Most people are aware that possession of marijuana is legal for adults aged twenty-one (21) and older since the enactment of Proposition 64 on November 8, 2016. However, many are unaware that there are exceptions to this legalization. There are several behaviors related to marijuana use and possession that could attract criminal charges.

According to Health and Safety Code (HS) 11359, possession of cannabis or marijuana for sale is illegal unless under certain circumstances. If you are under investigation or charged under this statute, retaining the services of an attorney would be a brilliant idea because your freedom is at stake.

Although every case is unique, our attorneys at California Criminal Lawyer Group can investigate your entire case to see how the circumstances and facts surrounding the charge could offer you a chance for a successful defense. Do not hesitate to contact us if you are in police custody or under investigation for an alleged HS 11359 violation in Bakersfield.

An Overview of an HS 11359 Charge

Generally speaking, Proposition 64, also known as Prop 64, allows adults aged 21 or older to buy and possess not more than 28.5 grams (one ounce) of cannabis for personal use. That means possession, buying, or carrying more than an ounce of marijuana could indicate that you have the criminal intent to distribute or sell the controlled substance, which is illegal unless:

  • You have a state license to sell or distribute recreational marijuana.
  • You have a valid medical prescription to use marijuana or a valid and up-to-date license to sell or distribute medical marijuana.

Specifically, HS 11359 makes it a crime for any person except for the ones authorized by the law to carry and possess marijuana with the criminal intent to sell the substance unlawfully. If you are under investigation on suspicion that you had cannabis for sale in your possession, hiring a defense attorney is a decision you cannot regret to stand a chance of securing a desirable outcome.

The Criminal Court Procedures to Anticipate if You Have a Charge Under HS 11359

Like any other criminal case, when charged with the crime of marijuana possession for sale under HS 11359, your case will go through various court stages before it resolves, including:

  1. Arraignment or Bail Hearing

Although your attorney can attend this hearing on your behalf, arraignment is a crucial court proceeding in the criminal justice system. After an arrest, you have a legal right to an arraignment hearing within twenty-four (24) hours, unless your arrest occurred on a weekend. Your arraignment could occur within forty-eight (48) hours in that situation.

At this proceeding, the judge presiding over your case will do the following:

  • Inform you of your constitutional rights, including the right to a public defender if you are indigent or cannot afford a private attorney.
  • Read or inform you of the charges you are up against.
  • Ask you to enter or choose a plea of choice, including:
  1. Guilty.
  2. No contest.
  3. Not guilty.
  • Check your eligibility for bail and inform you of future hearing dates and times.

When determining whether you are an excellent candidate for a pretrial release on bail, the court will consider factors such as:

  • Your criminal record.
  • Your family ties.
  • Your likelihood of fleeing after securing your freedom.
  • Your conduct and behavior in court.
  • The severity and sophistication of your charges.

  1. Pretrial Hearing

The court will use the pretrial hearing to assess the progress of your HS 11359 charge. During this phase of the court process, the judge could decide to solve any emerging issue related to your case. Your defense attorney and the prosecution team will also have a chance to exchange evidence to determine whether your charge qualifies to stand trial.

At this hearing, your attorney could also file the following motions with the judge presiding over your case to secure a desirable outcome:

  • A motion to suppress illegally obtained evidence.
  • A motion to dismiss.
  • A "Pitchess" motion.
  • A Serna motion.

Since this is the stage where most criminal cases end, working with an experienced defense attorney is critical. He/she will have a higher chance of obtaining a favorable outcome than an inexperienced attorney with little or no credibility in the local courthouses.

  1. Trial Hearing

If you decide to maintain your "not guilty" plea and your case fails to resolve at the pretrial stage, you should prepare for a trial hearing, which is your legal right. Most likely, your trial will be a jury trial, which includes twelve (12) members of society ready to decide whether or not the allegations you are up against are true.

However, if you are uncomfortable with jurors determining whether or not you are guilty of the charges you are up against, you can request a bench trial, where a judge will determine your fate. Whether you opt for a bench or jury trial, the criteria for obtaining a conviction against you will not change.

The prosecution team must prove the facts listed below beyond a reasonable doubt to be guilty under HS 11359:

  • You had a controlled or unlawful drug substance in your possession.
  • You were aware of the substance's presence.
  • You were aware the substance was an unlawful or controlled drug substance.
  • You had the criminal intent to sell it unlawfully, meaning you did not have the required licenses to do so.
  • The drug substance was cannabis, also known as marijuana or “pot.”
  • The substance was in a usable amount.

For the sake of HS 11359, you must understand the following terms, which are critical in defining the above facts or elements of the crime.

  1. Marijuana

If you had any part of marijuana, whether growing or not, you could be guilty under this statute, including leaves, seeds, or the organic substance extracted from the plant.

  1. Possession

The possession of the controlled substance could be constructive or actual. According to HS 11359, you have "actual" possession of cannabis if it was in your person, bag, pockets, or perhaps you were holding it.

Conversely, you have "constructive" possession of marijuana if it is within a place you have control over, for instance, an apartment. That means you could be guilty under HS 11359 even though you were not holding the substance at the time of the arrest.

  1. Knowledge of the Cannabis Presence

Having the authority to control the cannabis in question is not sufficient to make the prosecutor obtain a conviction against you under HS 11359. The prosecution team must prove that you were aware of its presence.

For instance, if your cousin hides two ounces of cannabis in the kitchen cabinet and does not tell you about it, you would not be guilty under this statute because you did not know of the substance's presence.

  1. Criminal Intent to Sell Marijuana Unlawfully

For the sake of HS 11359, "selling" means exchanging cannabis for services, money, or any other item of value. Although your intent to sell marijuana that you had in your possession could be challenging to prove, the prosecutor could use the following circumstantial evidence to prove to the court that you are guilty under HS 11359:

  • The amount of marijuana you had in your possession exceeded the legal limit.
  • You had drug paraphernalia in your possession, including scales and small baggies.
  • The baggies or containers you had in your possession had equal amounts of marijuana.
  • You had weapons or cash in your possession.

  1. The Sentencing Hearing

If the jurors unanimously find you "not guilty," the court will dismiss your case and allow you to go free. However, when the jurors unanimously find you "guilty" of the allegations you are up against, your HS 11359 case will proceed to the sentencing hearing unless the court grants you a motion for a new trial.

Generally speaking, a sentencing hearing is a chance for the prosecution team and your attorney to suggest or pitch to the jurors what they believe would be a fair sentence for your HS 11359 violation conviction. Your attorney will present mitigating evidence and arguments on why he/she thinks you deserve a lighter sentence for your offense.

On the other hand, the prosecution team will present aggravating arguments on why they believe you deserve harsh punishment for your violation. After carefully listening to both sides of the story, the jurors will decide the exact fair sentence for your offense within the framework of what is lawfully permissible.

Potential Legal Punishment for a Conviction Under HS 11359

Possession of cannabis for sale without a valid and legitimate license is chargeable as a misdemeanor offense, punishable by up to six months of jail time and a fine not exceeding $500 upon conviction. However, according to Prop 64, a conviction under HS 11359 will attract felony penalties if any of the facts listed below are true:

  • You have two or more convictions for illegal sale of marijuana.
  • You have a past conviction for a violent felony, including murder, rape, or sexual assault.
  • The illegal possession of marijuana was in connection with an attempted or knowingly sale of cannabis to a person aged 18 years or below.

In any of these scenarios, you would face a maximum of sixteen months, two, or three years of custody in the county jail upon a conviction under this statute. If your offense is a misdemeanor, you could qualify for informal probation instead of serving your sentence behind bars. However, you must be ready to comply with specific restrictions, including:

  • Pay restitution.
  • Submit to regular drug tests.
  • Perform community service.
  • Participate in group or individual therapy.
  • Comply with regular and random warrantless searches on your premises or property.

Other Potential Repercussions of a Conviction Under HS 11359

A conviction under HS 11359 will leave you with a criminal record, which could negatively affect your life in various ways. Below are examples of various aspects of your life that a conviction under this statute could negatively affect:

  • Housing – Several landlords nowadays have policies and rules against renting their houses to people with felony convictions, especially for drug-related offenses.
  • Employment – A felony conviction under HS 11359 could make it challenging to find a reliable job because many employers do not want to work with people with criminal records.
  • Higher education – If you have a felony conviction under 11359, it could be challenging to proceed with your higher education because many colleges and universities do not admit students with felony criminal records.
  • Professional licenses – Even if you are qualified to obtain a professional license, licensing agencies will not give you a practicing license if you have a felony conviction under HS 11359. Similarly, if you already have your professional license, the licensing body or agency could revoke or suspend it upon a conviction under HS 11359.
  • Immigration – A felony conviction under HS 11359 could be a concrete ground or reason to deny you citizenship, immigration visa, or green card. If you already have a visa, you could also be at risk of deportation upon a felony conviction under this statute.
  • Child custody – A felony conviction under HS 11359 could sway the judge's decision during a child custody battle, making him/her consider you an unfit or irresponsible parent.

How to Challenge Criminal Charges Under HS 11359

As you can see above, the impact of a conviction under HS 11359 could follow you even after serving your sentence, making your life unbearable. However, with the help of a compassionate and skilled defense attorney, you could stand a chance of obtaining a desirable outcome in the complex criminal justice system, which is not on your side.

An experienced defense attorney can help you avoid a conviction under HS 11359 or lessen the stigma associated with a conviction using the following legal defenses:

  • The substance in question was not marijuana.
  • You did not have the criminal intent to sell or distribute cannabis or marijuana.
  • The marijuana in question was not in your possession.
  • You were unaware of the substance's presence.
  • The evidence the prosecutor has against you is a result of an illegal or warrantless search.
  • The evidence the prosecutor has against you is a result of illegal surveillance or wiretapping.
  • The evidence the prosecutor has against you is a result of an unlawful traffic stop.
  • You are a victim of police misconduct, like racial profiling.
  • You are a victim of false allegations.
  • The prosecutor's evidence against you is insufficient.
  • You have a legal and valid license to sell the substance.
  • You have a valid medical prescription to use the substance.

Since every case's facts and circumstances differ in one way or another, a seasoned defense attorney will know which defenses to apply to your unique charge to secure a favorable outcome.

Crimes Related to Illegal Possession of Cannabis for Sale Under HS 11359

Certain offenses are closely related or similar to the offense of possession of cannabis for sale under HS 11359 because they share similar elements of the crime, which the prosecutor must prove to secure a conviction against you. Some of these crimes include (but are not limited to) the following:

  1. Cultivation of Marijuana

According to Prop 64, also known as the Adult Use of Marijuana Act, an adult aged 21 years or older can legally plant, cultivate, and harvest not more than six plants of cannabis in his/her compound as long as:

  • The cultivation area is inaccessible to children.
  • The cultivation area is out of the public’s view.

To that end, when you cultivate more than six cannabis plants or plant them where it is not lawfully permissible, you could be in trouble with the law under HS 11358. For many adults, this crime is chargeable as a misdemeanor, carrying the following potential penalties upon conviction:

  • A jail term of up to six months.
  • Up to $1,000 maximum fine.

However, if any of the following facts are true, the prosecutor could file your offense as a felony, carrying harsher penalties:

  • You have severe violent felonies on your record.
  • You are a registered sex offender.
  • You have two or more past convictions under HS 11358.

  1. Illegal Sale of Marijuana

According to Prop 64, you can sell cannabis or marijuana lawfully only if you have a valid license to do so. Therefore, if you are unlicensed, it will be a misdemeanor offense for you to sell or transport marijuana with the criminal intent to distribute or sell it. If you are guilty of the illegal sale of marijuana under HS 11360, your sentence will include:

  • Up to $1,000 maximum fine.
  • A maximum of six months of jail time.

The unlawful sale of cannabis is typically a misdemeanor. However, the prosecutor could file your offense as a felony if any of the following facts are true beyond a reasonable doubt:

  • You have sex crimes or violent felonies on your record.
  • Your arrest was in connection with the attempted or sale of cannabis to a person aged eighteen years or younger.
  • You have two past convictions for illegal transportation or sale of marijuana.
  • You imported or attempted to import the controlled substance out of the state for sale.

  1. Driving With Cannabis or Marijuana

According to Vehicle Code (VC) 23222(b), it is illegal to drive or operate a vehicle while having an open jar or container of cannabis in your possession. If the prosecutor's evidence is insufficient to secure a conviction against you under HS 11359, he/she could file a VC 23222(b) charge against you. Fortunately, a VC 23222(b) charge is an infraction, carrying a fine of up to $100.

Frequently Asked Questions About Possession of Marijuana for Sale Offense Under HS 11359

Upon an arrest on suspicion that you are a culprit in a criminal case involving possession of cannabis for sale, many questions will run through your mind. Some of the frequently asked questions that many arrestees or defendants in the same situation ask include:

  1. Will I Be Eligible for a Release from Jail on Bail?

Yes, since possession of marijuana is not a capital crime or violent felony, you could qualify for a release on bail to await your case's hearings while at home with your family. However, the court must consider several factors mentioned in the previous paragraph before allowing you to secure your freedom.

  1. Can I Fight a Charge Under HS 11359 Without an Attorney?

While it is possible to represent yourself in court, hiring an attorney who understands the ins and outs of the legal system to do so is a brilliant idea. Even if you are an attorney, you will have more chances of obtaining a dismissal of the case or a reduced sentence if you have an attorney who understands the nature of drug-related offenses in the eyes of the court.

  1. How Do I Find a Dependable and Trustworthy Defense Attorney?

The reliability and trustworthiness of the defense attorney you choose can mean the difference between imprisonment and acquittal of the case. To stand a chance of obtaining a desirable outcome upon an arrest on suspicion that you are a culprit in a criminal case involving illegal possession of cannabis for sale, you should look for a defense attorney with the following:

  • Proper licensing credentials.
  • Credible reputation among his/her past clients.
  • Significant experience defending clients with drug-related charges.
  • Cost-friendly services.
  • Flexible work schedule.
  • Excellent communication skills.

Find a Trustworthy Bakersfield Defense Attorney Near Me

You cannot risk going through the convoluted criminal court system without legal representation when facing charges under HS 11359, especially when your freedom and livelihood are on the line. At the California Criminal Lawyer Group, we understand how local judges and prosecutors treat drug crimes. We will stop at nothing until we obtain a desirable outcome on your HS 11359 charges.

We invite you to call us at 661-750-8230 to schedule your initial obligation-free consultation with our defense attorneys, wherever you are in Bakersfield. Our reliable and competent attorneys will be with you through every stage of the court process, offering you legal advice and representation for the best possible outcome.