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Selling Marijuana: California Health and Safety Code § 11360

On January 1, 2018, California legalized the sale of recreational marijuana to adults age 21 and over for businesses licensed to sell marijuana. However, the state prohibits selling, giving away, importing into the state, or transporting for sale any amount of marijuana or concentrated cannabis without a having the required state and local licenses under Health and Safety Code §11360.

In California, juveniles are generally exempt from criminal fines and imprisonment for marijuana offenses. Under Health and Safety Code §11360(a)(1), people under the age of 18 found in violation of the section are guilty of an infraction and will be required by the court to complete:

• For the first offense, a juvenile will be required to complete eight (8) hours of drug education or counseling and up to 40 hours of community service; or
• For any subsequent offense, a juvenile will be required to complete ten (10) hours of drug education or counseling and up to 60 hours of community service.

Adults over the age of 18 are punished with either a non-arrestable infraction, a criminal misdemeanor, or a felony depending on the specific circumstances of the defendant. The felony penalties for a marijuana offense under §11360(a)(3) are two, three, or four years in county jail and/or a fine not exceeding ten thousand dollars ($10,000). There are serious consequences to a California felony conviction, such as:

• You must disclose the conviction on an employment application;
• You will be banned from owning a firearm in the state; or
• You will no longer be eligible for financial aid.

Under Health and Safety Code §11360(b), it is illegal to give away or transport less than an ounce of marijuana, other than concentrated cannabis. Unlike §11360(a), which makes it a misdemeanor or felony to sell, import, or transport over an ounce of marijuana, a person convicted under this subdivision is guilty of an infraction punishable by a fine not exceeding one hundred dollars ($100). In addition, any person arrested for violating this subdivision who does not demand to be seen by a judge shall not be taken into custody upon showing proper identification and promising to appear in court.

Under Health and Safety Code §11360(a)(2), any person over the age of 18 who illegally sells, imports or transports for sale, or distributes marijuana into the state is guilty of a misdemeanor. The misdemeanor penalties are imprisonment in county jail for no longer than six (6) months, a fine not exceeding five hundred dollars ($500), or both.

Under Health and Safety Code §11360(a)(3)(A-D), a felony enhancement for the illegal sale or transportation of marijuana is allowed if the defendant is over the age of 18 and any of the following is true:

• You have a prior conviction for one of the violent felonies that falls under California’s Three Strikes Law, or have been convicted of a sex offense requiring registration as a sex offender;
• You have two or more prior convictions under §11360;
• You knowingly sold or attempted to sell marijuana to a minor; or
• Your offense involved the import, offer to import, or attempted import into California, or the transport for sale, offer to transport for sale, or attempted transport to sell more than an ounce of marijuana or more than four (4) grams of concentrated cannabis.

Legal defenses for people facing a conviction under Health and Safety Code §11360 vary depending on the circumstances of the defendant’s case. The most common defenses to charges under §11360, include:

• Defendant had no knowledge the marijuana was present,
• Defendant is a medical marijuana patient transporting the marijuana for personal use,
• Defendant is the primary caregiver of a medical marijuana patient transporting medically necessary marijuana for their patient,
• Defendant gave away the marijuana, not sold it, or
• Police found the marijuana during an illegal search and seizure.

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