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California Health and Safety Code Section 11358 HSC: Cultivating Marijuana

New laws are governing the cultivation, use, and sale of marijuana in California. Proposition 64/Adult Use of Marijuana Act was approved by voters on November 8, 2016. The act legalized the possession and use of small amounts of marijuana for adults who are 21 years or older as of January 1, 2018. The act also allows licensed businesses to sell marijuana. Proposition 64 has opened a new chapter of marijuana laws in California. Defendants who were sentenced under the previous regulations for marijuana-related offenses can now seek re-sentencing under the new law. Proposition 64 lightens the penalties for marijuana-related crimes.

What is in the new law?

Under the new California recreational marijuana law, people aged 21 and above are permitted to cultivate up to six plants of marijuana. The marijuana must be for personal use. The plants should be grown in secured areas indoors. They can also be grown in secured areas outdoors where it is legally permissible. Cultivating more than six plants of marijuana is a crime under Health and Safety Code 11357.

Penalties for unlawful cultivation of marijuana under Health and Safety Code 11357

Unlawful cultivation of marijuana is treated as a misdemeanor that carries a penalty of up to 6 months in a county jail, a fine of up to $500, or both. However, it will be treated as a felony for the following groups.

  • Registered sex offenders
  • People who have committed severe violent felonies in the past
  • People who have twice or more been convicted of growing more than six marijuana plants
  • People who violate specific California environmental laws due to marijuana cultivation

On top of that, it is an infraction for people below the age of 21 to grow marijuana plants.

A drug rehabilitation program may be prescribed in lieu of a jail term if:

  • The defendant is a non-violent first-time or second-time offender
  • If the charges brought against the defendant are limited to cultivation of marijuana for personal use

Cultivation of medical marijuana in California

California medical marijuana laws have different regulations for people growing marijuana for medicinal purposes. The Compassionate Use Act of 1996 exempts certain groups of people from the laws governing the possession and use of marijuana in California. These groups of people include

  • People who use marijuana with a doctor‘s approval to treat serious conditions
  • Members of marijuana dispensaries
  • People who are the primary caregivers of patients with a doctor’s approval to use marijuana to treat serious conditions.

Persons growing marijuana for medical purposes in California are allowed to:

  • Cultivate up to 6 mature marijuana plants
  • Cultivate up to 12 immature marijuana plants
  • Cultivate a greater amount with a doctor’s recommendation. The unmount recommended should be consistent with the patient’s reasonable needs

Elements of the crime of illegal cultivation of marijuana in California

Cultivating marijuana includes

  • Possession of marijuana seeds
  • Planting and tending to marijuana in soil
  • Drying and processing of harvested marijuana

The defendant will be found guilty of illegal cultivation of marijuana if the prosecutor proves that:

  • He/she unlawfully planted, processed, dried, or processed more than six marijuana plants
  • He/she knew that the substance they cultivated was marijuana.

A person can be convicted of abetting unlawful cultivation of marijuana if they were aware of it and failed to prevent it. For example, if a landowner is aware that one of his tenants is unlawfully cultivating marijuana, and he/she does not stop them, he/she may be guilty of aiding illegal cultivation of marijuana.

Possible defenses to unlawful cultivation of Marijuana


The defendant did not know it is marijuana

It is possible to have marijuana in your garden yet you are not aware of its existence. You might also have been aware of the presence of the plant, but you don’t know how marijuana looks like. With that said, for you to be found guilty of unlawful cultivation of marijuana, the prosecutor must prove that you knew the plant in your garden was marijuana.

The marijuana didn’t belong to the defendant.

For example, if the marijuana was discovered in a communal garden in the apartment you reside, you can argue that the you did not cultivate the marijuana.

The marijuana was discovered during an illegal search

The US constitution shields citizens from needless searches. If you prove that the police discovered the marijuana during an illegal search, the case can be dropped.

The defendant is a medical marijuana user under the  Compassionate Use Act

The  Compassionate Use Act allows the cultivation of more than six marijuana plants for medical purposes. However, to use this act as a defense, you should prove that:

  • You have a serious medical condition
  • A doctor approved the use of marijuana for your treatment
  • The recommending doctor confirmed you need more marijuana than allowed under Proposition 64

Resentencing under Proposition 64

Proposition 64 allows people convicted under the defunct Health and Safety Code 11358 HS to apply for resentencing. Considering that Proposition 64 is more lenient on marijuana-related offenses than the previous laws, the sentence might reduce considerably. For example, what was a felony in the previous code can be a misdemeanor under Proposition 64.

Criminal defense attorneys for marijuana-related offenses

If you are charged with marijuana-related offenses such as possession or cultivation of marijuana in California, the best thing to do is consult an accomplished California criminal defense attorney. There are multiple ways to approach a marijuana cultivation case. A seasoned California criminal defense attorney will know the best option to exploit depending on the unique circumstance of your case.

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