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Health and Safety Code 11360(a): Possessing Marijuana to Sell or Transporting to Sell

11360. (a) Except as otherwise provided by this section or as authorized by law, 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.

This California Health and Safety Code covers possessing a controlled substance for the purpose of transporting it, selling it, or providing it to another person. For a defendant to be found guilty of this crime, the prosecutor needs to prove five specific elements.

  1. That the defendant was responsible for selling, producing for sale, administering, or transporting marijuana in or into the state of California.
  2. That the defendant had knowledge that marijuana was present
  3. Knowledge on the defendant's part that substance was an illegal drug
  4. That the substance can be proven to be illegal marijuana
  5. That a usable amount of marijuana existed

Explanation of the law:

  • ELEMENT ONE:
  • Regarding the first element, it is sufficient that the defendant controlled the sale or movement of the marijuana. He or she does not actually have to touch the substance or physically distribute it to be found guilty under this section.
  • When a defendant is charged with possessing to sell, the act selling is not limited to a money transaction. An exchange of anything for value can be considered selling.
  • ELEMENTS TWO & THREE: The defendant must have knowledge of both the controlled substance character of the substance and knowledge of its presence.
  • ELEMENT FOUR: The fourth element, which requires proving that the substance is in fact marijuana means that it must be shown it is part of the Cannabis Sativa L. plant or a derivative thereof. Things such as the grown stalk of the plant, or sterilized seeds are not included in this definition.
  • ELEMENT FIVE:
  • “Usable amount” means there was a sufficient amount of the drug to allow someone to ingest it for drug consumption purposes, even if it is not enough to get “high.”
  • The fifth element, regarding a usable amount, does not need to be proven in a case involving the sale of marijuana. One can still be liable for the illegal sale of a drug even if it is not a usable amount per People v. Peregrina-Larios (1994) 22 Cal.App.4th 152

Lesser Included Offenses:

  1. Health & Safety Code 11357 – Simple Possession
  2. Health and Safety Code 11359 – Possession for Sale of Marijuana

Defenses to H&S 11360

  1. Medical Marijuana is NOT a defense: A person charged with possession of marijuana for sale cannot use the Health and Safety Code section 11362.5 medical marijuana defense. People v. Galambos (2002) 104 Cal.App.4th 1147.
  2. Entrapment: an entrapment defense can be asserted where police performed significant, overreaching acts to induce an otherwise law abiding person to act in an illegal manner. A California case involving the sale of drugs where entrapment worked as a defense is People v. Barraza, 23 Cal.3d 675. Here, an undercover agent repeatedly pressured the defendant to make a sale of heroin. The court found that the actions taken by police were so extremely coercive that a reasonable person would have given in to the demands. Entrapment defenses are hard to prove, and will not work where the defendant was predisposed to committing a crime.
  3. Lack of intent to sell: If the defendant is charged with the sale of a drug, as described in the first element of the crime, he/she can assert that they did not have the intent to sell which would negate a required element of the offense.
  4. Lack of knowledge the drug was present: Another defense that negates an element of the offense is that the defendant did not have the required knowledge that the drug was present (i.e. in a transportation case). Similarly, a defendant might assert that he or she did not know that the drug was an illegal, controlled substance.

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