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July 22, 2005

Marijuana Laws Possession, Distribution, Transportation, and Cultivation

By Vince Imhoff, Esq., & Dan Rhoads

Jay gets into his car carrying a small bag of marijuana in his pocket. After driving for a few miles, his car breaks down; and Jay calls his friend Dee. Jay offers to exchange some of his marijuana for a ride back to his house, and Dee agrees. Back home, Jay prepares the marijuana by pulling the usable leaves off the stem.

In possessing marijuana and transporting it, Jay has committed two misdemeanor offenses. Jay also faces two felony countscultivation and possession for saleeach of which is punishable by up to 3 years in prison. Dee faces prosecution for at least 1 misdemeanor and possibly a felony. The risk of severe punishment lies in Californias anti-marijuana statutes.

Possession

Possessing not more than 28.5 grams of marijuana is a misdemeanor punishable by a fine of not more than $100. Cal. Health & Safety Code 11357(b). For a violation on school grounds, the fine can be as high as $500; and the defendant can serve up to 10 days in jail. 11357(d). Possession of more than 28.5 g, for personal use, carries a maximum fine of $500 and/or 6 months in the county jail. 11357(c).

The law recognizes joint possession; so, more than one person can be convicted for possession of the same bag. In People v. Villalobos, 245 Cal. App. 2d 561 (1966), an officer observed ten men huddled together in a location that was known to be a hangout for marijuana smokers. As the officer approached the group, a paper sack was thrown into the air; and the men scattered. The officer did not see who threw the sack and could not say that any specific member of the group had possessed the sack before it was thrown.

Because of joint possession, the officer could reasonably conclude that the sack was the common property--or at least in the common possession--of the entire group of ten men. Villalobos, 245 Cal. App. 2d at 564. However, the magistrate decided that Villalobos could not be convicted for possession of the sacks contents because the defendant was not shown to have been more than a spectator or hanger-on. Id. So, the state instead prosecuted him for marijuana debris that was found in his pocket.

Fortunately for Villalobos, the laws against drug possession do not refer to useless traces or residue. People v. Leal, 64 Cal. 2d 504, 512 (1966). So, the 50 mg of marijuana that were scraped from Villalobos pocket would not support a conviction for possession.

The usability requirement has been consistently upheld. Charred marijuana seeds cannot be used as a basis for conviction because they are useless for either a narcotic effect or for growing the plant. People v. Pohle, 20 Cal. App. 3d 78 (1971). Marijuana soaked in alcohol as a remedy for arthritis or rheumatism cannot support a conviction for possession because it cannot be used as a narcotic nor converted to a usable form. People v. Vargas, 36 Cal. App. 3d 499 (1973).

Possession for Sale

Possession of marijuana with the intent to sell is a felony punishable by detention in state prison for either 16 months, 2 years, or 3 years. Cal. Health & Safety Code 11359. Sale of drugs includes transfers for things other than money. People v. Peck, 61 Cal. Rptr. 2d 1 (1996). Intent to sell includes an intent that another person will sell the marijuana that the first person possesses. U.S. v. Sandoval-Venegas, 292 F.3d 1101 (9th Cir. 2002).

Circumstantial evidence and reasonable inferences drawn from that evidence can be used as evidence of intent. Narcotics experts, usually law-enforcement officers, may give their opinion about the possessors intent as testimony. Circumstances tending to prove intent to sell include the quantity of narcotic, equipment found with it, and place it was found. People v. de la Torre, 73 Cal. Rptr. 704 (App. 2 Dist. 1968).

Transportation or Distribution

Illegal distribution includes transporting, importing into the state, selling, furnishing, administering, or giving away marijuana, or attempting to do any of those things. The punishment for illegal distribution of more than 28.5 g is imprisonment in the state prison for 2, 3, or 4 years. Cal. Health & Safety Code 11360(a). If the amount is less than 28.5 grams, the punishment is a $100 fine. 11360(b).

One can be guilty of transporting marijuana without ever possessing it. For example, Sharon Botos drove her friend Kent Wenger to the airport after he had stayed at her house for several days. At the gate, a deputy U.S. marshal became suspicious of Wenger and eventually asked to search his luggage. One of his bags was locked, and Wenger at first denied having the key. But when the deputy marshal asked Wenger what he had in his pocket, Wenger pulled out a roach-clip with three keys attached to it. One of them opened the locked suitcase, which contained 6 kilos of marijuana.

Botos indictment for transporting marijuana was upheld. The court reasoned that the circumstances indicated that she knew what the suitcase held. Based upon those circumstances and on Wengers testimony, Botos was convicted. The court noted, her actual possession of the marijuana was irrelevant to the conviction for transporting it. People v. Botos, 27 Cal. App. 3d 774, 780 (1972).

Cultivation, Harvesting, or Processing

A person who unlawfully plants, cultivates, harvests, dries, or processes any marijuana is guilty of a felony. Cal. Health & Safety Code 11358. Although the cultivation statute seems to implicate conduct at the top of the distribution chaini.e., growing marijuana plantsit also applies to the casual user. This is so because of the word processes.

In People v. Tierce, the court held, one who removes the leaves from marijuana plants in order to render the leaves usable for smoking is engaged in processing the drug and thus violates the provisions of [the cultivation statute]. Tierce, 165 Cal. App. 3d 256 (1985). Although the defendant in the case argued that the statute could not have intended to subject casual smokers to felony charges, the court disagreed.

Back to Jay

In addition to maximum fines of $100 for each count of possession and transportation, Jay could be sentenced to prison time. Because he intended to trade marijuana for a ride from Dee, Jay would face a prison sentence of at least 16 months for violating 11359. Jay also committed a felony when he processed the marijuana. If a prosecutor could prove everything Jay did, he would face at least 2 years and 8 months in prison for his exploits during that one day.

Although simple possession is no longer punished severely, violating some marijuana laws leads to serious charges. Due to the scope that the courts have given to some of those laws, seemingly victimless actions can constitute felony offenses. When facing prison time, a person needs a defense attorney who will be a zealous advocate; or he is left to rely on the mercy of a prosecutor or a judge.

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