California is one of two dozen states that have legalized marijuana for medical use.
Yet recreational use of marijuana is still unlawful in California. And selling marijuana -- or even possessing it with the intent to sell it -- can subject you to stiff criminal penalties.
To help you understand the nuances of laws on marijuana, our California criminal defense lawyers will explain the following:
1. Simple possession - Health and Safety Code 11357
Health and Safety Code 11357 HS is the California marijuana law that prohibits possession for personal use (“simple possession”).
An ounce of marijuana weighs approximately 28.35 grams. So you do not commit a crime when you possess one ounce or less of marijuana for your personal use.
The following, however, are crimes:
- Possession of more than 28.5 grams,2
- Possession of marijuana on school grounds (K-12),3 or
- Possession of any amount of concentrated cannabis.4
Punishment for simple possession of marijuana is as set out in the chart below.
|HS 11357 Offense||Type of Penalty||Jail Time||Max. Fine|
|28.5 grams or less||infraction||none||$ 100|
28.5 grams or less on school grounds
|misdemeanor||10 days||$ 500|
|28.5 grams or less on school grounds
by someone under 18 years of age
1st offense: none
2nd offense: 10 days
|More than 28.5 grams||misdemeanor||6 months||$ 500|
16 months or
The penalties for unlawful simple possession of marijuana for personal use
2. Cultivation - Health and Safety Code 11358
California Health and Safety Code 11358 HS (marijuana cultivation) punishes people who grow, harvest or process pot.
Unless you are a legal medical marijuana user or primary caregiver, it is unlawful to:
- dry, or
marijuana or any part of the marijuana plant.
The unlawful cultivation of marijuana is a California felony. The penalty for a first offense is:
- 16 months, or two or three years in county jail.5
3. Possession with Intent to Sell – Health and Safety Code 11359
Possession of marijuana for sale is a felony. It is punishable by:
- 16 months, or two or three years in county jail.6
Proof of intent to sale 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, Gift, Transport, or Import – Health and Safety Code 11360
California Health and Safety Code 11360 HS is a broad law preventing the movement or transfer of marijuana.
It makes it unlawful to do -- or attempt to do -- any of the following:
- transport for sale,
- import into California,
- give away,
- or offer…
There are some limited exceptions for medical marijuana users and their primary caregivers. But for everyone else, giving away or transporting not more than 28.5 grams of marijuana (other than concentrated cannabis) is a misdemeanor.
Giving away or transporting for sale less than an ounce of pot is punishable by:
- a $100 fine.9
Every other transfer of marijuana – including transport for sale or transfer of more than an ounce or a sale of any amount -- is a felony.
Felony violations of Health and Safety Code 11360 carry a penalty of:
- 16 months, or 2 or 3 years in county jail.10
|HS 11357 Offense||Type of Penalty||Jail Time||Max. Fine|
|Gift or transport of 28.5 grams or less
(other than concentrated cannabis)
|Gift/transport of more than 28.5 grams
or any amount of concentrated cannabis
|felony||2, 3 or 4 years||none|
|Sale/import of any amount of marijuana||felony||2, 3 or 4 years||none|
The penalties for the unlawful sale, gift, import or transport of marijuana
5. Selling marijuana to a minor – Health and Safety Code 11361
California Health and Safety Code 11361 HS makes it a felony for anyone 18 years or older to sell marijuana to a minor.
Section 11361 also makes it a felony to use a minor unlawfully to:
- give away,
- prepare for sale, or
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
“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
However, for non-medical marijuana users, California imposes far greater punishment for concentrated cannabis than for other forms of marijuana. With the exception of simple possession of concentrated cannabis -- which is a wobbler offense -- crimes involving concentrated cannabis are always punished as a felony. (See charts set forth above).
In addition, if you produced concentrated cannabis yourself -- and you use a toxic chemical, such as butane -- you may be found guilty of chemical extraction of a controlled substance under California Health and Safety Code 11379.6 HS.
The penalty for chemical extraction of a controlled substance is:
- a fine of up to $50,000, AND
- three, five or seven years in state prison.16
This felony penalty is in addition to any punishment you receive for processing marijuana under Health and Safety Code 11358 HS.
7. Driving with Marijuana -- Vehicle Code 23222(b)
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.
Driving with marijuana is an infraction. It can be punished by:
- up to a $100 fine.18
This punishment is separate from -- and in addition to -- the penalty for possessing marijuana under California Health and Safety Code 11357 HS.
8. Medical Marijuana
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.
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:
- Multiple sclerosis,
- Seizures, or
- Any other debilitating condition, including chronic pain or serious nausea.19
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.20
What may medical marijuana patients and primary caregivers legally do?
Medical marijuana users and their primary caregivers are exempt from laws prohibiting:
- simple possession,
- transport, and
The exemption applies 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.22
Under no condition, however, may they sell marijuana, or possess or cultivate more than is reasonably related to the patient's medical use.
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.”
9. Drug Diversion (Treatment) Instead of Jail Time
Non-violent first- and second-time offenders who are arrested for simple possession or cultivation of marijuana for personal use may be eligible for diversion to a drug treatment program instead of jail.
California has two different drug diversion programs:
- Deferred entry of judgment (DEJ), and
- Proposition 36.
Deferred entry of judgment (DEJ) -- California Penal Code 1000 PC
“Deferred entry of judgment (DEJ)” may be available if you are charged with either:
- Simple possession, or
- Cultivation for personal use.
To receive DEJ, you must plead guilty to the charges and file a presentencing petition with the court.
If the judge grants your petition, your sentencing will be held off while you receive drug treatment. Treatment must last at least 18 months (but not more than three years).
Upon successful completion of the program, the judge will dismiss your case. For most purposes, the arrest will simply cease to exist.23
You are ineligible for DEJ under Penal Code 1000 PC, however, if:
- You have prior drug convictions,
- You have ever had probation or parole revoked or non-compliance, or
- Within the last 5 years, you have received DEJ or been convicted of a felony.24
Proposition 36 -- the "Substance Abuse and Crime Prevention Act of 2000”
You do not always need to plead guilty and receive a DEJ in order to receive drug treatment instead of jail time.
Under Proposition 36 -- the "Substance Abuse and Crime Prevention Act of 2000 -- the judge is required to sentence eligible offenders to drug treatment instead of jail.
You are an eligible offender if:
- You are a non-violent first- or second-time offender, and
- You are accused of simple possession of drugs.
You are not eligible for Prop. 36 drug treatment if the charge is for cultivation. But if the charge is for simple possession, you are eligible for Prop. 36 sentencing even if you filed a petition for DEJ and it was denied.
10. Federal Law
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.25
The CSA takes precedence over the laws of California.26 Technically, therefore, when you sell, transport, or give away marijuana, you violate federal as well as California law. This is true even if you qualify as a medical marijuana user or primary caregiver.27 The CSA does not contain an exception for medical marijuana use.
Penalties under federal law
Marijuana-based offenses are punished much more severely under federal law.28 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.29
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 $250,000.30
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.31
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. The federal government is primarily interested in prosecuting large-scale traffickers and those with links to organized crime.32
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.33
The U.S. Department of Housing and Urban Development (“HUD”) allows local housing authorities to set their own policies on medical marijuana use.34
Federally assisted housing can legally be denied to medical marijuana users. And although rarely enforced, the use of medical marijuana in HUD housing can subject patients to the termination of other federal benefits, including food stamps.35
11. Marijuana and Immigration
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.36
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...
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.
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1 California Health and Safety Code 11357(b) HS.
2 California Health and Safety Code 11357(c) HS.
3 California Health and Safety Code 11357 (d) [by person 18 and over] and (e) [by person under 18].
4 California Health and Safety Code 11357(a) HS.
5 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.
6 11359. Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.
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(b) HS.
10 California Health and Safety Code 11360(a) HS.
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 Health and Safety Code 11379.6.(a).
17 California Vehicle Code 23222(a) VC.
18 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.
19 See California Health and Safety Code 11362.7.
20 California Health and Safety Code 11362.5(e).
21 California Health and Safety Code 11362.765(a) and (b).
22 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).
23 California Penal Code 1000.4.
24 California Penal Code 1000(a).
25 See 21 U.S. Code Sections 811(b)(1) and 812(c), Schedule I (c)(10).
26 Article VI, Paragraph 2 of the United States Constitution (the “Supremacy Clause”).
See also Gonzales v. Raich (2005) 545 U.S. 1.
27 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).
28 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.
29 See 21 U.S. Code 844.
30 However, distribution of a minimal amount of marijuana for no remuneration is treated as simple possession and punished under 21 U.S. Code 844.
31 See Yeh, endnote 28.
32 See Office of National Drug Policy, Answers to Frequently Asked Questions about Marijuana.
33 See e.g., 21 USC 841(b)(5), which includes a minimum fine of $500,000 for cultivation on federal property.
34 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.
35 California NORML, Patients' Guide to Medical Marijuana Law in California.
36 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.).