We live in a time when everybody is telling us to "Go Green" and plant backyard gardens like the President. But in California, Health and Safety Code 11358 makes cultivation of even just one harmless marijuana plant a felony crime, punishable by up to three (3) years in state prison and a $10,000 fine.
In this article, our Southern California Marijuana Defense Lawyers explain all about HS 11358 as well as common defenses that can be used to fight a prosecution for marijuana cultivation.Depending on the circumstances, it may be possible to get the cultivation charges reduced or dismissed...and even get your marijuana plants returned to you.
What is Marijuana Cultivation in California?
In California, Health & Safety Code 11358 prohibits all acts associated with growing and manufacturing pot, including:
- handling of the seeds,
- cultivation in soil, and then
- drying and processing of the marijuana once it's been harvested
Since one marijuana plant produces a very limited amount of usable pot, many people grow several marijuana plants at time. Unfortunately, however, California prosecutors automatically assume that anyone who grows more than a few plants intends to sell them. Therefore, many residents who grow pot purely for recreational use (or legitimate medical use) are often charged with violating not only HS 11358 but also Health & Safety Code 11359-marijuana possession with intent to sell.
What are the defenses to Marijuana Cultivation
In many cases, charges of HS 11358 can be reduced to simple marijuana possession (HS 11357) in California or dismissed completely, and custody-time can be avoided altogether. A few common strategies to fight a charge and prevent conviction of California marijuana cultivation are explained below:
1) The marijuana cultivation was legal under California's Medical Marijuana laws
California is one of the few states with a Medical Marijuana Program, created under Proposition 215 (also called the Compassionate Use Act of 1996). Pursuant to California's Medical Marijuana laws, residents who've been granted a medical marijuana card and who follow the Medical Marijuana Program's strict guidelines cannot be prosecuted for Health & Safety Code 11358.
California State Senate Bill 420 authorizes card-holding medical marijuana users to possess up to six (6) mature plants, twelve (12) immature plants, and eight ounces (8 oz.) of dried cannabis. (Some counties allow more. For instance, San Diego medical marijuana users may keep up to one pound (1 lb.) of cannabis and twenty-four (24) indoor plants.)
Technically, only those with cannabis cards in California may use the medical marijuana defense against a cultivation charge. That means ill residents who use weed without having been granted a Medical Marijuana ID card can still be prosecuted. However, in some rare circumstances, they may be able to fight a charge of marijuana cultivation in California if using the marijuana was a medical necessity, especially if acting under a doctor's recommendation.
2)You didn't cultivate the marijuana
Obviously, if you can raise a reasonable doubt about whether you cultivated the marijuana plants in question, the entire case may be dismissed. This defense often comes into play in situations where the marijuana is on a plot of land not owned by you or in a "common area" that many other people use and have access to.
3) The police performed an illegal search
According to the Fourth Amendment of the Constitution of the United States, all searches (including searches for marijuana) performed by law enforcement must be based on probable cause. Any evidence found as a result of an illegal search may not be used against you in court. For example:
An LAPD cop pulls John over for expired registration. While John is searching for his registration, the cop pops open the trunk and finds several marijuana plants. The cop arrests John for Health & Safety Code 11358, cultivating marijuana in Los Angeles, California.
Here, the policeman most likely did not have probable cause to search the trunk. The absence of a valid registration sticker probably justified a traffic stop and a fix-it ticket. But that alone does not give the officer a reasonable belief that the trunk contained illegal items.
In this situation, a Los Angeles criminal defense lawyer could a "suppression motion" under California Penal Code 1538.5 to challenge the legality of the search. If the judge grants the motion, the evidence of the marijuana plants would be thrown out of court...and the case dismissed.
4) The marijuana cultivation was NOT for the purpose of sale
If you can show that you cultivated marijuana for personal use and not for commercial distribution, then California Penal Code 1000 allows the court to suspend any jail time in favor of drug treatment and education, called "diversion." During a pretrial proceeding called a "Williamson Hearing," you may call expert witnesses to testify that your marijuana cultivation was not for the purpose of sale.
The following are some factors California courts consider when determining whether marijuana cultivation is for a commercial or recreational purpose:
- Your financial records. If all your money and assets can be traced to a "legitimate" source, the prosecution may be unsuccessful showing that your money generated from marijuana sales.
- Your typical marijuana consumption. If the amount of marijuana you smoke is equivalent to the amount of marijuana plants you grow, the prosecution will have a hard time arguing that your plants are for commercial use.
- How many plants you grow. The fewer marijuana plants you cultivate, the less of a possibility that the prosecution can convince the California court that they are possessed for sales purposes.
- Whether there's other evidence of you selling marijuana. If the police don't find any written records about your plants, or weight scales, or extensive packaging materials, or pay/owe sheets, and if they don't witness a lot of people coming to your place, the prosecution will have little evidence to work with when trying to demonstrate to the California court that you intended to sell the marijuana from your plants.
Penalties, punishment and Sentencing for Marijuana Cultivation in California
A person convicted under Health & Safety Code 11358 HS faces either probation or time (up to 3 years) in California State Prison. If probation is granted, the person most likely will have to report to a probation officer for 3 years, pay fines to the court, and may have to serve up to one year in the county jail.
To learn about Nevada marijuana cultivation laws, go to our page on Nevada marijuana cultivation laws.