Marijuana Laws: Cultivation of Marijuana – Health and Safety Code 11358 HS
Marijuana is being decriminalized in many states around the country including California, but not in all forms and uses. Although it is legal to grow and possess marijuana for medicinal uses in this state, it is still illegal to grow or possess marijuana for recreational purposes.
California Health and Safety Code 11358 HS states that, other than when accepted by law, it is illegal to:
- Dry; or
- Process any marijuana or part of a marijuana plant.
The exception to the law is for those who have been prescribed marijuana for medical use. Medicinal marijuana can legally be cultivated in California by the person to whom it was prescribed or by that person’s primary caregiver.
Example of Illegal Cultivation
Don planted and harvested 25 marijuana plants from a plot on John’s land. Tina helped Don dry and trim the plants to prepare them for the three to use recreationally. Even though, none of the three parties intend to sell the marijuana, they have all violated California Health and Safety Code 11358 HS. It is illegal for Don to plant, cultivate and harvest the marijuana, for John to allow his land to be used for marijuana cultivation, and for Tina and Don to dry and process the marijuana for recreational use.
Possession of Marijuana – California Health and Safety Code 11357 HS
In California, it is illegal to possess any amount of marijuana unless it’s medically necessary. Possessing up to 28.5 grams is an infraction punishable by a fine of up to $100. Possessing more than 28.5 grams is punishable by up to six months in county jail and a fine of up to $500.
Possession with Intent to Sell – California Health and Safety Code 11359 HS
If you are in possession of marijuana and it can be proven that you intended to sell it, you may be charged with possession with intent to sell, which carries a possible sentence of 16, 24, or 36 months in county jail.
Sale or distribution of Marijuana – California Health and Safety Code 11360 HS
Anyone who transports, imports, sells, furnishes, or administers marijuana, or attempts to do so, may be convicted of selling marijuana which carries a penalty of up to four years in county jail.
Prosecution For Cultivating Marijuana
In order for you to be convicted of illegal marijuana cultivation, the prosecution must prove all of the following elements beyond a reasonable doubt:
- You illegally planted, cultivated, harvested, dried, or processed one or more marijuana plants; AND
- You knew the substance you planted, cultivated, harvested, dried, or processed was marijuana.
Per California law, the term marijuana includes the plant, seeds, resin and any compound, manufacture, salt, derivative, mixture, or preparation of the plant, seeds, or resin.
Sentencing and Punishment for Cultivating Marijuana
If you are convicted of illegal cultivation of marijuana, you face a sentence of 16 months, two or three years in county jail.
Possible Defenses to Charges of Illegal Marijuana Cultivation
If you have been charged with illegal marijuana cultivation, a skilled criminal defense attorney can raise several defenses on your behalf. These defenses may include:
- Lack of knowledge. If you did not know that there was marijuana growing on your property, then you should not be convicted of illegal marijuana cultivation. An example would be if someone else was growing marijuana on your vacation property and you were unaware that this was occurring.
- Legal exemption. Under the California Compassionate Use Act, you can legally grow a limited amount of marijuana with a physician’s prescription or recommendation if you have a serious medical condition.
- Mistaken identity. If you were not the person who illegally planted, cultivated, harvested, dried, or processed one or more marijuana plants, you should not be convicted of this crime. For example, if your roommate had been growing marijuana plants within your home, you should not be held criminally liable if you did not take part, give consent, or have any knowledge of these activities.
Frequently Asked Questions about Marijuana Cultivation
At Wallin & Klarich, we frequently receive questions from those facing marijuana cultivation charges. These include:
My brother does not have a Medical Marijuana ID card but needs marijuana for his cancer. I am my brother’s primary caregiver. Can I be arrested for growing the marijuana he uses for his treatment?
If your brother has a medical necessity for treatment with marijuana and you are his primary caregiver, the law says you can grow up to 6 mature plants, 12 immature plants, or more with a physician’s recommendation. Be aware, that without a medical marijuana ID card you will have to prove to the court your brother’s medical need as well as your role as his primary caregiver.
I have a MMID card and can grow six mature plants, but I have to plant at least 18 plants to be able to harvest from 6 because of my growing space. Can I be arrested for cultivating more than is medically necessary?
You should speak with an attorney as soon as possible because your attorney may be able to help you prove to the court that you have to plant more than the legal amount to be able to harvest the legal amount because of poor growing conditions. In this case, you should not be convicted of illegal cultivation of marijuana.
My community shares garden and recreation land. Someone planted marijuana on the ground that we collectively own, but we didn’t know and it isn’t ours. Can we be charged with cultivation of marijuana?
Under California Health and Safety Code Section 11358 HS, you must know about the marijuana on your land before you can be convicted of illegal cultivation. We advise that you speak to your attorney right away so they can begin building your defense.
Contact Wallin & Klarich if You Have Been Charged with Cultivation of Marijuana
If you or a loved one has been charged with illegal marijuana cultivation it is crucial that you contact a Wallin & Klarich criminal defense attorney immediately. Wallin & Klarich has been successfully defending those facing drug charges for over 30 years. We can help you, too. We will analyze the facts of your case and plan a defense strategy that will help you get the very best outcome possible in your case.
With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a skilled Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.