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Possession of Marijuana With Intent to Sell - HS 11359

Regardless of the amount, possession of marijuana with the intent to sell is a felony punishable by 16 months, or two or three years of imprisonment. The good news is, proving intent is one of the most difficult things the District Attorney is tasked with. However, it is not impossible. In cases involving intent, prosecutors will use what is known as circumstantial evidence in proving their case. But, circumstantial evidence is often rendered unreliable when criminal defendants acquire representation by an expert attorney, and do not cooperate with a law enforcement investigation until doing so.

Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code. Health and Safety Code, Section 11359

According to CALCRIM 2352. Possession for Sale of Marijuana (Health & Saf. Code, §§ 11018, 11359), to prove that the defendant is guilty of this crime, the People must prove that:

  • The defendant possessed a controlled substance;
  • The defendant knew of its presence;
  • The defendant knew of the substance’s nature or character as a controlled substance;
  • When the defendant possessed the controlled substance, (he/she) intended to sell it;
  • The controlled substance was marijuana;
  • AND
  • The controlled substance was in a usable amount.

According to the CALCRIM, selling for the purpose of this instruction means exchanging the marijuana for money, services, or anything of value. A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.

In addition, the People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance. Two or more people may possess something at the same time. A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person. Agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.

Some factors that a prosecutor might argue a jury should consider in a possession for sales case include the quantity, how the marijuana was packaged, the existence of large amounts of cash, scales, or other indicia consistent with dealing. These are considers examples of circumstantial evidence.

It is important that an experienced criminal defense attorney look at the facts of the case—as well as the legality of the search—and advise the client accordingly. In some cases police officers fail to legally search the contents of a person and their belongings, resulting in a violation of the individuals constitutional rights and guarantees.

If you are charged with possession for sale of marijuana, contact the Johnson Criminal Law Group today.

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