California “Marijuana Cultivation” Laws

In this post, I am going to explain how California’s laws on illegal marijuana cultivation¹ was updated and changed with the passage of Proposition 64.

This proposition changed California law so that adults who are 21 or older may legally

• plant,
• cultivate,
• harvest,
• dry or process up to six (6) living marijuana plants lawfully.

So When Does Cultivation Become Illegal?

(Watch this video for an in-depth explanation)

Overview Of Health and Safety Code 11358

Under Health & Safety Code Section 11358, it is illegal for anyone who is not lawfully permitted² to use marijuana (medicinal or adult use), to plant, cultivate, harvest³, dry, or process marijuana or any part of it.

What Does A Prosecutor Need To Prove For A Guilty Verdict?

If you are charged with illegally cultivating marijuana, the prosecutor must prove the following to establish that you are guilty under Health & Safety Code 11358:

• You were under the age of 21, or
• You planted more than 6 cannabis plants⁴, and
• You must have known it was a cannabis plant.

How Is Knowledge Proven?

You were aware of the substance’s presence, and that it was marijuana.  The mere fact that you knew that the substance was in your possession, and you knew that it was a controlled substance is enough.

Are There Additional Requirements For Legal Cultivation?

Additionally, unless local law permits to the contrary, cultivators for personal use are required to:

• Grow indoors or on the premises of your private property, in a locked space, and
• Where the plants are not visible from a public place.

What Are The Penalties For Illegal Marijuana Cultivation?

Penalties can be an infraction, misdemeanor, or a felony depending on several factors, including your criminal history and the severity of the offense.

This offense is charged as an infraction if:

• You are under the age of 18, or
• Your 18-21 and you did not plant more than six (6) plants.

As an infraction, your penalty is a fine of $100

In most cases cultivating more than 6 plants will be charged as a misdemeanor.

Can HS 11358 Be Charged As A Felony?

In the following situations a cultivation charge under HS 11358 will become a felony:

• Defendants with serious violent felonies on their record;
• Registered sex offenders;
• Defendants who have two (2) or more prior convictions for cultivating more than six marijuana plants; and
• Defendants who violate certain California environmental laws in their marijuana cultivation activities.

The penalties for a misdemeanor or felony are as follows:

Penalties	Misdemeanor	Felony
Fine	Up top $500	As determined by the court
Probation	Possible summary probation	0-5 years formal probation
Jail Or Prison	Up To 6 months	16 months – 3 years in jail

Are You Eligible For Deferred Sentences?

If you grow for personal use, you may be eligible for a diversion sentence under Penal Code 1000, if there is no evidence of intent to sell.

The benefit of a deferred entry of judgment is you can delay your case while attending drug treatment and if you complete the program your case is dismissed pre-plea.

Can You Get Prop 36?

This offense is not eligible under Proposition 36.

Under proposition 36 when a defendant is convicted of a “nonviolent drug possession offense,” the court must suspend the imposition of the sentence, grant probation, and require the defendant to participate in and complete a court-approved drug treatment program as a condition of probation.

Can Older Convictions for HS 11358 Be Updated According To Prop 64?

Yes, prop 64 allows individuals sentenced under stricter guidelines to apply for re-sentencing in their cases.

The law intends for the court to re-sentence individuals unless they pose a threat to the safety of the public.

Are There Legal Defenses To Charges Of Illegal Marijuana Cultivation?

There are several defenses that your attorney can assert on your behalf to fight a charge of marijuana cultivation.

Here are the most common ones:

Unlawful Search And Seizure

If the cultivated marijuana is not in plain view and police officers don’t have a warrant they are not permitted to search the premises.

Any seizures resulting from an illegal search will be excluded from evidence in a corresponding criminal case.

You Did Not Know That The Plant Was Marijuana

You are required to have knowledge of the nature or character of the plant as marijuana.

Therefore, knowledge is a critical part of this charge.

You Have A License To Cultivate Marijuana

The State of California legalized cannabis for personal use in 2016.

If you have applied for a permit or license to cultivate marijuana and have been granted this ability by the Bureau of Cannabis Control (BCC), you have a defense if you were growing cannabis within the parameters of your permit/license.

It would be a complete defense to the crime of cultivation if you were a licensed and properly operational cannabis cultivator.

1. California Health And Safety Code 11358 HS [↩]
2. Health & Safety Code 11362.5. (a) This section shall be known and may be cited as the Compassionate Use Act of 1996. (b) (1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: (A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. (B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. (C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. (2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes. (c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.  (d) Section 11357 relating to the possession of marijuana, and Section 11358 relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. [↩]
3.  Every person who plants, cultivates, harvests, dries, or processes any marijuana, or any part thereof, with knowledge that it is marijuana, or a part thereof, is guilty of the crime of violation of Section 11358 of the Health and Safety Code. In order to prove the commission of such crime, each of the following elements must be proved: 1. That a person planted, cultivated, harvested, dried, or processed a marijuana plant, and 2. That such person knew it was a marijuana plant or some part thereof.” (CALJIC No. 12.24.)  Webster’s Third New International Dictionary (1981) page 1036, defines harvest and harvesting as follows: “Harvesting (n) ‘an act or instance of gathering in a crop or store ….’ “Harvest (vt) ‘1a: to gather in (a crop): REAP … b: to gather (a natural product) as if by harvesting ….'” The instructions refused were: “(1) Harvest–n. [… to cut, whence Shear, Short: basis sense ‘time of cutting’] 1. the time of the year when matured grain, fruit, vegetables, etc. are reaped and gathered in 2. a season’s yield of grain, fruit, etc. when gathered in or ready to be gathered in; crop 3. the gathering in of a crop 4. the outcome or consequence of any effort or series of events [the tyrant’s harvest of hate]–vt., vi. 1. gather in (a crop, etc.) 2. to gather the crop from (a field) 3. to get (something) as the result of an action or effort ….'”(2) Harvest–to gather in a season’s yield of grain, fruit, etc. (Webster’s New World Dictionary) “verb: to gather in a crop”crop is defined as the yield of any product in one season or place.” http://law.justia.com/cases/california/court-of-appeal/3d/144/386.html [↩]
4. Under Prop. 215, patients are entitled to whatever amount of marijuana is necessary for their personal medical use. However, patients can be arrested if they exceed the SB 420 guidelines. SB420 sets a baseline statewide guideline of 6 mature or 12 immature plants, and 1/2 pound (8 oz.) processed cannabis per patient. Individual cities and counties are allowed to enact higher (but not lower) limits than the overall California statewide standard.  In a state Supreme Court ruling, People v. Kelly (2010), the court held that patients can not be prosecuted simply for exceeding the SB 420 limits; however, they can be arrested and forced to defend themselves as having had an amount consistent with their personal medical needs. [↩]