11359. 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.
Potential Sentence: up to three (3) years in prison and a $10,000 fine
Under this code section, the prosecution must prove:
- Possession of a controlled substance.
- Knowledge that the illegal substance was present.
- Knowledge that the substance was illegal.
- Intent to sell the substance at the time it was in his or her possession.
- The substance was marijuana.
- There was a usable amount of marijuana.
Explanation of the Law:
- Element One: Possession occurs where the defendant had control or the right to control a substance. It isn't necessary that the drug be located on the defendant's person. Additionally, a person can possess a substance through another person if he or she maintains the right to control it.
- Element Two: It is not required that the prosecutor show the defendant had knowledge as to what illegal drug he possessed, i.e. the defendant could have believed he had cocaine, but it really was marijuana.
- Element Three: It is not a requirement that the prosecution show that the defendant knew which illegal drug he/she possessed.
- Element Four: The intent to sell means that the defendant intended to exchange the marijuana for monetary gain or any other benefit.
- Element Five: Marijuana is defined in Health & Safety Code 11018. Marijuana is any part of the Cannabis sativa L. plant including its seeds and resin or a derivative thereof. It does not include the grown stalks or products derived from them. Nor does it include sterile seeds or their products.
- Element Six: a usable amount is a quantity that can be used for drug consumption or sale even if it cannot produce a narcotic effect. Debris does not count as a usable amount.
- Personal use
- No knowledge of presence: i.e. the defendant drove someone else's car and was unaware the marijuana was there.
- Valid Compassionate Use Act situation