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

Since the passage of Proposition 64 it is now legal for:

• persons 21 years of age and older,
• to grow up to six marijuana plants for recreational use.

Per HS 11358, it is an infraction if someone aged 18-20 cultivates marijuana. The crime of underage cultivation of cannabis is punishable by a maximum fine of $100.

The statute also says that:

• it is a misdemeanor if a person 18 or older,
• grows more than six hash plants.

Cultivating marijuana is punishable by:

• custody in county jail for up to six months, and/or
• a fine of up to $500.

Examples of legal cannabis growers for adult use

• a 21-year-old growing indoor cannabis in his basement.
• someone 35 years old cultivating 10 marijuana plants for recreational use.
• an older couple indoor growing eight weed plants in their home.

Defenses

A defendant can beat a charge under this statute with a legal defense. Common defenses include:

• no marijuana,
• hash belonged to someone else, and/or
• unlawful search and seizure.

In regards to medicinal marijuana, patients and their caregivers may cultivate up to:

• six mature marijuana plants,
• 12 immature plants, or
• a greater amount consistent with the patient’s reasonable needs.

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. Are there immigration consequences for an 11358 HS conviction?
• 4. Does a conviction affect gun rights?
• 5. Are there defenses to accusations of unlawful cultivation?
  • 5.1. No marijuana
  • 5.2. Hash belonged to someone else
  • 5.3. Unlawful search and seizure
• 6. Can a person get a conviction expunged?
• 7. What about cultivating medicinal marijuana?
• 8. Are there related offenses?
  • 8.1. Possession of marijuana – HS 11357
  • 8.2. Possession of weed with the intent to sell – HS 11359
  • 8.3. 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. This is provided that both of the following are true:

• the grower is aged 21 years or older, and
• he cultivates no more than six cannabis plants.¹

The following restrictions also apply:

• a cultivator must follow any applicable local municipality ordinances, and
• a person can grow no more than six plants at a single private residence.

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

Unless local law permits otherwise, a person must grow weed in a cultivation site that is:

• indoors (“indoor cultivation”) or on the premises of his private property (“home cultivation”),
• in a locked space, and
• where the plants are not visible from a public place.³

The term cultivate means to do any of the following:

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

any marijuana or any part thereof.⁴

A cultivation license is not required for the recreational growing and use of cannabis.

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

A person that unlawfully cultivates this drug 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

It is an infraction under this law if someone aged 18-20 grows weed. The crime is punishable by a maximum fine of $100.⁵

This statute also says that it is a misdemeanor if:

• a person 21 or older,
• grows more than six plants.

The crime is punishable by:

• custody in county jail for up to six months, and/or
• a fine of up to $500.

Cultivation laws call for felony penalties in certain situations. This is when people cultivate more than six plants and:

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

Felony penalties are punishable by:

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

Note that if California Assembly Bill 1725 passes, anyone 18 or older who plants, cultivates, harvests, dries, or processes will face felony charges, carrying a county jail sentence of 16 months, 2 years, or 3 years.⁶

2.2. Drug treatment

Per Penal Code 1000 PC, some people convicted of unlawful cultivation may:

• postpone any sentence imposed,
• in order to attend and complete drug treatment.

This is known as deferred entry of judgment (DEJ).

A person is eligible for DEJ if:

1. he was arrested for the cultivation of excessive weed, and
2. he is a non-violent first- or second-time offender.

2.3. Re-sentencing under Proposition 64

Cultivation laws were harsher prior to Proposition 64. Fortunately, this initiative allows people convicted under prior cultivation laws to apply for:

• resentencing, or
• the dismissal of any charges.

The court is supposed to:

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

3. Are there immigration consequences for an 11358 HS conviction?

A simple conviction under this statute will not have negative immigration consequences.

Sometimes a conviction in California can result in a non-citizen being either:

• deported, or
• marked as inadmissible.

Unlawful cultivation, however, is not one of these offenses.

4. Does a conviction affect gun rights?

A simple conviction under HS 11358 does not negate a defendant’s gun rights.

California law says that some criminal convictions will cause a defendant to lose:

• his right to own a gun, and
• his right to possess a gun.

A conviction under this statute, though, does not produce these results.

5. Are there defenses to accusations of unlawful cultivation?

A defendant can beat a charge under these California marijuana laws with a legal defense.

Three common defenses that criminal defense lawyers rely on:

1. no marijuana,
2. hash belonged to someone else, and/or
3. unlawful search and seizure.

5.1. No marijuana

HS 11358 only applies to the cultivation of marijuana. This means it is always a valid defense for a defendant to say that:

• even if he was growing something,
• the plant was not pot.

5.2. Hash belonged to someone else

An accused is only guilty under this statute if:

• he personally cultivated
• an excessive amount of weed.

He cannot be guilty for someone else’s actions. Therefore, it is a crime for a defendant to show that the drugs in question were not his.

5.3. Unlawful search and seizure

Authorities cannot conduct a search or take property without a valid search warrant. If no warrant, then they must have a legal excuse for not having one. If the police:

• gather evidence from an unlawful search and seizure,
• then that evidence can get excluded from a criminal case.

This means that any charges in the case could get reduced or even dismissed.

6. Can a person get a conviction expunged?

A person convicted under cannabis cultivation laws can get an expungement.

This is true, however, only provided that the defendant completes:

• probation, or
• a jail term (whichever is applicable).

An expungement frees a defendant from many of the hardships associated with a criminal conviction.⁸

7. 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, the following people can legally grow hash for medical use:

• people who use marijuana with doctor approval to treat a serious medical condition,
• primary caregivers to such patients, and
• members of medical marijuana collectives (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

Note that:

• if a person is charged under HS 11358,
• but is really exempt from the law under the CUA,
• then the person has the burden to prove the reason for the exemption in order to escape prosecution.¹¹

8. Are there related offenses?

There are three crimes related to the unlawful cultivation of pot. These are:

1. simple possession of marijuana – HS 11357,
2. possession of hash with intent to sell – HS 11359, and
3. selling marijuana – HS 11360.

8.1. Simple possession of marijuana – HS 11357

After the legalization of marijuana in California in 2018, adults age 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.

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

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

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

People who sell marijuana without a license (i.e., on the “black market”) violate Health and Safety Code 11360 HS.

8.3. 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 their 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 for a free consultation. Our law office creates attorney-client relationships throughout the state, including Los Angeles, Santa Ana, Orange County, Long Beach, San Bernardino, Beverly Hills, Riverside, Pasadena, Glendale, and more.

People interested in joining the cannabis industry should go to California’s Department of Cannabis Control for regulatory information about large-scale cultivation facilities, outdoor cultivation, and cannabis production. The site also has information on selling edibles and THC products, pesticides, zoning for growing operations, labeling, public health, and environmental impacts (including on watersheds), and other topics related to the cannabis business.

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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