Health and Safety Code § 11358 HS – California Marijuana Cultivation Laws

Our California criminal defense attorneys will answer the following key questions in this article:

• 1. When is it legal to cultivate hash for recreational use?
• 2. What are the penalties for the unlawful cultivation of marijuana?
  • 2.1. Penalties under HS 11358
  • 2.2. Drug treatment
  • 2.3. Re-sentencing under Proposition 64
• 3. Does a conviction affect gun rights?
• 4. Are there defenses to accusations of unlawful cultivation?
• 5. Can I get a conviction expunged?
• 6. What about cultivating medicinal marijuana?
• 7. Are there related offenses?
  • 7.1. Possession of marijuana – HS 11357
  • 7.2. Possession of weed with the intent to sell – HS 11359
  • 7.3. Selling marijuana – HS 11360

1. When is it legal to cultivate hash for recreational use?

Since Proposition 64, it has been legal to grow marijuana for recreational use provided that:

• you are aged 21 years or older, and
• you cultivate no more than six cannabis plants at a single private residence, and
• you follow any applicable local municipality ordinances.¹

Note that spouses or partners sharing a residence can cultivate no more than six plants in total. This is opposed to six plants each.²

A cultivation license is not required for the recreational growing and use of cannabis. Though unless local law permits otherwise, you must grow weed in a cultivation site that is:

• indoors or on the premises of your private property,
• in a locked space, and
• where the plants are not visible from a public place.³

The term cultivate means to:

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

any marijuana or any part thereof.⁴

2. What are the penalties for the unlawful cultivation of marijuana?

If you unlawfully cultivate marijuana in California, you may:

1. face criminal penalties under Health and Safety Code 11358,
2. receive drug treatment, and
3. petition for resentencing under Proposition 64

2.1. Penalties under HS 11358

If you are 18, 19, or 20 and grow marijuana, you can be cited for an infraction carrying $100.⁵

If you are 21 or older and grow more than six marijuana plants, you can be charged with a misdemeanor carrying up to six months in jail and/or $500.⁶

You face felony penalties for cultivating more than six plants and you:

• have a serious violent felony on your record,
• are a registered sex offender,
• have two or more prior convictions under HS 11358, or
• violate certain environmental laws in your cultivation activities.

Felony penalties are:

• imprisonment in county jail for up to three years, and/or
• a fine of up to $10,000.⁷

2.2. Drug treatment

Per Penal Code 1000 PC, you may avoid a conviction by completing drug treatment.

This is known as deferred entry of judgment (DEJ). You are eligible for DEJ if:

1. you were arrested for the cultivation of excessive weed, and
2. you are a non-violent first- or second-time offender.

2.3. Re-sentencing under Proposition 64

If you were convicted of marijuana crimes prior to Proposition 64, you may apply for resentencing or the dismissal of any charges. The court is supposed to:

• presume that you meet the criteria for resentencing, and
• grant resentencing unless it would create a risk to public safety.

3. Does a conviction affect gun rights?

A simple conviction under HS 11358 does not negate your gun rights.

4. Are there defenses to accusations of unlawful cultivation?

Our law firm has defended thousands of people charged with marijuana offenses in California. Three offenses we found to be effective in winning dismissals are:

1. There was no marijuana: Perhaps the police mistook the legal plants you were growing as marijuana.
2. The hash belonged to someone else: If there is a reasonable doubt as to you owning the plants, the charge should be dropped.
3. The police committed an unlawful search and seizure: If we convince the judge to suppress the marijuana the police unlawfully found, the D.A.’s case may be too weak to keep prosecuting.

5. Can I get a conviction expunged?

You can get a cannabis cultivation case expunged if you complete probation or jail (whichever is applicable). An expungement frees you from many of the hardships associated with a criminal conviction.⁸

6. What about cultivating medicinal marijuana?

California’s “Compassionate Use Act of 1996” (the “CUA”) applies to the medicinal use of marijuana. The Act’s provisions are set forth in Health and Safety Code 11362.5 HS.

Under the CUA, you can legally grow hash for medical use if:

• you use marijuana with doctor approval to treat a serious medical condition,
• you are a primary caregiver to such a patient, or
• you are a member of a medical marijuana collective (also known as “dispensaries”).⁹

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

• six mature plants,
• 12 immature plants, or
• with a doctor’s recommendation, a greater amount consistent with the patient’s reasonable need.¹⁰

7. Are there related offenses?

7.1. Simple possession of marijuana – HS 11357

After the legalization of marijuana in California in 2018, adults aged 21 and over can possess:

• up to one ounce of dried weed, or
• eight grams of concentrated cannabis (hashish).

Possession laws are set forth in Health and Safety Code 11357 HS.

7.2. Possession of hash with intent to sell – HS 11359

Per Health and Safety Code 11359 HS, it is a crime for:

• anyone other than a licensed dispensary,
• to possess pot with the intent to sell it.

Selling marijuana without a license (i.e., on the “black market”) violates Health and Safety Code 11360 HS.

7.3. Selling marijuana – HS 11360

Health and Safety Code 11360 HS prohibits

• selling,
• giving away,
• importing into the state, or
• transporting for sale

any amount of marijuana or concentrated cannabis (hashish) without a state license.

Note that a criminal law exception exists for:

• the transportation of weed,
• by California medical cannabis users of pot for personal use.

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group. We practice in Los Angeles, Santa Ana, Orange County, Long Beach, San Bernardino, Beverly Hills, Riverside, Pasadena, Glendale, and more.

For information on marijuana cultivation in Nevada and Colorado, please see our articles on:

• “Nevada laws for Cultivation of Marijuana in Nevada (NRS 453.3393),” and
• “Colorado Laws re Marijuana.”

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