In California, state and local governments regulate the sale and use of marijuana. Health & Safety Code § 11357 regulates marijuana possession. It considers the individual's age and the quantity of marijuana they have. The code distinguishes between individuals under 18, those between 18 and 21, and those 18 or older. It imposes different penalties based on the quantity of marijuana involved.

These regulations ensure responsible and safe marijuana use. They aim to prevent its use by minors and maintain control over its production and distribution. Violating these provisions can lead to criminal charges. If convicted, the penalties outlined in this section apply. Bakersfield attorneys at the California Criminal Lawyer Group break down HSC 11357 below.

Possession of Marijuana Under California Law HSC 11357

In 2016, California voters approved Proposition 64, the Adult Use of Marijuana Act. This law had a profound impact on marijuana regulation in the state. This voter initiative effectively legalized recreational marijuana use and possession for adults aged 21 and older. It granted adults the right to possess, transport, and use specified amounts of marijuana for personal use.

Proposition 64 establishes a comprehensive regulatory framework. It included licensing and permitting for various businesses in the marijuana industry, for example, dispensaries, growers, and distributors. It maintained prohibitions on public consumption and driving under the influence of marijuana, emphasizing the importance of responsible use. It also addresses public health and safety concerns and prevents underage access.

While Proposition 64 marked a significant shift in California's approach to marijuana, it did not signify unregulated possession and use of marijuana. Instead, it set forth a structured system of regulations to ensure responsible use and address various legal and societal concerns.

One pivotal aspect of this regulatory framework is Health and Safety Code 11357. The law outlines the penalties and regulations related to marijuana possession. It takes into account age and quantity, among other factors. This code section plays a pivotal role in the more significant effort to maintain control and oversight of marijuana use in California.

Health & Safety Code 11357 sets out distinct rules for different scenarios based on age and quantity.

Health & Safety Code 11357(a)

This subsection addresses possession of small amounts of up to 28.5 grams of cannabis or up to 8 grams of concentrated cannabis.

Individuals under 18 commit an infraction if they are found possessing cannabis in the amounts stated above. Individuals between 18 and 21 will also face the penalties associated with the infraction, as addressed below.

Health & Safety Code 11357(b)

Subsection (b) of the same law addresses possession of larger quantities. Per the section, it is a crime to possess more than 28.5 grams of cannabis or more than 8 grams of concentrated cannabis.

Individuals under 18 in possession of cannabis in violation of this subsection commit an infraction. Those who are 18 years old or older commit a more serious crime.

Health & Safety Code 11357(c)

Subsection (c) of HSC 11357 addresses possession within or near a school.

If you are 18 or older and possess cannabis on school grounds, you are deemed to have committed a misdemeanor. Unlike an infraction, misdemeanor convictions result in fines and possible jail time. If you are under 18, you are deemed to have committed an infraction.

The law uses the terms cannabis and concentrated cannabis.

Cannabis and concentrated cannabis, also known as hashish or hash, are two different forms of the same plant, Cannabis sativa. They vary in terms of their concentration and physical characteristics.

Cannabis, commonly called marijuana, comprises the dried parts of the cannabis plant, including flowers, leaves, stems, and seeds. This widely-used substance serves both recreational and medical purposes. It can be consumed by smoking, vaporizing, or infusing into several products like edibles, beverages, or topicals. Cannabis contains various cannabinoids, including well-known ones like THC and CBD. Both have psychoactive and therapeutic effects.

Concentrated cannabis, also called hashish, undergoes a process of extracting resin from the trichomes, small resin-rich glands on the plant's surface that are high in cannabinoids. Hashish is notably more potent in THC, the psychoactive compound responsible for the "high" associated with marijuana use than regular cannabis. It appears as a solid or semi-solid substance, often in shades of brown or black. It can exhibit a range of textures, from crumbly to sticky.

The primary distinction lies in potency, with concentrated cannabis being significantly more potent than traditional dried cannabis. This increased potency makes it a preference for individuals seeking a stronger and quicker impact.

What Prosecutors Must Establish for the Jury to Find You Guilty

Prosecutors are tasked with proving various elements. Prosecutors must prove the following:

  • You were found with marijuana on your person, or you had control or access to the marijuana, even if it was not physically on you.
  • The substance in question is marijuana or concentrated cannabis. This could entail presenting evidence like lab reports or expert testimony to confirm the nature of the substance.
  • The amount you had exceeds the legal limit specified under HSC 11357.
  • Your age when you were arrested for simple possession of marijuana.
  • In some situations, like possession near a school, prosecutors must show that the marijuana was close to a school or on school grounds during school hours.

Defenses You Can Assert in a Marijuana Possession Case

In a marijuana possession case, there are various defenses that you can employ to contest the charges. Engage your attorney to choose a viable defense strategy based on the facts of your case. Below are some common defense approaches:

  1. You Did Not Possess the Marijuana

You can assert that you did not actually or constructively possess the marijuana in question. There are two types of possession, namely,

Actual Possession

If the marijuana was found on your person, you can argue that it was not yours or that you did not know it was there. For example, if you were in a vehicle with others and the marijuana was found in a shared area, you could claim it did not belong to you.

Constructive Possession

This type of possession means you had control or access to the marijuana, even if it was not on your person. You can assert that you had no knowledge of marijuana or control over it. For example, if it was discovered in a shared living space but not in an area exclusively controlled by you, you can argue that you did not have constructive possession.

Prosecutors must prove you had actual or constructive possession of the marijuana for you to be found guilty. Asserting you had neither creates reasonable doubt enough to impact the outcome in your favor.

  1. Momentary Possession

Asserting momentary possession of marijuana can serve as a defense against a charge of possession of marijuana for sale (as per California Health and Safety Code 11359). You must establish the following to assert this defense effectively:

  • Brief possession — You must demonstrate that your possession of the marijuana was brief and transitory, with no intention of prolonged ownership or distribution.
  • Legitimate purpose — You need to show that the reason for your possession was lawful and that you intended to abandon, dispose of, or destroy the marijuana. This underscores that you had a valid motive for briefly holding the marijuana.
  • No obstruction of law enforcement — Crucially, you must confirm that your intent was not to hinder law enforcement officials in obtaining the marijuana. Your actions should not have been intended to impede their efforts.

When invoking this defense, you are responsible for proving these elements. You must provide evidence that demonstrates it is more likely than not that your possession meets these criteria.

  1. The Marijuana Was Obtained Through an Illegal Search and Seizure

The Fourth Amendment protects individuals from unwarranted intrusions by law enforcement. In a marijuana possession case, this defense focuses on the legality of how the evidence was acquired.

Essentially, it questions whether the evidence was obtained through a lawful search. An illegal search occurs when law enforcement:

  • Searches without a valid warrant,
  • Lacks the necessary probable cause, or
  • Fails to obtain consent from the person being searched.

If it is established that the search in your case was conducted unlawfully, any evidence uncovered during that search could be considered inadmissible in court. This can substantially weaken the prosecution's case.

The chain of custody is another significant aspect of the illegal search and seizure defense. This deals with handling and preserving evidence from the moment it is seized until it is presented in court. Ensuring the integrity of evidence is crucial. The evidence must be documented appropriately and safeguarded to prevent tampering or contamination. If there are doubts or inconsistencies in the chain of custody, it can cast uncertainty on the reliability of the evidence, potentially rendering it inadmissible.

If these issues arise, your attorney will likely initiate a PC 1538.5 motion to suppress evidence. If this motion is successful, it can lead to one of two potential outcomes:

  • Dismissal — Should the motion be granted, the evidence in question could be deemed inadmissible, potentially resulting in the dismissal of the charges against you.
  • Significant reduction of charges — In certain instances, the success of this motion can result in a substantial reduction of the charges you are facing.

Penalties Outlined Under HSC 11357

The penalties for possession of marijuana vary depending on the quantity, the age, and the location where you were arrested while you had the cannabis. Here is a look at the potential penalties:

  1. For an HSC 11357(a) Violation

For a first offense, you could be required to complete:

  • 4 hours of drug education or counseling and
  • Up to 10 hours of community service within 60 days.

In the case of a second or subsequent offense, the penalties become more stringent. You could be required to complete:

  • 6 hours of drug education or counseling and
  • Up to 20 hours of community service within 90 days.

If you are at least 18 but under 21 and are caught with up to 28.5 grams of cannabis or up to 8 grams of concentrated cannabis, you will face a fine of up to $100.

  1. For an HSC 11357(b) Violation

For a first violation of HSC 11357(b), you will need to complete:

  • 8 hours of drug education or counseling and
  • Up to 40 hours of community service within 90 days.

If you commit a second or subsequent offense, the penalties become stricter. You will be required to finish:

  • 10 hours of drug education or counseling and
  • Up to 60 hours of community service within 120 days.

For individuals aged 18 or older, if you possess more than 28.5 grams of cannabis, over 8 grams of concentrated cannabis, or both, the consequences are more severe. You could face:

  • Up to six months in jail.
  • A maximum fine of $500 or both.

  1. For an HSC 11357(c) Violation

Being caught in possession of marijuana in violation of HSC 11357(c) on school grounds during school hours or related programs for grades K–12 when you are 18 or older is a misdemeanor violation. You could receive a fine of up to $250 for a first offense.

In the case of a second or subsequent offense, including:

  • A maximum fine of $500.
  • Up to 10 days in jail, or both.

If you are under 18 and found with not more than 28.5 grams of cannabis or not more than 8 grams of concentrated cannabis in the specified school areas during school hours or related programs, you will have committed an infraction. The penalties are:

  • Community service hours.
  • Mandatory attendance and completion of drug education or counseling.

Resentencing and Redesignation Provisions Applicable to Juvenile Adjudications

Proposition 64 made explicit provisions for revisiting and reclassifying convictions impacted by the law’s modifications. It extends these provisions to include cases of delinquency adjudications and dispositions involving juveniles. These critical measures are laid out in HSC 11361.8. They provide an avenue for any child with a prior or current marijuana-related adjudication to seek resentencing under the updated legal framework.

Additionally, individuals can request that their previous offense be reclassified as an infraction if it initially fell under the category of a misdemeanor or felony. This legal structure ensures that individuals with juvenile adjudications linked to marijuana can harness the benefits arising from Proposition 64's reforms.

Proposition 64 significantly alters HSC 11361.5. It outlines the procedures for dealing with arrest and conviction records linked to marijuana-related offenses. These statutory amendments introduce several notable changes:

  • Expanded range of record destruction — The revised law includes more marijuana-related offenses eligible for record destruction. The only exception to this expanded scope is Section 11357.5. This law addresses crimes involving synthetic cannabinoids. For juveniles, these records can be slated for destruction two years after the conviction date or, in cases where there is no conviction, two years after the arrest date.
  • Maintenance of school-related offenses — Records of crimes occurring within K–12 school premises will be retained until the offender reaches 18 years. At this point, they are slated for destruction.
  • Purging from statewide databases — Besides destruction at the court record level, these offense records must be removed from statewide criminal justice databases.

Additionally, Proposition 64 outlines the process for sealing records of convictions that have been dismissed, specifically for individuals who have served their sentences. The court must seal the conviction as legally invalid. However, Proposition 64 does not explicitly address the sealing of records for convictions that the court dismissed while individuals are serving a sentence.

It is also necessary to take note of convictions that have been redesignated under Proposition 64 rather than dismissed. Proposition 64 does not provide provisions for sealing the records of individuals who are either still serving or have completed their sentences.

Crimes Related to Possession of Marijuana

  1. Possession of Marijuana With the intent to Sell

Health and Safety Code Section 11359 in California makes it a crime to possess marijuana with the intent to sell or distribute it. This section of the law specifically targets individuals with marijuana to sell.

Possessing marijuana for sale is a distinct offense from simple possession for personal use, and it carries more severe penalties.

You are only guilty if prosecutors prove the following elements are actual:

  • You either possessed the cannabis or exercised control over it, even if it was not on your person — This could include situations like having cannabis in a vehicle or within shared living spaces.
  • Cannabis — The substance must be cannabis, encompassing marijuana and related products.
  • Possession for sale — It must be proven that you intended to sell or distribute the cannabis. This intent can be inferred from various factors, for example, the quantity of cannabis, possession of packaging materials, scales, or evidence of drug-related transactions.
  • Knowledge — You should have known of the cannabis's presence and its intended use for sale. This element is crucial for distinguishing between personal use and possession for sale.

Penalties for the Possession of Marijuana for Sale

Possessing marijuana for sale without a license in California is considered a misdemeanor for most individuals. This offense carries a penalty of:

  • Up to 6 months in jail.
  • A maximum fine of $500 or both.

However, following Proposition 64, convictions can lead to felony penalties under HS 11359 under certain conditions. These conditions include:

  • Prior convictions for serious violent felonies — If the defendant has a previous conviction for a list of grave violent felonies could face felony charges. These felonies include:
  1. Murder.
  2. Sex crimes involving a child under 14.
  3. Sexually violent offenses.
  4. A sex crime mandating registration as a sex offender or
  5. Gross vehicular manslaughter while intoxicated.
  • Two or more prior misdemeanor convictions — Defendants with two or more prior misdemeanor convictions related to marijuana possession for sale could also be subject to felony charges.
  • Sale to an individual under 18 — If you had marijuana for sale with the intent to knowingly sell or attempt to sell it to an individual under 18, you could face felony consequences.

In any of these scenarios, you will be charged under HS 11359. Penalties include:

  • A sentence of 16 months, 2 or 3 years in jail.

In some cases, negotiating to plead guilty to a lesser charge of simple possession to access a drug diversion program can be a potential strategy. The ability to negotiate a plea deal like this varies based on several factors, including:

  • The strength of the evidence against you.
  • Your prior criminal history and
  • The prosecutor's willingness to consider this arrangement.

Drug diversion programs are designed to provide treatment and support for individuals struggling with substance abuse issues, with the goal of rehabilitation rather than punishment.

You could also qualify for summary or misdemeanor probation as an alternative to serving jail time. You will not face imprisonment for this offense if the court grants probation. Nevertheless, probation comes with specific conditions and constraints, including:

  • Completion of community service or community labor.
  • Potential obligations for making restitution payments, if applicable.
  • Participation in individual or group therapy sessions.
  • Compliance with mandatory drug testing as required.
  • Submission of periodic progress reports to the court.
  • Being subject to searches of your person or property, with or without a warrant.

Find a Criminal Defense Attorney Near Me

Bakersfield attorneys at California Criminal Lawyer Group come equipped with the essential experience and legal acumen required to mount a robust defense against allegations of simple marijuana possession. Our seasoned attorneys understand California's marijuana laws and the ever-changing legal framework governing cannabis. It matters not if you find yourself confronting charges as a first-time offender or have a history of legal matters. Our team is on standby, ready to offer adept representation, safeguard your legal rights, and guide you through complex legal procedures.

Confronting allegations of simple marijuana possession can be a daunting ordeal. However, with the expert guidance of our team, your prospects of securing a positive resolution can significantly improve. We are unwavering in our commitment to assisting you in pursuing the best legal outcome for your case. Therefore, call us today at 661-750-8230 to schedule a free case assessment.