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Selling or Distributing Marijuana to a Minor - HS 11361 (a) and (b)

Giving or selling marijuana to a minor, or using a minor to transport, carry, distribute or sell, is a felony punishable by three to seven years in prison, depending on the age of the minor, circumstances of the case and criminal history of an individual.

Every person 18 years of age or over who hires, employs, or uses a minor in unlawfully transporting, carrying, selling, giving away, preparing for sale, or peddling any marijuana, who unlawfully sells, or offers to sell, any marijuana to a minor, or who furnishes, administers, or gives, or offers to furnish, administer, or give any marijuana to a minor under 14 years of age, or who induces a minor to use marijuana in violation of law shall be punished by imprisonment in the state prison for a period of three, five, or seven years. Health and Safety Code, Section 11361(a)

Every person 18 years of age or over who furnishes, administers, or gives, or offers to furnish, administer, or give, any marijuana to a minor 14 years of age or older shall be punished by imprisonment in the state prison for a period of three, four, or five years. Health and Safety Code, Section 11361(b)

CALCRIM 2391 provides that to prove that the defendant is guilty of this crime, the People must prove that:

  • The defendant unlawfully offered to sell, furnish, administer, or give away marijuana, a controlled substance, to the minor;
  • When the defendant made the offer, he or she intended to sell, furnish, administer, give away the controlled substance;
  • At that time, the defendant was 18 years of age or older;
  • AND
  • At that time, the minor was under (18/14) years of age.

Selling for the purpose of this instruction means exchanging the marijuana for money, services, or anything of value. A person administers a substance if he or she applies it directly to the body of another person by injection, or by any other means, or causes the other person to inhale, ingest, or otherwise consume the substance. Anything of value may also include friendship, as there is no requirement that the “thing of value” actually have monetary value.

In a trial involving this crime, prosecutors may try and appeal to the jury’s emotion, citing irreparable harm to the juvenile to whom the marijuana was given. While this ought to be of concern to the public, it frankly has little to do with the elements of the crime, which must be proven beyond a reasonable doubt, as cited above. Thus, this crime is defendable since the prosecution must prove each of the elements to be true beyond a reasonable doubt.

An individual charged with this crime may seek a lesser offense. Some lesser offenses include Offering to Sell to Person Not a Minor (Health & Saf. Code 11360.), Simple Possession of Marijuana (Health & Saf. Code11357.) and Possession for Sale of Marijuana (Health & Saf. Code 11359.) However, the accused may also be at risk for the charge of Endangering a Minor.

Contact the Johnson Criminal Law Group for assistance with your case today.

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