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Cultivation of Marijuana – Health and Safety Code 11358 HS

The Crime of Marijuana Cultivation in California - HS 11358

California Health & Safety Code 11358 HS - Cultivating Marijuana
Health and Safety Code 11358 HS describes the crime of illegal cultivation of marijuana.

Marijuana cultivation is covered under California's Health and Safety Code 11358.

Due to recent changes in the law resulting from the passage of Proposition 64 by California voters, growing marijuana plants in the state may now be legal under certain circumstances.

However, cultivation which exceeds the narrowly drawn guidelines contained in Prop 64 can still expose residents to misdemeanor, or even felony drug crime charges.

See our blog: California Marijuana Law Update 2017.

If you or a family member has been charged with illegal cultivation of marijuana, you should call a Los Angeles criminal defense attorney at Eisner Gorin LLP for a free consultation. 

Our experienced lawyers can inform you of your legal rights and provide you with the aggressive defense you need against your charges.

A conviction for marijuana cultivation can result in a substantial prison sentence and large fines.

In addition, having a criminal conviction of any kind on your record can have a huge impact on your future opportunities as well highly damaging your personal and professional reputation.

To increase your chances of the best possible outcome and avoiding a conviction, it's best to contact a drug crime defense lawyer at our office as soon as possible.

CA Proposition 64 – Legal Marijuana Cultivation

Under Prop 64, also known as the Adult Use of Marijuana Act, adults over the age of 21 may now legally home grow between 1 and 6 marijuana plants.

They may also legally process and keep the entire harvest from said plants. However, cultivating more than six marijuana plants will remain as a drug crime under California marijuana laws.

As described below, while Prop 64 significantly reduced the criminal penalties for marijuana cultivation which does not comply with these requirements, such activity is still subject to criminal sanctions including incarceration.

See our blog: California Proposition 64. California Health and Safety Code 11360 defines the crime of unlawful marijuana sales or transportation.

Restrictions for Legal Marijuana Cultivation

Even if Prop 64 legally entitles you to grow marijuana plants based on your age and the amount of plants, certain procedures must still be followed to avoid criminal penalties.

Most of these are fairly straightforward. For instance, the plants must be grown on your own private property and in an area not visible to the public.

The limit of 6 plants applies to each residence rather than each individual, meaning that you and your roommate may not each have 6 plants if you live under the same roof. Finally, you must abide by all applicable local ordinances related to the cultivation of marijuana.

It is likely that these ordinances will differ from city to city and county to county, especially as private cultivation becomes more prevalent with the passage of Prop 64.

You don't have to be physically present to cultivate marijuana. Under Health and Safety Code 11358, you are legally considered cultivating if you are any way involved with the growth, harvesting or processing of marijuana. Vehicle Code 23222(b) VC makes it a an offense for a driver to operate a motor vehicle while in possession of an open container of marijuana. 

Call a Los Angeles criminal defense lawyer at our law firm for more information.

Apply for Resentencing of Prior Conviction 

Individuals who may have been previously convicted and sentenced prior to the passage of Prop 64 can apply for resentencing or even complete reversal of their convictions if their conduct would have been legal under the more lenient standards of California Proposition 64.

Consult with a Los Angeles drug crime lawyer at our office for information on the process.

Medical Marijuana – Legal Cultivation

The Compassionate Use Act of 1996, created Health and Safety Code 11362.5 and subsequent sections. Together, these provisions govern the permissible cultivation of marijuana by medical marijuana patients.

Provided they have the proper doctor's recommendations and/or state licenses, medical marijuana patients and their primary caregivers may cultivate up to six mature plants, or 12 immature plants.

However, with a doctor's recommendation, patients and their caregivers may cultivate a greater amount of plants if that amount is consistent with the patient's reasonable needs. 

We also help clients charged with violating Los Angeles Municipal Code 104.15, which is the criminal enforcement against landlords whose tenants operate illegal marijuana businesses.

Legal Penalties

Since the legalization of recreational marijuana by Prop 64, a violation of California Health and Safety Code 11358, meaning growing more than six marijuana plants for personal recreational use, is a misdemeanor offense for most individuals. The legal penalties include:

  • For adults between the ages of 18 and 20, cultivation of between 1 and 6 marijuana plants is an infraction punishable by a $100 ticket.
  • For adults over the age of 18, cultivation of more than 6 plants is a misdemeanor punishable by 6 months in the county jail, a $500 fine, or both.
  • A third, or aggravated, conviction for cultivation of more than 6 plants is a “wobbler,” meaning it can be charged as either a misdemeanor or as a felony, potentially resulting in incarceration in state prison. Factors which may qualify cultivation as “aggravated” include conduct involving minors, gross negligence, toxic or hazardous substances, watershed or environmental harm, prior “super strikes,” or being a registered sex offender.

If you are facing cultivation of marijuana charges, contact a Los Angeles drug crime lawyer at our office to review the details of your case. 

Legal Defenses

To prove their case against you for an alleged violation of Health and Safety Code 11358, the illegal cultivation of marijuana, the Los Angeles County prosecution must prove each element of the crime beyond a reasonable doubt.

Accordingly, there are several legal and factual defenses which your attorney may present in your defense:

  • The marijuana plants in question do not belong to you.
  • You did not know the plants in question were marijuana.
  • You had a right, either under Prop 64 or the CUA, to cultivate the amount of marijuana plants in question.
  • The plants in question were seized as a result of an illegal search and seizure by law enforcement.

Every drug crime case has its own set of unique circumstances. If you have been arrested for illegally cultivating marijuana, you need to immediately consult with a Los Angeles drug crime attorney at our office. Our defense lawyers need to thoroughly review all the details in order to develop an effective strategy.

Marijuana Cultivation Case Examples

The following examples illustrate how the provisions of Health and Safety Code 11358 interact with possible defenses, Prop 64, and the medical marijuana laws.

(1) In 2010, Joey was a 19 year-old college student living in Los Angeles. In his dorm room, Joey cultivated 10 marijuana plants for personal use. One day, campus police confronted Joey about the strong odor of marijuana emanating from his door. Joey admitted to growing marijuana and showed the plants to the officers.

Joey was charged with felony cultivation punishable by up to 3 years in state prison. After the passage of Prop 64, however, Joey became eligible for resentencing. Because of the amount of plants (over 6), Joey's conduct is still illegal. But resentencing provides a great benefit to Joey, as he can now have his felony conviction retroactively reduced a misdemeanor.

(2) Elaine is a 45 year-old homemaker. As a hobby, she cultivates large amounts of marijuana plants, the leaves of which she uses for arts and crafts projects. A police officer is on patrol in Elaine's neighborhood when he overhears some children joking about Elaine's strange habits.

He decides to take action and enters in to Elaine's house, catching her in the act. Elaine is arrested and her plants are seized. Even though she is over 21, the large amount of cultivated plants exposes her to misdemeanor charges. Luckily for Elaine, her defense attorney successfully argues that the search of her home and seizure of her plants was illegal, as the police officer had no justification for entering without a valid search warrant. All charges are dropped.

(3) David lives in a rural area of Los Angeles County near the National Forest. He sets up a grow operation with 7 plants for personal use. To help his plants grow more quickly, and to prevent damage from pests, David uses highly toxic chemical pesticides and fertilizers in large amounts.

David has no prior experience using such chemicals, but figures he can learn as he goes along. Unfortunately, significant amounts of pesticide leech into a nearby stream, poisoning the water. While David is over 21, and has no prior convictions of any kind, he will nevertheless be charged with a felony because the environmental harm caused by his cultivation makes his conduct “aggravated” under Prop 64.  David faces up to 3 years in state prison if convicted.

Contact a Los Angeles Drug Crime Attorney

If you're facing criminal charges of unlawful cultivation of marijuana, don't make any statements to law enforcement. Talk to an experienced Los Angeles drug crime lawyer at Eisner Gorin LLP.

You have the legal right not to talk to the police. If you believe your a suspect or you have already been charged with a serious drug crime in state or federal courts, let us do the talking for you. Anything statements you make will likely get you deeper into trouble. 

A Los Angeles drug charge defense attorney from our law firm has the necessary courtroom experience and credentials to provide a solid defense on your behalf.

Immediate intervention by our law firm can show the prosecution that their case is weak, getting felony charges reduced to misdemeanor charge, or even getting the entire case dismissed. Call our law firm at 877-781-1570 for a free immediate response.

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