In this post, I am going to explain how the California Health and Safety Code 11358 was updated and changed with the passage of Proposition 64.
This proposition changed California law so that adults who are 21 or older may plant, cultivate, harvest, dry or process up to six (6) living marijuana plants lawfully.
Let’s get started…
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 planted a marijuana plant, and
- You knew it was a marijuana plant.
Cultivation of any amount of marijuana is a misdemeanor under this section. This section criminalizes the cultivation of a marijuana plant, including any part of it.3
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:
A Diabetic criminally accused of possession and cultivation of marijuana at advice of his physician was allowed to raise his status as qualified patient under Compassionate Use Act of 1996 to move for dismissal of indictment; H & S C § 11362.5(d) provided that H & S C § 11357, criminalizing the possession of marijuana, and H & S C § 11358, criminalizing the cultivation of marijuana, did not apply to a patient, or to a patient’s primary caregiver, who possessed or cultivated marijuana for medical purposes.4
If the marijuana that you were cultivating was medical marijuana, recommended by a licensed physician, then it was authorized for your own personal use. IF the marijuana was authorized and you did not intend to sell the legally authorized marijuana that you cultivated, then the cultivation of the medical marijuana is also authorized.5 Under these circumstances, a skillful attorney can argue to the prosecutor that, the fact that the marijuana was authorized means the cultivation of it is not illegal.
“Person with an identification card” means an individual who is a qualified patient who has applied for and received a valid identification card pursuant to this article. Health & Safety Code section 11362.7 (c): If you have a valid medical marijuana card, then you are legally allowed to possess or cultivate medical marijuana.6
Under the law, you do not necessarily have to prove that you are, in fact, Seriously ill, but JUST that a licensed physician has legally authorized you to use Medical Marijuana7
((H & S C § 11358, criminalizing the cultivation of marijuana, did not apply to a patient, or to a patient’s primary caregiver, who possessed or cultivated marijuana for medical purposes. People v. Mower (2002) 28 Cal 4th 457, 122 Cal Rptr 2d 326, 49 P3d 1067, 2002 Cal LEXIS 4520.)) If you are the primary caregiver8 of someone authorized to use medical marijuana, then a skillful attorney, may be able to argue to the prosecutor that your cultivation of the marijuana was also not illegal.9
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.
The act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. Entrapment is an effective legal defense if the commission or encouragement of the criminal act originated with the police or government agents, instead of with the “criminal.”10
A diligent and conscientious defense attorney can show the prosecutor that there is not enough evidence to convict you under Section 11358. This can be done with mitigating evidence or proof that not all elements of the crime were met by showing that the evidence submitted is either insufficient or insubstantial.
The severity of the penalties and sentencing depends on several factors, including your criminal history and the severity of the offense. In most cases cultivating more than 6 plants will be charged as a misdemeanor. For individuals who are under the age of 18 it is an infraction and for individuals between 18-21 that cultivate no more than 6 plants is a misdemeanor.
|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|
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.
- This offense is eligible for an Deferred Entry of Judgment sentence.
- 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.
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.
California “Possession of a Controlled Substance” laws – Health And Safety Code 11350: Every person who possesses any controlled substance, which is a narcotic drug, unless upon the written prescription of a licensed physician, shall be punished by imprisonment.
California “Possession and/or Purchase of a Controlled Substance for Sale” Laws | Health And Safety Code 11351: Every person who possesses for sale or purchases for purposes of sale any controlled substance, which is a narcotic drug, shall be punished by imprisonment.
California” Sale or Transportation of Controlled Substance” Laws | Health & Safety Code 11352: Any person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance, unless upon the written prescription of a physician license in this state, shall be punished by imprisonment.
Health & Safety Code 11359- Possession of Marijuana for Sale: Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment.
Health & Safety Code 11360- Transport, distribute or import Marijuana: Every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment.
California Possession of Methamphetamine Laws | Health And Safety Code 11377: Every person who possesses any controlled substance, which is a narcotic drug, unless upon the prescription of a physician licensed in this state, shall be punished by imprisonment.
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- 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. [↩]
- 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 [↩]
- 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. [↩]
- People v. Mower (2002) 28 Cal 4th 457, 122 Cal Rptr 2d 326, 49 P3d 1067, 2002. [↩]
- Where the evidence showed that defendant, who was charged with cultivating marijuana, had the requisite medical authorization and several back injuries that caused him severe pain, which was impervious to traditional pain medications, and defendant credibly denied cultivating marijuana to sell and his prior efforts at growing marijuana only yielded two to three ounces of marijuana per plant, this history, in light of the difficulty of predicting and calculating the yield of usable marijuana, and the vagaries of back pain, constituted substantial evidence that defendant was cultivating marijuana for personal medical use rather than to sell it. People v. Arbacauskas (2004, Cal App 3d Dist) 123 Cal App 4th 502, 19 Cal Rptr 3d 853, 2004, modified (2004, Cal App 3rd Dist) 2004 Cal App LEXIS 1942, op withdrawn by order of the ct, (2005, Cal) 2005 Cal LEXIS 560. [↩]
- California Health and Safety Code 11362.71 (e) No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article. [↩]
- Conviction for cultivating marijuana was reversed because the jury was erroneously instructed that for a compassionate use defense, defendant had to prove that he was “seriously ill.” The question of whether the medical use of marijuana was appropriate was a determination that was to be made by a physician and that was not to be second-guessed by jurors. People v. Spark (2004, Cal App 5th Dist) 121 Cal App 4th 259, 16 Cal Rptr 3d 840, 2004 Cal App LEXIS 1261 [↩]
- A primary caregiver shall be at least 18 years of age, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Sections 6922, 7002, 7050, or 7120 of the Family Code. Health & Safety Code section 11362.7(e [↩]
- “Primary Caregiver” means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person. Health & Safety Code section 11362.5. [↩]
- Id. [↩]