Health & Safety Code Section 11358
Cultivation of Marijuana Laws in California

With medical marijuana so readily available in California, you might think cultivation of marijuana is a minor offense.

But unless you are legally entitled to use medical marijuana -- or you are the primary caregiver to someone who is -- doing any of the following could land you in jail:

  • planting,
  • cultivation,
  • harvesting,
  • drying, or
  • processing…

any amount of marijuana or any part of the marijuana plant.

You do not even need to be there with the marijuana to be guilty of unlawfully cultivating marijuana. It is enough that:

  • You participated in some way in the pot's cultivation or processing1, or
  • You had dominion or control over the property on which pot is growing or processed, and you knew that it was there.2
The penalty for unlawful cultivation of marijuana in California

California marijuana laws make cultivation a felony offense.  The penalty for a first offense is:

  • 16 months, or two or three years in county jail.3

However, you may be eligible for drug treatment instead of jail time if:

  • you are a non-violent first- or second- time offender, and
  • the charges against you are limited to possession and/or cultivation for personal use.4

To learn more about drug treatment in lieu of jail time, please read our article California's Deferred Entry of Judgment (DEJ) Drug Diversion - Penal Code 1000 PC.

Negotiating a lesser charge

Depending on the circumstances, an experienced California criminal defense attorney may be able to get the cultivation charges dismissed.

At the very least, he/she may be able to get them reduced to simple possession of marijuana under California Health and Safety Code 11357... which is punishable by a $100 fine.

Who may legally grow marijuana in California?

Pot may be grown legally in California by:

  • medical marijuana users, and
  • their primary caregivers.

You are legally entitled to use medical marijuana in California if:

  1. a doctor has recommended or approved it (either verbally or in writing),
  2. for the treatment of a serious medical condition, such as:
    • AIDS,
    • Anorexia,
    • Arthritis,
    • Cancer,
    • Migraines,
    • Multiple sclerosis,
    • Seizures, or
    • Any other debilitating condition, including chronic pain or serious nausea.5
A medical marijuana ID card is not required

Patients and primary caregivers do NOT need a medical marijuana ID card (“MMID”) in order to cultivate marijuana for the patient's personal use.6

However, having a valid MMID offers extra protection against being arrested.7

For information on getting an MMID:

How much marijuana can I legally cultivate?

Medical marijuana patients and their primary caregivers may cultivate up to:

  • six mature marijuana plants,
  • 12 immature marijuana plants, or
  • with a doctor's recommendation, a greater amount consistent with the patient's reasonable needs.8
Medical marijuana dispensaries

Members of non-profit marijuana collectives or cooperatives (dispensaries) may also cultivate marijuana to give (or sell “at cost”) to their members.9

To learn more about medical marijuana dispensaries, see How to Open a Medical Marijuana Dispensary: the Laws in California.

Defenses to charges of unlawfully cultivating marijuana

Legal defenses to charges under California Health and Safety Code 11358 HS include:

  • the marijuana belonged to someone else;
  • you didn't know the pot was there;
  • you didn't know that it was marijuana;
  • you are legally entitled to use medical marijuana;
  • you are the primary caregiver for a medical marijuana patient; or
  • the pot was found during an illegal search.
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Our attorneys include former cops and prosecutors who have helped thousands of people successfully defend against marijuana-related charges.

To help you better understand the nuances of California's laws on marijuana cultivation, our California criminal defense attorneys discuss the following, below:

  1. What does California Health and Safety Code 11358 prohibit?
    1. The legal definition of “marijuana”
    2. The legal definition of “cultivation”
  2. Who may legally cultivate marijuana in California?
    1. Medical marijuana and the Compassionate Use Act (Prop. 215)
    2. The legal definition of “serious medical condition”
    3. The legal definition of “primary caregiver”
    4. How much marijuana can be cultivated under the CUA?
    5. Medical marijuana cards
    6. Medical marijuana dispensaries
  3. Unlawful cultivation of marijuana - California Health and Safety Code 11358
    1. Acts prohibited by Health and Safety Code 11358 HS
    2. Knowledge that the substance was marijuana
  4. Penalties for the unlawful cultivation of marijuana
    1. County jail sentence
    2. Drug diversion under California Penal Code 1000 PC
  5. Defenses to charges under Health and Safety Code 11358
  6. Related California offenses
    1. Simple possession of marijuana – Health and Safety Code 11357
    2. Possession of marijuana with intent to sell – Health and Safety  Code 11359
    3. Selling marijuana - Health and Safety Code 11360
  7. Marijuana Cultivation & Federal law
    1. The Federal Controlled Substances Act
    2. Marijuana cultivation and immigration
    3. Marijuana cultivation on federal property or in HUD housing

You may also find helpful information in our articles on: California Marijuana Laws Explained by Lawyers; Marijuana Possession for Personal Use; Possession of Marijuana for Sale; Sale or Transportation of Marijuana; Concentrated Cannabis; DUI of Marijuana; Driving in Possession of Marijuana; How to Get a Medical Marijuana ID Card in California; How to Open a Medical Marijuana Dispensary; Primary Caregivers and Medical Marijuana; Possession of Drug Paraphernalia; and, California Drug Diversion.

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1.  What does California Health and Safety Code 11358 prohibit?
1.1  The legal definition of “marijuana”

California Health and Safety Code 11018 defines “marijuana” as all parts of the plant Cannabis sativa L., whether growing or not.  It includes:

  • the seeds,
  • the resin extracted from any part of the plant, and
  • every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.10
1.2  The legal definition of “cultivation”

California Health & Safety Code 11358 makes it unlawful to:

  • plant,
  • cultivate,
  • harvest,
  • dry, or
  • process…

any marijuana or any part thereof, unless otherwise permitted by law (i.e., you are entitled to possess medical marijuana under California's Compassionate Use Act).11

You do not need to be present to be guilty of cultivating marijuana.12 If you are involved in any way the marijuana's growth, harvesting or processing, you may be found guilty of cultivation.  Simply helping someone remove leaves so that he can smoke them is enough.13

2.  Who may legally cultivate marijuana in California?
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2.1  Medical marijuana and the Compassionate Use Act (Prop. 215)14

California's “Compassionate Use Act of 1996” (the “CUA”) became law by voter passage of Proposition 215.  Its provisions are set forth in California Health and Safety code 11362.5 and subsequent sections.

The CUA exempts the following people from California laws prohibiting possession and cultivation of marijuana:

  • People who use marijuana with doctor approval to treat a serious condition,
  • Primary caregivers to such patients, and
  • Members of medical marijuana collectives (also known as “dispensaries”).15

For the exemption to apply, the marijuana must be solely for:

  • the patient's personal use, or
  • in the case of a dispensary, the personal use of its members.16
2.2  The legal definition of “serious medical condition”

California Health and Safety Code 11362.7 defines a “serious medical condition" as:

  1. Acquired immune deficiency syndrome (AIDS).
  2. Anorexia.
  3. Arthritis.
  4. Cachexia [wasting syndrome].
  5. Cancer.
  6. Chronic pain.
  7. Glaucoma.
  8. Migraine.
  9. Persistent muscle spasms, including, but not limited to,spasms associated with multiple sclerosis.
  10. Seizures, including, but not limited to, seizures associated with epilepsy.
  11. Severe nausea, and
  12. Any other chronic or persistent medical symptom that either:
    1. Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans withDisabilities Act of 1990 (Public Law 101-336), or
    2. If not alleviated, may cause serious harm to the patient's safety or physical or mental health.17
2.3  The legal definition of “primary caregiver”

Under the CUA, a “primary caregiver” is defined as:

  • an individual designated by the patient,
  • who consistently assumes responsibility for the patient's housing, health, or safety.18

In order to meet this definition, a person must:

  1. consistently provide care to the patient,
  2. independently of assistance given to the person in taking medical marijuana, and
  3. must have commenced taking care of the patient at or before the time he/she assumed responsibility for assisting with medical marijuana.19
2.4  How much marijuana can be cultivated under the CUA?

Medical marijuana patients and their primary caregivers may cultivate up to:

  • six mature marijuana plants,
  • 12 immature marijuana plants, or
  • with a doctor's recommendation, a greater amount consistent with the patient's reasonable needs.20
2.5  Medical marijuana cards
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You do not need a medical marijuana card in order to enjoy exemption under the CUA.21 Medical necessity… even in the absence of an MMID… is a defense to charges of marijuana cultivation for personal use.

But there is one significant advantage of having a medical marijuana ID card.  You cannot be arrested for cultivating marijuana unless a law enforcement officer has reason to believe that:

  • the information on your card is false,
  • the card was fraudulently obtained, or
  • you are otherwise violating the law (for instance, by cultivating more marijuana than is consistent with reasonable medical use, or possessing it with the intent to sell it).22
2.6  Medical marijuana dispensaries

California law allows cultivation of medical marijuana by certain non-profit marijuana collectives or cooperatives (dispensaries) legally operating and give it to patients and their primary caregivers, or sell it “at cost.”23

California law regarding medical marijuana dispensaries is strict. In addition, California counties and the federal government have their own rules that can make opening a medical marijuana dispensary tricky.

We strongly advise that before opening a dispensary, you consult with an attorney experienced in this area.

3.  Unlawful cultivation of marijuana - California Health and Safety Code 11358

In order for you to be convicted under Health and Safety Code 11358 HS, the prosecutor must prove that:

  1. You unlawfully
    • planted,
    • cultivated,
    • harvested,
    • dried,
    • or processed…

      one or more marijuana plants, AND
  2. You knew that the substance was marijuana.24

Let's take a closer look at each of these elements.

3.1  Acts prohibited by Health and Safety Code 11358 HS
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The words in Code Section 11358 HS have their ordinary dictionary meaning.25

In addition, you do not need to be involved in every step of the marijuana production from planting to harvesting to be guilty of “cultivating” marijuana.  Being involved in any step… to any degree… is enough.

Even if all you do is remove a few leaves from a marijuana plant, you can be found guilty of violating Health and Safety Code 11358.26

3.2.  Knowledge that the substance was marijuana

Proof that you knew that the substance was marijuana can be proved from:

  • Your statements,27
  • Evidence of prior crimes,28 and
  • Circumstantial evidence (such as fertilizer and books on growing marijuana).29
4.  Penalties for the unlawful cultivation of marijuana
4.1  County jail sentence

Violation of California Health and Safety Code 11358 HS is a felony.30 If you have no prior drug convictions, it is punishable by:

  • 16 months, or 2 or 3 years in county jail.31

You may, however, be eligible for drug treatment instead of jail if:

  1. you are a non-violent first-  or second-time offender, and
  2. you are arrested for possession and/or cultivation of marijuana for personal use only.
4.2  Drug diversion under California Penal Code 1000 PC

As long as your arrest was for possession and/or cultivation of marijuana solely for personal use, you may be eligible to have sentencing held off while you complete drug treatment.  This is known as “deferred entry of judgment (DEJ).” It is authorized by California Penal Code 1000 PC.

To receive DEJ, you must meet certain eligibility requirements and plead guilty to the charges before you are sentenced.32 If the judge allows you to receive drug treatment, sentencing will be delayed for a period of 18 months to three years while you complete it.

Upon your successful completion of drug treatment, the judge will dismiss your case.  Once your case is dismissed, the arrest ceases to exist for most purposes.  Most importantly, you will not need to disclose it on most job, housing and similar applications.33

5.  Defenses to charges under Health and Safety Code 11358

There are numerous possible defenses to charges of unlawfully cultivating marijuana in California.

Here are just a few:

  • the marijuana belonged to someone else

    Example
    : Alexandra lives in a condominium building with 14 units.  Pot is found growing in the communal garden, just outside her window.  But having a 1/14th interest in the garden isn't enough, in itself, to make Alexandra guilty of cultivating marijuana.

  • you didn't know the pot was there

    Example
    : Someone plants marijuana on vacation property owned by Brandon.  Brandon only visits his vacation property twice a year.

    Even though the plants are on Brandon's property, it isn't enough to convict him of growing marijuana.  The prosecutor must prove… at the very least… that Brandon knew about the plants and did nothing about it.34

  • you didn't know that it was marijuana

    merely removing a few leaves from a marijuana plant: Caroline's boyfriend plants a garden at Caroline's house. Some of the plants are marijuana.  Caroline sees the plants every time she goes out to water the garden, but she doesn't know that they are marijuana.

    Unless the prosecutor can establish that Caroline knew what marijuana plants look like, Caroline should be found not guilty of violating Health and Safety Code 11358.

  • you are legally entitled to use medical marijuana

    The right to use medical marijuana under California's Compassionate Care Act is an affirmative defense to charges of illegally cultivating marijuana.35 You don't need to have a state-issued medical marijuana ID card to use this defense.

    However, the burden is on you to prove:

    1.  you have a serious medical condition (as defined in the CUA), and
    2.  a physician recommended or approved marijuana for its treatment.36

    Example: Devon smokes marijuana for relief from the pain of fibromyalgia. His doctor testifies that Devon experiences significant pain, and that other medications have failed to relieve it.

    The doctor also says that she refused to prescribe Devon marijuana… but that she told Devon that she would prescribe it if it were legal for her to do so.  This is enough to establish that Devon is legally entitled to use medical marijuana in California.37

  • the marijuana was intended solely for your personal use

    Sometimes people who grow medical marijuana are accused of growing more than they need for personal, medical use.

    If you are a medical marijuana user… and the amount of marijuana you grow is reasonably related to the amount necessary for your medical use… you have a defense to Health and Safety Code 11358 HS.

    Example:  Gregor is busted for growing 25 pot plants.  Even though he uses marijuana legally to treat his glaucoma, the prosecutor charges him with unlawfully cultivating more than is necessary for personal use.

    But Gregor can prove his yard is subject to high temperatures for much of the year.  Marijuana plants don't do well at high temperature and many of his plants die.38 Accordingly, a jury may conclude that the amount of marijuana Gregor grows is reasonably related to his personal, medical needs.
  • you are the primary caregiver for a medical marijuana patient

If you grew the marijuana on behalf of a medical marijuana patient, you are exempt from prosecution under HS 11358.

Being a primary caregiver is an affirmative defense.39 Therefore, the burden is on you to prove that:

  1. you meet the definition of a primary caregiver under the CUA,

  2. the person for whom you provide care has a legal right to use medical marijuana, and

  3. the amount of marijuana you grew was reasonably related to the patient's medical needs.

    Example:  Eugenia helps look after her brother, who has AIDS.  She shops for him, walks his dog, and prepares his food.  She also grows pot for her brother, since he is afraid of the pesticides that might be in the marijuana sold by dispensaries.

    Since Eugenia meets the definition of a primary caregiver under the CUA, she is not guilty of growing marijuana in violation of California law, as long as the amount she grows is reasonably related to her brother's legitimate medical needs.
  • the pot was found during an illegal search

The Fourth Amendment to the U.S. Constitution protects people from unreasonable searches and seizures.40 If the police discovered your marijuana plants as the result of an illegal search, the case against you should be dropped.

Example:  A neighbor told the police that Fred was growing a large quantify of pot on his property.  The alleged plants were not visible from the road. Rather than attempting to obtain a warrant, the officer flew a helicopter over Fred's property. When he saw the plants, he arrested Fred.

Because the plants were not visible from the road, the use of a helicopter to look at Fred's property constituted an illegal search.  The case against Fred should be thrown out.41

6.  Related California offenses
6.1  Simple possession of marijuana – Health and Safety Code 11357

Simple possession of marijuana -- California Health and Safety Code 11357 – is a lesser-included offense of marijuana cultivation.  If you are found guilty of unlawfully cultivating marijuana, you will not receive a separate punishment for possessing it.42

6.2  Possession of marijuana with intent to sell – Health and Safety Code 11359

Since one marijuana plant produces a very limited amount of usable pot, people often grow several marijuana plants at a time.

Unfortunately, many California prosecutors automatically assume that anyone who grows more than a few plants intends to sell them. Therefore, people who grow pot purely for recreational use (or even legitimate medical use) are often charged with violating Health and Safety Code 11359-marijuana possession with intent to sell.

6.3  Selling marijuana - Health and Safety Code 11360

California Health and Safety Code 11360 HS makes it unlawful to:

  • transport,
  • import into California,
  • sell,
  • furnish,
  • administer,
  • give away, or
  • offer…

marijuana… or to attempt to do to any of the foregoing.43

There is a small exception under the CUA allowing primary caregivers to pick up medical marijuana for patients and to give it to them for medical use. However, selling, giving away, transporting, or growing large quantities of marijuana is still illegal.44

Except as permitted by the CUA, the transfer of not more than 28.5 grams (one ounce) of marijuana (other than concentrated cannabis) is a misdemeanor, punishable by a $100 fine.#45

The transfer of any amount of concentrated cannabis, or more than 28.5 grams (one ounce) of marijuana, is a felony, punishable by up to four years in jail.46

7.  Marijuana Cultivation & Federal law
7.1  The Federal Controlled Substances Act

Title 21 of the United States Code is the federal “Controlled Substances Act” (“CSA”).  It classifies marijuana as a Schedule 1 hallucinogenic drug.47 This means that, in the opinion of the federal government, marijuana has a high potential for abuse and no currently accepted medical use.48

Under the Supremacy Clause of Article VI of the United States Constitution, the CSA takes precedence over California marijuana laws, including the CUA.49 Thus, even people legally entitled to use medical marijuana under California law commit a federal crime when they cultivate marijuana.50

A first offense for “manufacturing” (cultivating) fewer than 50 marijuana plants is punishable by:

  • Up to five (5) years in prison, and
  • A fine of up to $250,000.51

As a practical matter, however, the U.S. government is not interested in prosecuting people who comply with state laws on the use of medical marijuana.52

Even casual recreational users who grow marijuana for their personal use face little risk of federal prosecution.53 According to the White House, most people serving time in federal prisoners on drug charges have been convicted of drug trafficking.54

7.2  Marijuana cultivation and immigration

A California conviction for marijuana cultivation counts as an “aggravated felony” for purposes of the Immigration and Nationality Act.

Accordingly, you face deportation if:

  1. you are an undocumented alien, and
  2. you plead guilty to – or are found guilty of – unlawful California cultivation of marijuana.55
7.3  Marijuana cultivation on federal property or in HUD housing

The CSA applies on federally owned property within California.  Even medical marijuana users and primary caregivers face federal prosecution if they cultivate marijuana on federal property, such as a national park.

Additionally, the U.S. Department of Housing and Urban Development (“HUD”) lets local housing authorities set their own policies on medical marijuana use and cultivation.  Many don't allow medical marijuana in HUD housing. Although rarely enforced, the discovery of medical marijuana in HUD housing can lead to the loss of food stamps and other federal benefits.56



Call us for help...

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For more information about California's marijuana laws, or to discuss your case confidentially with one of our criminal defense attorneys, please don't hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada's marijuana laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.

Legal references:

1 People v. Tierce (1985) 211 Cal.Rptr. 325, 165 Cal.App.3d 256. (One who removes the leaves from marijuana plants in order to render the leaves useful for smoking is engaged in “processing” of the drug, within meaning of HS 11358).

2 People v. Bradford (App. 3 Dist. 1995) 45 Cal.Rptr.2d 757, 38 Cal.App.4th 1733.

3 California Health and Safety Code 11358 HS.  Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

See also California Penal Code 1170(h)(1). Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.

And see California Penal Code 1170(b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.

4 California Penal Code 1000 PC.

5 California Health and Safety Code 11362.7 defines a “serious medical condition" as:

  1. Acquired immune deficiency syndrome (AIDS).
  2. Anorexia.
  3. Arthritis.
  4. Cachexia [wasting syndrome].
  5. Cancer.
  6. Chronic pain.
  7. Glaucoma.
  8. Migraine.
  9. Persistent muscle spasms, including, but not limited to, spasms associated with multiple sclerosis.
  10. Seizures, including, but not limited to, seizures associated with epilepsy.
  11. Severe nausea, and
  12. Any other chronic or persistent medical symptom that either:
    1. Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 (Public Law 101-336), or
    2. If not alleviated, may cause serious harm to the patient's safety or physical or mental health.

6 California Health and Safety Code 11362.71(f). It shall not be necessary for a person to obtain an identification card in order to claim the protections of Section 11362.5.

See also People v. Kelly (2010) 47 Cal.4th 1008, 222 P.3d 186 (“Whether or not a person entitled to register under the MMP elects to do so, that individual, so long as he or she meets the definition of a patient or primary caregiver under the CUA, retains all the rights afforded by the CUA.”).

7 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.

8 California Health and Safety Code 11362.77.
(a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient.
(b) If a qualified patient or primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs.
(c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a).

See also People v. Trippet (1997) 56 Cal.App.4th 1532, 66 Cal.Rptr.2d 559 (“…the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs. What precisely are the “patient's current medical needs” must, of course, remain a factual question to be determined by the trier of fact. One (but not necessarily the only) type of evidence relevant to such a determination would be the recommending or approving physician's opinion regarding the frequency and amount of the dosage the patient needs.”)

9 California Health and Safety Code 11362.765(a).

10 California Health and Safety Code 11018. "Marijuana" means all parts of the plant Cannabis sativa L.,whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.

11 California Health and Safety Code 11358 HS, endnote 3.

12 People v. Bradford, endnote 2.

13 People v. Tierce, endnote 1.

14 The Compassionate Use Act of 1996 is codified in Health and Safety Code § 11362.5 and subsequent sections.

15 California Health and Safety Code § 11362.5(d) HS:  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.

16 See same.

17 California Health and Safety Code 11362.7(h).

18 California Health and Safety Code 11362.5(e). For the purposes of this section, "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.

19 People v. Mentch (2008) 45 Cal.4th 274 (“[A] defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana.”).

20 California Health and Safety Code 11362.77.(a), endnote 8.

See also Littlefield v. County of Humboldt (2013) 159 Cal.Rptr.3d 731, 218 Cal.App.4th 243. (holding that the amount of marijuana that may be possessed under the Compassionate Use Act (CUA) is a flexible standard based upon the individual user, it is not without reasonable limits that include consideration of quantity).

21 See endnote 6.

22 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.

23 California Health and Safety Code 11362.775.  Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357,11358, 11359, 11360, 11366, 11366.5, or 11570.

24 Judicial Council of California Criminal Jury Instructions (CALCRIM) 2370.  The defendant is charged [in Count ] with [unlawfully] (planting[,] [or]/ cultivating[,] [or]/ harvesting[,] [or]/ drying[,] [or]/processing) marijuana, a controlled substance [in violation of Health and Safety Code section 11358].

25 See e.g., People v. Villa (1983) 144 Cal. App. 3d 386, 192 Cal. Rptr. 674 (holding that jury instruction based on the definition in Webster's Third new International Dictionary was valid, because it properly focused on the act of gathering, which could apply to an entire crop, or a portion of a crop, however small).

26 People v. Tierce, endnote 1.

27 See e.g., People v. Solis (1961) 193 Cal.App.2d 68, 13 Cal.Rptr. 813.

28 People v. Castellanos, 157 Cal.App.2d 36, 39, 320 P.2d 152, 153: (“Evidence of other acts of a similar nature and of other crimes is admissible in evidence when not too remote, to show defendant's knowledge of the narcotic nature of the object possessed.”).

29 See People v. Joubert  (“[T]he evidence showed [defendants'] residence was some 400 yards from the cultivated area. The area could be reached by a network of well-used roads and footpaths, and there was evidence that [defendant] was one of the record owners of the entire parcel… It is also relevant that [defendant] went to the sheriff's office to reclaim the two bags of fertilizer seized by the police.”).

30 California Health and Safety Code 11358 HS, endnote 2.

31 California Penal Code 1170(h) PC, endnote 2.

32 You are not eligible for DEJ if:

  1. you have a prior conviction for any offense involving a controlled substance;
  2. you have been charged with a crime of violence or threatened violence;
  3. there is evidence that your violation includes certain crimes involving serious narcotics;
  4. you have ever had probation or parole revoked for not completing its terms;
  5. you have received DEJ under PC 1000 within the previous five years; or
  6. you have been convicted of a felony within the previous five years.

See California Penal Code 1000(a).

33 California Penal Code 1000.4.

34 People v. Null (1984) 157 Cal.App.3d 849, 852, 204 Cal.Rptr. 580 (“If [the landowner] knew of the existence of the illegal activity, her failure to take steps to stop it would aid and abet the commission of the crime. This conclusion is based upon the control that she had over her property.”).

35 See e.g., People v. Dowl (2013) 161 Cal.Rptr.3d 103, 57 Cal.4th 1079, 305 P.3d 1259, rehearing denied.

36 See CALCRIM 2370:

<Defense: Compassionate Use>
[[Possession or cultivation of marijuana is lawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or cultivate marijuana (for personal medical purposes/ [or] as the primary caregiver of a patient with a medical need) when a physician has recommended [or approved] such use. The amount of marijuana possessed or cultivated must be reasonably related to the patient's current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.

[A primary caregiver is someone who has consistently assumed responsibility for the housing, health, or safety of a patient who may legally possess or cultivate marijuana.]]

37 See, e.g., People v. Trippet, endnote 8 (physician who testifies he would have prescribed marijuana for defendant's migraine headaches if it were legal, has given tacit approval of cannabis use under the CUA).

38 See e.g., Weed Farmer, How to Grow Cannabis? Temperature – Cannabis Growing Guide.

39 Same.

40 United States Constitution, Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

41 Based on People v. Sneed (1973) 108 Cal.Rptr. 146, 32 Cal.App.3d 535 (Officers' flight in helicopter hovering 20 to 25 feet above backyard of house rented by defendant, in search for marijuana plants which were not visible from road, constituted an unreasonable governmental instruction into serenity and privacy of defendant's backyard and amounted to a “search” without warrant that did not fall within limited classes of searches for which warrant is not required.)

42 See CALCRIM 2370 notes.

43 California Health and Safety Code 11360.
(a) Except as otherwise provided by this section or as authorized by law, 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 pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three or four years.
(b) Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100). In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.

44 People v. Young (2001) 111 Cal.Rptr.2d 726, 92 Cal.App.4th 229, review denied.

45 Same.

46 Same.

47 21 U.S. Code 812(c), Schedule I (c)(10).

48 21 U.S. Code 811(b)(1).

49 Gonzales v. Raich (2005) 545 U.S. 1.

50 See People v. Mitchell (2014) 170 Cal.Rptr.3d 825, 225 Cal.App.4th 1189, review filed. (holding that the Medical Marijuana Program Act (MMPA) is a defense only to California law, not to the federal law making marijuana cultivation a federal felony).

51 21 U.S. Code 841(b)(1)(D).

52 See the Deputy Attorney General’s Memorandum for selected U.S. Attorneys regarding Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana, October 19, 2009.

53 See, e.g.,  Americans for Safe Access Now, Federal Marijuana Policy.

54 Office of National Drug Policy, Answers to Frequently Asked Questions about Marijuana.

55 U.S. v. Reveles-Espinoza, C.A.9 (Cal.) 2008, 522 F.3d 1044, certiorari denied 129 S.Ct. 247, 555 U.S. 908 (Alien's California conviction for marijuana cultivation was an “aggravated felony” within meaning of the Immigration and Nationality Act (INA), such that he was not eligible for cancellation of removal; by pleading guilty to charge that he planted, cultivated, harvested, dried, and processed marijuana, alien admitted guilt of activities that were clearly within the ambit of the federal felony of manufacturing marijuana.).

56 California NORML, Patients' Guide to Medical Marijuana Law in California.

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