecution can prove either actual or constructive possession of marijuana. The language of the statute “…,or offers to … sell, furnish, administer, or give away…”, allows the prosecution to bring the case to trial even if there was not even possession of any marijuana. The delivery or possession is not required to be convicted.  

Defenses

No Sale or Offer to Sell. An accused must actually sell, offer to sell, or give away marijuana to be convicted under HS 11360. For example, if police finds a person in possession of marijuana after a legal search, he/she may be prosecuted for possession (with intent to sell) under HS 11357 or 11359, but not the sale of marijuana.

Search. The police must follow procedure during a search. The 4th amendment protects persons from unreasonable searches and seizures. This means that the search must be with a warrant or under an exception to a warrant requirement. If police makes an illegal search, the evidence must be suppressed.

Entrapment. This is a very fact specific defense. It is best to seek a knowledge attorney’s opinion whether an entrapment defense will work in your case. Generally speaking, entrapment occurs when police conduct makes a law-abiding citizen to commit a crime. The police conduct must be sufficiently coercive. For example, a bait car sting operation is not an entrapment. The prosecutor will successfully show that the operation only caught persons who were “ready and willing to commit crime.” Under an objective standard, a law abiding citizen will ignore a car with ignition on and open door or would call the police. Some courts use a subjective test, that focuses on the mind of the accused during the time of the commission of the crime. 

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