Proposition 64, commonly abbreviated as Prop 64, legalized the use of marijuana for recreational purposes in the United States. However, it did not eliminate all the statutes relating to the possession or handling of marijuana. Prop 64 only modified marijuana statutes. Under California law, marijuana is still a controlled substance. It is an offense, therefore, under HSC 11357 to possess marijuana in certain circumstances. The rules relating to marijuana are complicated and continue to be modified daily. If you are currently facing possession of marijuana charges, you should consult a competent attorney to help you fight the charges. At the Monterey Criminal Attorney, we have experienced attorneys who have helped many clients fight possession of marijuana charges.

An Arrest For Violating HSC 11357

When the police arrest you and put you behind bars, your first concern is how to secure a release from custody. Being concerned about your freedom is normal, but you must comply with some steps before you walk free. Booking is one of these steps, where the officer in charge will do the following:

  • Take your fingerprints
  • Check your health status
  • Record your name, date of birth, address, and the accusations you are facing
  • Check if you have other pending cases or warrants
  • Take a mugshot
  • Conduct a thorough search on your person
  • Take your clothes and other personal property, like watches and jewelry

You could be released soon after the booking if law enforcement does not have a court order or warrant to arrest you for possession of marijuana. However, you could remain in custody if:

  • You give the officers the wrong name and address
  • You are likely to interfere with the evidence after it is released
  • You are likely not to show up for the court proceedings to prove your innocence
  • You could be a threat to the witnesses set to testify against you
  • You are likely to engage in additional criminal activity before your scheduled court date

If law enforcement decides to release you without bail after arrest, they will likely give you a court date notice or citation. You must sign the citation before you get out of custody. The citation will highlight the crime you have committed, the date, and the date and time you must show up in court to fight the accusations leveled against you.

A Release Is Not Automatic

It is not obvious that you will be released before trial after an arrest for possession of marijuana. The judge uses their discretion to determine whether you qualify for a release pending trial. The police must present you to court for arraignment or bail hearing within 24 hours if a judge is available.

At the bail hearing, the judge will consider some factors while determining whether you are eligible for release on bail. The factors include:

  • Your criminal record
  • Your record of attending court proceedings after your release on bail
  • The severity of your charges
  • The possibility that you will attend court proceedings after your release

The judge will order you to deposit the required bail amount with the court as soon as possible if you qualify for a release on bail. Bail is the amount you must pay the court clerk to secure your release before your case is determined.

You can pay your bail through cash, but most defendants prefer working bail bond companies to secure a surety bond at a lower cost.

Marijuana Offenses Charged And Punished Under HSC 11357

Any individual aged 21 years and older can legally buy or possess up to 28.5 grams of dried marijuana for personal use, according to Prop 64. Prop 64 also allows you to buy or possess concentrated cannabis that does not exceed eight grams for personal use. While marijuana is legal under this law, you can only consume or smoke it in an apartment or private home if you have the permission of the owner. In this case, your landlord or employer has the right to ban smoking marijuana in the apartment where you stay or at the workplace.

Also known as Adult Use of Marijuana (AUMA), the enactment of Prop 64 legalized the non-medical personal use of marijuana. However, simple possession of marijuana could still put you in trouble with the law under certain circumstances. You could violate HSC 11357 in the following ways:

Possession Of Dried Marijuana Or Hashish On A School Compound

You could face charges under HSC 11357 if you are guilty of possessing concentrated or dried marijuana inside or on the grounds of an open K–12 school. According to HSC 11357, open K–12 schools include after-school programs or during normal school hours.

You could face misdemeanor charges if you are an adult aged 18 years or older. Misdemeanor charges could attract a fine that does not exceed $250. You could face infraction charges if you are a minor under 18 years old. Infraction charges could attract the following penalties:

  • Community service
  • Drug treatment

Possession Of Dried Marijuana Or Hashish By A Minor

You could face infraction charges under HSC 11357 if you are guilty of possessing dried marijuana or hashish and are under 21 years old. The potential penalties you could face include:

  • Enroll in a drug counseling or education program for six hours. You could also be ordered to participate in community service that does not exceed 20 hours if you are a repeat offender under
  • Enroll in counseling sessions or drug education for four hours and engage in community service for a period that does not exceed ten hours if you are a first-time offender under the age of 18.
  • A fine that does not exceed $100 if you are 18 years of age or older

Possessing Marijuana That Exceeds The Legal Limit

HSC 11357 permits the possession of marijuana weighing up to 28.5 grams. You could face criminal charges if you possess marijuana that exceeds this limit. You could face misdemeanor charges under HSC 11357 if you are 21 or older. Misdemeanor charges could attract the following penalties:

  • A jail term that does not exceed six months
  • A fine that does not exceed $500

If you are aged between 18 and 21 and possess more than 28.5 grams of marijuana, you can face infraction charges punishable by a fine of not more than $100. For people under 18 years who possess more than 28.5 or eight grams of hashish, the penalties can include the following:

  • Enroll in a counseling program
  • Participate in community service

Possession of marijuana remains a crime under federal law, despite President Joe Biden pardoning all convictions for simple possession of marijuana on October 6, 2022.

What You Should Do If You Being Investigated For Possession Of Marijuana

If you are under investigation for possession of marijuana, the steps you take could significantly influence the outcome of your case. The following are some of the steps you should take to increase your chances of securing the best possible outcome:

Avoid Resisting An Arrest

The police can arrest you when you least expect it. Law enforcement can arrest you if they reasonably suspect you are a criminal activity culprit. Especially if the police do not have a court-approved arrest warrant, you can be tempted to resist the arrest. However, you should cooperate with law enforcement since resisting an arrest is a distinct offense. Any attempts to resist an arrest could make the underlying accusations more severe. Additionally, you could face assault charges if the arresting officer suffers an injury because you attempt to resist an arrest.

Remain Silent

It is advisable not to speak to law enforcement if you are under arrest or under investigation for any alleged crime. The arresting officer could misinterpret your well-intentioned talk and use your statements against you even if you are confident of your innocence. You should keep quiet to protect your best interests and legal rights.

Recognize Unlawful Search And Seizure

If the police officers arrest you, the most essential right you should remember is your legal right against unlawful searches and seizures. You will have viable grounds to secure a lesser charge if law enforcement obtains evidence on your person, house, or vehicle through an unlawful search.

Under California law, evidence gathered through illegal searches is inadmissible in court. The judge can dismiss your charges if the police discovered the marijuana through an illegal search.

Hire an Attorney

You should secure the services of an attorney even if you are not formally charged with possession of marijuana. Your attorney will be your legal counsel during the investigation process. In addition to defending you, your attorney will help you understand the specific laws that define the underlying marijuana case in a way you can understand.

You can even convince law enforcement to drop the case with the help of a competent defense attorney. In this case, you can avoid the arrest and booking process that leave you with a criminal record. Hire a reputable, experienced, qualified, and licensed attorney for the best possible outcome.

Fighting Possession Of Marijuana Charges

The court will schedule a trial date for your case once you enter a ‘’not guilty’’ plea, and a plea deal is unavailable at the arraignment hearing. At the hearing or trial date, the judge will review the details of your case. The judge will also listen to your attorney's or prosecutor’s arguments to decide whether you are guilty of the alleged crime.

A reliable attorney can present various legal defenses to challenge the prosecutor’s allegations. The standard of proof at trial should be beyond a reasonable doubt. Some of the defenses your attorney can present to fight possession of marijuana charges include the following:

The Law Enforcement Secured The Alleged Marijuana Unlawfully

Usually, cases associated with marijuana trigger illegal search and seizure issues. You have a legal right to stay free from unreasonable or unlawful searches, according to the 4th Amendment of the U.S. Constitution. In this case, law enforcement does not have legal rights to search your car or person without a legal search warrant. They are not allowed to search property or a location beyond the warrant's scope, even if they have a valid warrant.

Your defense attorney can file a motion to suppress the unlawfully secured evidence when these issues arise in the alleged HSC 11357 violation charge. If your attorney succeeds in convincing the court, the judge could do the following:

  • Drop your charges
  • Reduce your charges with less severe repercussions upon conviction

You Had No Knowledge That You Possessed Marijuana

Even if you had physical control of marijuana at the time of your arrest, your attorney could claim that you had no knowledge that you possessed marijuana. Under HSC 11357, it is not sufficient to prove that you had possession of marijuana to secure a conviction.

The burden of proof lies with the prosecutor to show that you knew that marijuana was in your possession. In this case, you will not face charges under HSC 11357 if your friend forgets their marijuana in your car because you were not aware of its presence.

Marijuana Was Not In Your Possession

You can only face the charges under HSC 11357 if the prosecutor provides persuasive and clear evidence that you had marijuana at the time of your arrest. Under HSC 11357, marijuana could be in your possession if it was:

  • Within your apartment, vehicle, or any other property that you have control of and the right to control or own
  • Within your person

This could be a valid defense if the marijuana the law enforcement seized in your apartment belonged to another person or your roommate.

Whether You Are Eligible For Expungement After A Conviction For Possession Of Marijuana

Adult use of marijuana was legalized after the modification of marijuana laws and the enactment of Prop 64. However, a conviction for violating HSC 11357 will result in a criminal record. In this case, a prospective landlord or employer will know you have a conviction record for violating HSC 11357. This is not good because:

  • Most landlords do not allow the use of marijuana in their houses. Therefore, a landlord could reject your tenant application form if you have a conviction record for HSC 11357 violation.
  • Most employers do not employ individuals with criminal records in their companies or businesses.

Fortunately, you can secure an expungement under PC 1203.4 to avoid all these detrimental repercussions of having a criminal record. An expungement can clear your criminal record from the public, although the court and law enforcement can still access it.

You can be eligible for an expungement under Penal Code 1203.4 and start afresh in your life. However, you can be denied an expungement if:

  • You currently have a new criminal charge
  • You are still serving probation for HSC 11357 violation conviction
  • You are still serving your jail term for HSC 11357 violation conviction

Whether You Are Eligible For A Pretrial Drug Diversion After An Arrest For Possession Of Marijuana

You can qualify for a pretrial drug diversion program because possession of marijuana is considered a non-violent and non-severe crime. Under Penal Code 1000, the judge will dismiss your case if you complete the required drug treatment program and comply with the required conditions.

However, the judge will resume your case if you fail to complete the treatment program. If this happens, you must attend court proceedings to challenge your charges for the best possible outcome. Most simple drug possession offenses, like 11357 violation convictions, qualify for diversion, according to PC 1000. However, the court could deny you this privilege if the following is true:

  • You had one or more felony convictions in the past five years
  • You have had one or more convictions for a drug that is ineligible for diversion under PC 1000 in the past five years

Related Offenses

The other marijuana crimes that could be charged along with possession of marijuana include:

Marijuana Cultivation Laws – HSC 11358

Unlawful cultivation of marijuana is covered under HSC 11358. It is lawful to grow marijuana for recreational use since Prop 64 provided that:

  • You comply with any applicable local municipality regulations
  • You cultivate not more than six marijuana plants at a single private home
  • You are 21 years or older

HSC 11358 allows partners or spouses sharing a residence to cultivate not more than six plants, but not six plants each. Recreational growing and use of marijuana do not require a cultivation license.

If you cultivate marijuana illegally, you could:

  • Receive drug treatment
  • Face punishment under HSC 11358
  • File a petition for resentencing according to Prop 64

You could face infraction charges if you grow marijuana and are 18, 19, or 20 years old. In this case, infraction charges could attract a fine that does not exceed $100. You could face misdemeanor charges if you are 21 years or older and grow more than six marijuana plants. Misdemeanor charges could attract a fine that does not exceed $500. You could also face a jail term that does not exceed six months in a county jail.

You could face felony charges if you cultivate more than six plants and you:

  • Have two or more previous convictions under HSC 11358
  • Are you a registered sex offender
  • Have a serious violent felony on your record
  • Violate certain environmental statutes while carrying out your cultivation activities

Felony charges could attract a fine that does not exceed $10,000 and a jail term that does not exceed three years in a county jail.

Additionally, if you complete a drug treatment under PC 1000, you can avoid a conviction. This is commonly referred to as a deferred entry of judgment (DEJ). You could qualify for a DEJ if:

  • You are a non-violent first- or second-time offender
  • You were arrested for cultivation of more marijuana than the legal limit

The defenses you could present to challenge HSC 11358 charges include:

  • You are a victim of illegal search and seizure
  • Marijuana belonged to another person
  • There was no marijuana

Possession Of Marijuana For Sale – HSC 11359

Recreational marijuana became legal on January 1, 2018. Legalized marijuana applies only to possession for personal use. However, possession of marijuana for sale can still lead to criminal penalties. Exceptions are only for the following:

  • The sale of medical marijuana by state law
  • The sale of marijuana to individuals aged 21 years or older by businesses licensed to sell recreational marijuana

If the prosecutor accuses you of possession of marijuana for sale, HSC 11359 requires that he/she prove the following elements:

  • You possessed a controlled substance
  • The substance was marijuana
  • The substance was in a usable amount
  • You were aware of its presence
  • You knew its nature or character as a controlled substance
  • You intended to sell it unlawfully

Courts usually charge possession of marijuana for sale without a license as a misdemeanor. In this case, you could face a fine that does not exceed $500. You could also face a jail term that does not exceed six months in a county jail.

However, under Prop 64, you could face felony charges if the following is true:

  • You possessed weed for sale in connection with or tried to sell to a minor below 18 years
  • You have two or more previous misdemeanor convictions for possession of marijuana for sale
  • You have a previous conviction for one of the serious violent felonies like murder, sex crimes against a minor below 14 years, or a sex offense that requires you to register as a sex offender

In this case, you will face a jail term of 16 months, two years, or three years in a county jail. You do not qualify for drug diversion if you are guilty of possessing marijuana with the intent to sell it. However, you could qualify for misdemeanor probation instead of a jail term. The conditions for probation could include:

  • Community labor or service
  • Periodic progress reports with the court
  • Impromptu searches of your person or property, with or without a warrant
  • Submission to drug testing
  • Participation in group or individual therapy
  • Payment of restitution to the victim

The following are the defenses you could present to fight the HSC 11359 charges:

  • The police subjected you to unlawful search and seizure
  • You were disposing of marijuana
  • You were not selling marijuana but sharing it with friends
  • You were the primary caregiver for a medical marijuana patient
  • Marijuana was for your personal use
  • You were not aware that marijuana was there

Find A Criminal Defense Attorney Near Me

Violation of HSC 11357 can lead to jail time, hefty fines, and enrollment in a drug treatment program, depending on the facts of your case. The applicable penalties will depend on the quantity of marijuana you possess, your age, and where you possess the marijuana. You should contact an attorney immediately after you learn that you are under investigation for possession of marijuana. If you need reliable legal representation, contact the Monterey Criminal Attorney. We will defend your rights and negotiate for the best possible outcome for your case. Contact us at 831-574-1791 to speak to one of our attorneys.