California Marijuana Laws
Explained by Criminal Defense Lawyers

In November of 2016, California voters passed Proposition 64, which legalized the use of recreational marijuana in California for adults 21 and over, as well as the sale and cultivation of marijuana in compliance with strict regulations.

Medical marijuana use has also been legal in California since 1996.

But people who use, sell or cultivate marijuana outside of the strict rules set forth in our marijuana laws may still face criminal penalties.

To help you understand the nuances of laws on marijuana, our California criminal defense lawyers will explain the following:

  1. Possession for Personal Use – Health and Safety Code 11357
  2. Cultivation – Health and Safety Code 11358
  3. Possession with Intent to Sell – Health and Safety Code 11359
  4. Sale, Gift, Transport, or Import – Health and Safety Code 11360
  5. Sale to a Minor – Health and Safety Code 11361
  6. Concentrated Cannabis
  7. Driving with Marijuana
  8. Medical Marijuana
  9. Federal Law
  10. Marijuana and Immigration
1. Simple possession - Health and Safety Code 11357

Health and Safety Code 11357 HS is the California marijuana law that sets forth the rules for personal possession of marijuana.

Possession for personal use of not more than 28.5 grams of marijuana (a bit more than an ounce) is legal in California as of November 2016, for people age 21 and older. So is possession of up to 4 grams of concentrated cannabis (hasish).[1]

The following, however, are crimes (either California misdemeanors or California infractions):

  • Possession of marijuana by anyone under 21,[2]
  • Possession of more than 28.5 grams of marijuana or more than 4 grams of concentrated cannabis,[3]
  • Possession of marijuana or concentrated cannabis on the grounds of any K-12 school while school is in session.[4]

Punishment for illegal possession of marijuana is as set out in the chart below.

HS 11357 marijuana possession offense

Type of offense

Penalty

Possession of marijuana or concentrated cannabis by people under 21

Infraction

Drug counseling and community service (defendants under 18); fine of up to $100 (defendants 18 and over)

Possession of more than 28.5 grams of marijuana or more than 4 grams of concentrated cannabis (defendants 18 and over)

Misdemeanor

Up to 6 months in county jail; up to $500 fine

Possession of more than 28.5 grams of marijuana or more than 4 grams of concentrated cannabis (defendants under 18)

Infraction

Drug counseling and community service

Possession of marijuana or concentrated cannabis on the grounds of a K-12 school (defendants 18 and over)

Misdemeanor

Up to $250 fine for first offense

Possession of marijuana or concentrated cannabis on the grounds of a K-12 school (defendants under 18)

Infraction

Drug counseling and community service

HS 11357 marijuana possession offense

Type of offense; penalty

Possession of marijuana or concentrated cannabis by people under 21

Infraction; drug counseling and community service (defendants under 18); fine of up to $100 (defendants 18 and over)

Possession of more than 28.5 grams of marijuana or more than 4 grams of concentrated cannabis (defendants 18 and over)

Misdemeanor; up to 6 months in county jail; up to $500 fine

Possession of more than 28.5 grams of marijuana or more than 4 grams of concentrated cannabis (defendants under 18)

Infraction; drug counseling and community service

Possession of marijuana or concentrated cannabis on the grounds of a K-12 school (defendants 18 and over)

Misdemeanor; up to $250 fine for first offense

Possession of marijuana or concentrated cannabis on the grounds of a K-12 school (defendants under 18)

Infraction; drug counseling and community service


2. Cultivation - Health and Safety Code 11358
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California Health and Safety Code 11358 HS (marijuana cultivation), as amended by Proposition 64, allows most people who are 21 and over to cultivate up to six (6) marijuana plants.

People under 21 who grow any amount marijuana, though, are guilty of an infraction. People under 18 who cultivate marijuana illegally must attend drug counseling and perform community service. People 18 and over (but under 21) may be fined up to $100.

And cultivating over six marijuana plants remains a crime. Most defendants who plant, cultivate, harvest, dry or process more than 6 living marijuana plants will be charged with a misdemeanor and face up to six (6) months in county jail and/or a fine of up to $500.

AND cultivating more than 6 marijuana plants can be charged as a California felony for the following defendants:

  • People 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.[5]
3. Possession with Intent to Sell – Health and Safety Code 11359
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Proposition 64 legalized the sale of marijuana--but only for businesses that obtain and operate in accordance with a state license (and possibly local licenses as well).

As a result, possession of marijuana with the intent to sell it without a license remains a crime under Health and Safety Code 11359 HS (California's possession of marijuana for sale law).

For most adult defendants, HS 11359 possession for sale without a license is a misdemeanor, carrying the following penalties:

  • Up to six (6) months in county jail, and/or
  • A fine of up to five hundred dollars ($500).

But marijuana possession for sale without a license is a felony if any of the following is true:

  1. You have a prior conviction for one of a list of particularly serious violent felonies, including murder, sexually violent offenses, sex crimes against a child under 14, or gross vehicular manslaughter while intoxicated, or a sex crime that requires you to register as a sex offender;
  2. You have two (2) or more prior misdemeanor convictions for marijuana possession for sale; or
  3. You possessed marijuana for sale in connection with a knowing sale or attempted sale to someone under 18.

For these defendants, possessing marijuana for sale is punishable by 16 months, or two or three years in county jail.[6]

Proof of intent to sell marijuana without a license is usually made by circumstantial evidence (“indicia of sale”).[7]

Such evidence can include:

  • a large quantity of marijuana,
  • the presence of items such as baggies and scales,
  • pot divided into multiple baggies or containers,
  • the presence of cash and/or weapons, and/or
  • the opinion of the arresting officer that the marijuana was for sale.[8]
4. Sale of Marijuana without a License – Health and Safety Code 11360
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Under California's marijuana legalization law, you can only sell marijuana if you have obtained a license to do so. These licenses will be issued by a newly-created Bureau of Marijuana Control. 

If you don't have a license, then selling pot--or transporting it in order to sell it--is still a crime under California Health and Safety Code 11360 HS. Under Prop 64, HS 11360 has become a law intended to prohibit a "black market" in marijuana.

For most defendants, unlicensed sale or transport for sale of marijuana is a misdemeanor punishable by up to six (6) months in county jail and/or a fine of up to one thousand dollars ($1,000). (For defendants under 18, it is an infraction. Also, giving away or transporting for sale up to 28.5 grams of marijuana without a license is an infraction.)

But sale/transport for sale of marijuana without a license to do so is a felony for the following defendants:

  1. Defendants who ave a prior conviction for one of a list of particularly serious violent felonies, including murder, sexually violent offenses, sex crimes against a child under 14, or gross vehicular manslaughter while intoxicated, or a sex crime that requires them to register as a sex offender;
  2. Defendants who have two (2) or more prior convictions for HS 11360 sale/transportation of marijuana; 
  3. Defendants who knowingly sold, attempted to sell, or offered to sell or furnish marijuana to someone under 18; and
  4. Defendants who imported or attempted or offered to import into California, or transported or attempted/offered to transport out of California for sale, more than 28.5 grams of marijuana or more than four grams of concentrated cannabis.

In any of these scenarios, black market sale or transportation for sale of marijuana under HS 11360 is punishable by two (2), three (3) or four (4) years in jail.[9]

Finally, transporting marijuana without intent to sell it, or giving marijuana away, is not a crime in California so long as both of the following are true:

  1. You transport or give away not more than 28.5 grams of marijuana or eight grams of concentrated cannabis, and
  2. Any people you give marijuana to are 21 years of age or older.[10]
5. Selling marijuana to a minor – Health and Safety Code 11361
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California Health and Safety Code 11361 HS makes it a felony for anyone 18 years or older to sell marijuana to a minor. This law is unchanged by Proposition 64/marijuana legalization.

Section 11361 also makes it a felony to use a minor unlawfully to:

  • transport,
  • carry,
  • sell,
  • give away,
  • furnish,
  • administer,
  • prepare for sale, or
  • peddle…

any amount or type of marijuana.[11]

Sentences for violating California Health and Safety Code 11361 are served in California state prison, rather than county jail.

If the minor involved is under 14 years of age, the penalty is:

  • three, five or seven years in state prison.[12]

If the minor is over 14, but less than 18, the penalty is:

  • three, four or five years in state prison.[13]
6. Concentrated Cannabis
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Concentrated cannabis in its many forms

“Concentrated cannabis” is the separated resin (whether crude or purified) obtained from the marijuana plant.  It is commonly referred to as “hashish” or “hash.”[14]

Concentrated cannabis is considered to be marijuana under California law.  This means, among other things, that people entitled to possess, cultivate, or transport medical marijuana may do the same with concentrated cannabis.[15]

Also, under Proposition 64, simple possession of concentrated cannabis for recreational use is legal--but a person may only possess up to 4 grams for personal use.

7. Driving with Marijuana -- Vehicle Code 23222(b)
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California Vehicle Code 23222(b) VC prohibits driving in possession of up to 28.5 grams of marijuana. It is a sister provision to the law against driving with an open container of alcohol in your vehicle. Proposition 64 did not change this law.

Driving with marijuana is an infraction.  It can be punished by:

  • up to a $100 fine.[16]
8. Medical Marijuana
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Medical marijuana was made legal by voter approval of Proposition 215.  It is known as California's Compassionate Use Act of 1996 (the “CUA”).  The CUA is set forth in California Health and Safety code 11362.5 HS and subsequent sections.

Proposition 64, legalizing recreational marijuana, was passed two decades after Prop 215. Now that recreational marijuana is legal, California's medical marijuana laws and system may become irrelevant.

However, until January 1, 2018 (the latest date on which California's government can begin to issue licenses for recreational marijuana sales), users of medical marijuana will need to continue to obtain marijuana through the existing medical marijuana legal system.

Who may legally use medical marijuana?

Under the CUA, you are legally entitled to use medical marijuana if a doctor has recommended it or approved it 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.[17]

The definition of a “primary caregiver”

You are a “primary caregiver” if you are:

  • designated for that purpose by the patient, and
  • are consistently responsible for the patient's housing, health, and/or safety.[18]

What may medical marijuana patients and primary caregivers legally do?

California's medical marijuana laws authorize possession, cultivation, transport and administration of medical marijuana, as long as the marijuana is:

  • for the patient's personal use, and
  • in an amount reasonably related to the patient's current medical needs.[19]

Under no condition, however, may they sell marijuana, or possess or cultivate more than is reasonably related to the patient's medical use.

Proposition 64 requires all medical marijuana users to obtain a new recommendation from their physician by January 1, 2018.

Medical marijuana dispensaries

California law also allows distribution of medical marijuana through non-profit medical marijuana dispensaries, collectives or cooperatives.

There are strict state and local requirements for the operation of dispensaries. But legally operating dispensaries may give marijuana to medical marijuana patients and their primary caregivers, or sell it to them “at cost.”

In the wake of Proposition 64, it is unclear whether medical marijuana dispensaries will continue to operate long-term or will be folded into the new market for legal recreational marijuana.

9. Federal Law
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The federal Controlled Substances Act

Title 21 of the United States Code is the federal “Controlled Substances Act” (“CSA”).  Under the CSA, marijuana is a Schedule 1 hallucinogenic drug. This means the government believes it has a high potential for abuse and no currently accepted medical use.[20]

The CSA takes precedence over the laws of California.[21] Technically, therefore, when you sell, transport, or give away marijuana, you violate federal law--even if you are abiding by California's medical marijuana law or recreational marijuana legalization law.[22] 

Penalties under federal law

Marijuana-based offenses are punished severely under federal law.[23] Just a couple of examples will illustrate this point.

A first offense for simple possession of marijuana is punishable by:

  • a fine of up to $1,000, and
  • up to one year in federal prison.[24]

Cultivation, possession with intent to sell, and/or sale of less than 50 pounds of marijuana or 50 plants is punishable by:

  • up to five (5) years in federal prison, and
  • a fine of up to $250,000.[25]

Fines and periods of incarceration increase for greater quantities of marijuana or conviction of subsequent offenses.

In addition, if you are convicted of any federal drug offense, you may also be ordered to reimburse the government its “reasonable costs” of investigating and prosecuting the offense.[26]

When federal prosecution for marijuana is likely to occur

As a practical matter, you are unlikely to be prosecuted under federal law if you use or cultivate pot for personal use, particularly in compliance with Prop 64.  The federal government is primarily interested in prosecuting large-scale traffickers and those with links to organized crime.[27]

However, federal (rather than California) law applies on federal property within the state of California. Examples of federal property include:

  • public airports,
  • federal buildings,
  • post offices,
  • national parks, and
  • federal courthouses.

If a violation of marijuana law occurs on federal property, it can be punished under federal law.  And federal penalties are generally greater for drug crimes that occur on federal property than those that occur elsewhere but are, nevertheless, prosecuted under federal law.[28]

HUD Housing

The U.S. Department of Housing and Urban Development (“HUD”) allows local housing authorities to set their own policies on marijuana use.[29]

Federally assisted housing can legally be denied to medical or recreational marijuana users.  And although rarely enforced, the use of marijuana in HUD housing can subject patients to the termination of other federal benefits, including food stamps.[30]

10. Marijuana and Immigration
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The sale of marijuana – and even possession with intent to sell -- is an “aggravated felony” for purposes of the Immigration and Nationality Act.  This is true regardless of whether you were convicted under California or federal law.[31]

The immigration consequences of a criminal conviction involving an aggravated felony include deportation.

If you are an undocumented alien, therefore, it is highly recommended that you consult with an experienced criminal defense attorney if you are accused of a crime involving marijuana.

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 law re possession for sale of marijuana. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.

¿Habla español? Visite nuestro sitio Web en español sobre las leyes de la marihuana en California.

Legal references:

1 California Health and Safety Code 11357(a) HS (as amended by Proposition 64).

2 Same.

3 California Health and Safety Code 11357(b) HS (as amended by Proposition 64).

4 California Health and Safety Code 11357(c) - (d) HS (as amended by Proposition 64).

5 California Health and Safety Code 11358 HS (as amended by Proposition 64).

6 California Health and Safety Code 11359 HS (as amended by Proposition 64).  

7 People v. Harris (2000) 99 Cal.Rptr.2d 618, 83 Cal.App.4th 371, review denied.

8 People v. De La Torre (1968) 268 Cal.App.2d 122, 73 Cal.Rptr. 704.

9 California Health and Safety Code 11360(a)-(b) HS (as amended by Proposition 64).

10 California Health and Safety Code 11362.1 HS (added by Proposition 64).

11 California Health and Safety Code 11361 HS.

12 California Health and Safety Code 11361(a).

13 California Health and Safety Code 11361(b).

14 Other names include marijuana resin, hash oil, honey oil, rosin, wax, butane hash oil (BHO), errl, earwax, budder, shatter, full melt, and rosin.  See, e.g., History of Cannabis Extractions.

15 See Opinion of the Attorney General, 86 Ops. Cal. Atty. Gen. 180 (October 21, 2003) (“Concentrated cannabis or hashish is included within the meaning of ‘marijuana' as that term is used in the Compassionate Use Act of 1996.”).

16 California Vehicle Code 23222(b) VC: Except as authorized by law, every person who possesses, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, not more than one avoirdupois ounce of marijuana, other than concentrated cannabis as defined by Section 11006.5 of the Health and Safety Code, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).

The Vehicle Code does not have code sections specifically prohibiting driving in possession of concentrated cannabis or with more than 28.5 grams of marijuana. Presumably this is because these are crimes punished under the Health and Safety Code.

17 See California Health and Safety Code 11362.7.

18 California Health and Safety Code 11362.765(a) and (b).

19 Medical marijuana users and primary caregivers may cultivate up to 6 mature plants, 12 immature plants or, with a doctor's recommendation, a greater amount consistent with the patient's reasonable needs.  California Health and Safety Code 11362.77(a).

20 See 21 U.S. Code Sections 811(b)(1) and 812(c), Schedule I (c)(10).

21 Article VI, Paragraph 2 of the United States Constitution (the “Supremacy Clause”).

See also Gonzales v. Raich (2005) 545 U.S. 1.

22 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).

23 For a full listing of federal drug penalties, see Brian T. Yeh, Drug Offenses: Maximum Fines and Terms of Imprisonment for Violation of the Federal Controlled Substances Act and Related Laws, Congressional Research Service, December 13, 2012.

24 See 21 U.S. Code 844.

25 However, distribution of a minimal amount of marijuana for no remuneration is treated as simple possession and punished under 21 U.S. Code 844.

26 See Yeh, endnote 28.

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

28 See e.g., 21 USC 841(b)(5), which includes a minimum fine of $500,000 for cultivation on federal property.

29 See The U.S. Department of Housing and Urban Development Memorandum re: Medical Marijuana Use in Public Housing and Housing Choice Voucher Programs, February 10, 2011.

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

31 See e.g., Moncrieffe v. Holder (2013), U.S. Supreme Court No. 11–702 (holding that the test is whether crime is necessarily punishable as a felony under state law).

See also Pedroza-Macias v. Holder, C.A.92011, 459 Fed.Appx. 589, 2011 WL 5357530, Unreported (Mexican alien's prior California conviction for possession of marijuana for sale was an aggravated felony for purposes of removal under Immigration and Nationality Act (INA), since conviction of offense would have been punishable as felony under federal drug laws.).

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