Health and Safety Code Section 11358
Marijuana Cultivation laws in California
Cultivation of marijuana that exceeds more than the permitted amount for recreational or medical use, without a proper license, is a crime in California. Health and Safety Code section 1358 is the statute that regulates marijuana cultivation. The term “cultivate” in the legal context is more encompassing than you might usually expect. For the purposes of this section, it means to plant, cultivate, harvest, dry, or process any marijuana or any part thereof.
A closer look at
California’s Health and Safety Code 11358
Who can legally grow marijuana in California?
Adults over the age of 21 can legally grow marijuana for personal or medical use.
How much Marijuana can be grown for Personal Use in California?
- A maximum of six (6) plants per residency, not person
Note: State and local agencies have different laws regarding marijuana cultivation. You must abide to all additional local laws and ordinances that further regulate marijuana cultivation.
The cannabis plants must be grown as follows:
- Indoors or on the premises of the grower’s private property.
- In a locked space, or
- Grown where the plants are not visible from a public place as it can increase the risk of trespassing and burglary or become an “attractive nuisance”.
Violating California’s Marijuana Cultivation Laws
Due to the legalization or marijuana, most violating of Health and Safety Code 11358 are considered misdemeanor offenses. The penalties of a MISDEMEANOR are:
- A maximum of six (6) months of incarceration, and/or
- A fine of up to five hundred (500) dollars
When is violating HS 11358 a FELONY?
You cultivated more than six (6) plants AND at least one of the following:
- You have two or more prior misdemeanor convictions for marijuana possession for sale,
- You are a registered sex offender,
- You have been convicted of a violent felony or crime in the past, or
- You violated other California environmental laws or ordinances while cultivating marijuana.
The penalties of a FELONY are:
A maximum of three (3) years of incarceration, and/or
A maximum fine of $10,000
Penalties for minors who violate HS 11358:
The punishment for individuals under the age of 18 who plants, cultivates, harvests, dries, or processes any cannabis plants shall be punished with an infraction and must complete four hours of drug education or counseling and up to 10 hours of community service over a period not to exceed 60 days. Persons at least 18 years of age but less than 21 years of age are guilty of an infraction and punishable by a fine of not more than $100 dollars.
Drug Treatment (Diversion Pursuant to Penal Code 1000):
Per California, Penal Code 1000—Pretrial Diversion [web link], if your arrest was solely for cultivating excessive amounts of marijuana for personal use, you may be eligible to postpone any sentence imposed in order to attend and complete drug treatment.
If you are non-violent first or second time offender, and/or you are a minor, you can qualify for deferred entry of judgment or a pretrial diversion. If you meet the eligibility requirements, your sentencing will be put on hold while you participate and complete a state-approved drug counseling or treatment course. Upon its successful completion, the charges will be dismissed.
Resentencing under Proposition 64:
Prior to proposition 64, cultivation laws were harsher. Prop 64 has changed the way that California handles marijuana cases. Fortunately, if you were convicted under prior cultivation laws the initiative allows for resentencing under prop 64 or the dismissal of any charges.
Defenses to a
Marijuana Cultivation Case
The marijuana was not yours
You can only be found guilty under this statute if you personally cultivated the marijuana and you have an excessive amount of weed. However, if it cannot be proven, beyond a reasonable doubt, that the marijuana belonged to you, then you cannot be found guilty.
You were not aware there was marijuana
If the prosecutor cannot demonstrate that you know what marijuana plant looks like, then you cannot be found guilty of violating HS 11358.
Consider the following example:
Josh lives in a big house with 8 other people. Aside from his room, everything else, such as the kitchen, living room, and backyard is communal. In a hidden section of the backyard, nine (9) marijuana plants were found.
Josh, who mostly keeps to himself, had no idea that there was marijuana growing in the backyard. Since there is reasonable doubt as to whether or not he helped cultivate the marijuana in question, he would probably be found “not guilty”.
Unlawful search and seizure
Authorities cannot conduct a search or take property without a valid search warrant. Your Fourth Amendment Right protects you from unreasonable searches and seizures of your private property. If a law enforcement official did not have a valid warrant to search through your property, then they must have a legal excuse for not having one. Consent can ovate the necessity for a search warrant. So be careful.
If the police gather evidence from an unlawful search and seizure, then the evidence obtained cannot be used. Sometimes, a defense is not about the crime, but uncovering faulty law enforcement procedures. A procedural defense can include lack of probable cause, search and seizure issues, or insufficient evidence
You are a medical marijuana patient
Under the Compassionate Use Act, Health and Safety Code 11362.5, medical usage is a legal defense, but you must prove that:
- You have doctor approval to use marijuana to treat a serious medical condition.
- You are a primary care giver to such patients, and
- You are a member of a medical marijuana dispensary.
Medical marijuana patients may cultivate up to six (6) mature plants, twelve (12) immature plants, or with a doctor’s recommendation, a greater amount consistent with the patient’s reasonable need.
If a person is charged under HS 11358, but they are exempt from the law under the Compassionate Use Act, then the person has the burden to prove this exemption.