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Health and Safety Code § 11358: Growing Marijuana

HS 11358 Growing marijuana

Health and Safety Code 11358 Growing Marijuana

Under California Health and Safety Code 11358, individuals who are 21 and older can not only use marijuana recreationally, but they can also legally cultivate and grow their own marijuana plants. These new freedoms come with restrictions and regulations built into the very laws that grant their legal status, effectively limiting the amount of marijuana that one can legally own or cultivate for personal use. These limitations are designed to prevent excessive amounts from being created and distributed. Understanding these complex laws is a feat in itself, but being aware of them is important to all consumers of marijuana. In what follows, we break these laws down for you as simply as we can.

Health and Safety Code 11358: Cultivates, Plants, Harvests, and Processes Cannabis Plants

Health and Safety Code 11358 in relevant part, “…Each person who plants, cultivates, harvests, dries, or processes cannabis plants, or any part thereof, except as otherwise provided by law…”

When is it Legal to Grow Marijuana in California?

It is legal to grow marijuana in California under H&S 11358, for person’s over the age of 21 can grow up to 6 mature marijuana plants for their own personal use and cultivation. There are some strings attached, though. You will have to follow any additional local laws and ordinances that further regulate the cultivation of marijuana plants.

Can You Grow Marijuana Outdoors in California?

Can you grow marijuana outdoors in California is a frequently asked question. In California you cannot grow marijuana outdoors, nor can it be plainly visible to the naked eye from a public place. In other words, you can’t realistically grow pot in your backyard, because if your neighbors can see it with their unaided vision, then it’s still technically illegal. Due to these restrictions, you will typically want to cultivate your marijuana indoors and somewhere that is not easily visible from the outside. Furthermore, if there is more than one person living in that residence, you are still limited to no more than 6 marijuana plants. In other words, you and your spouse cannot grow twelve plants together, because the 6 plant limit applies per residence, not per person.

What Does Cultivating Mean?

You’ll have noticed pretty quickly that all of these official legal definitions and restrictions utilize the word ‘cultivate’ when referring to growing of marijuana plants. This is because it gives a sense of consistency to the semantics that are at play in the law. However, the word ‘cultivate’ in these legal contexts is a bit more encompassing than you might usually expect. Here, to cultivate can mean any or all of the following:

  • To plant,
  • To harvest,
  • To nurture,
  • To grow,
  • To dry,
  • To water,
  • To process,
  • To care for,
  • Or to cultivate any marijuana plant or any of its parts therein.

As you can see, the definition of ‘cultivate’ is heavily expanded in these contexts for simplicity’s sake and for the sake of being able to capture more meaning into the word itself. These additional meanings of ‘cultivate’ are significant because the wording of the law is key to understanding what you may be accused of or charged with. Because of the expanded meaning, you do not even have to be physically present to ‘cultivate’ marijuana—even just being indirectly involved with its process is sufficient to be accused. This means that if you were to help your friend remove the leaves, you’d still be ‘cultivating’ marijuana.

“But, it’s Medicinal”, You Say!

This is where things get a bit more murky. Cultivating marijuana for medicinal use is different than for personal use. Even the laws used to denote them are distinct. The one that matters most here is California’s “Compassionate Use Act of 1996”, which came into law through Proposition 215; its provisions are further outlined in California Health and Safety Code 11362.5 and other subsequent sections. In a nutshell, the Compassionate Use Act gives exemptions to the following groups from the usual California laws that govern and regulate the possession and cultivation of marijuana:

  • People who need to use marijuana for treatment of a serious medical condition, as prescribed by a doctor,
  • The primary caregivers to those people, and
  • Dispensaries, or, more formally, medicinal marijuana collectives.

How Many Cannabis Plants Can a Medicinal Marijuana Patients Grow in California?

Medicinal marijuana patients and their primary caregivers can grow or cultivate 6 mature marijuana plants, 12 immature marijuana plants, or, with a doctor’s recommendation, an even greater number of plants, relative to the patients’ needs for treatment.

Violations of Marijuana Health and Safety Code 11358

Now that marijuana legalization in California has kicked in, most violations of Health and Safety Code 11358 will be considered misdemeanors. The punishments for breaking this statute may include:

  • Serving a maximum of 6 months in county jail, and/or
  • Being fined no more than $500.

You should, however, keep in mind that violating HS 11358 does have more severe consequences if:

  • You have been convicted of any violent felonies or crimes in the past,
  • You are a registered sex offender,
  • You have 2 or more previous convictions for cultivating or growing more than the legal limit of 6 marijuana plants, and/or
  • You violated other California environmental laws or ordinances while cultivating marijuana.

In these situation, you would instead be convicted of a felony and you could be sentenced up to 3 years in county jail and be fined a maximum fine of $10,000.

One Other Way to Patch Things Up: California Penal Code 1000—Pretrial Diversion

Provided that your arrest was solely for cultivating excessive amounts of marijuana for personal use, you are a non-violent first or second time offender, and/or you are a minor, you can qualify for deferred entry of judgement or a pretrial diversion (enter links to article here). In this case, you will have your sentencing put on hold while you participate and complete a state-approved drug counseling or treatment course. This procedure is due to California Penal Code 1000 and upon successfully completing it, the charges will be dismissed. Crucially, this means that the arrest and the charges will not exist on your record for most purposes, like applying for a job, school, housing, and other applications.

However, it does require that you plead guilty first and foremost, as well as meeting the eligibility requirements. Only then will the court consider and accept your case for pretrial diversion. Whether or not your case may qualify for pretrial diversion is something your lawyer will discuss with you.

Re-sentencing of California Marijuana Cases Through Prop 64

Proposition 64, now that it is fully in effect, has greatly changed the way that California handles marijuana cases as they pertain to use, possession, and cultivation. As a result of this, the law does work retroactively. In other words, if you were convicted of marijuana cultivation prior to the passing of Prop 64, you may now not be found guilty of convicting a crime at all. In fact, even if you had grown more than the legal limit of 6 marijuana plants, you would still have a reduced punishment since you would have been guilty of a misdemeanor, not a felony.

Prop 64, through Health and Safety Code 11361.8 permits those who were convicted under the old version of HS 11358 to appeal for redesignation or resentencing of their violation. For the most part, the court will grant the resentencing without much thought, unless they feel that you would pose some serious risk to public safety. Based on how much of your sentence has already been served, you might even be subject to immediate release. This also holds true for those that were convicted of a marijuana cultivation or use felony under older laws; you can apply to have your crime redesignated from a felony to a misdemeanor, or possibly even get it expunged entirely if you would not been found guilty of any crime under these new laws.

A Good Defense Doesn’t Have to Be Hard to Come By

A skilled marijuana defense lawyer will get the details of your case and use them to shield you. The following are just some of the possible defenses that may be used in your situation:

  • The marijuana was not yours.
    • If the prosecutor cannot definitively prove the marijuana belonged to you, then you are not guilty of committing a crime. For example, let’s say the marijuana was found in a communal space that is shared amongst different residents, such as a garden or backyard. If there is no other proof that you were the one to specifically plant or cultivate the marijuana then you are not guilty.
  • You were not aware there was marijuana.
    • Let’s say you go on vacation and come back to find some marijuana plants growing on your property. The prosecutor must still be able to show at the very least that you knew there was marijuana being grown on your property and that you chose not to do anything about it.
  • You did not recognize that it was marijuana.
    • If the prosecutor cannot demonstrate that you know what marijuana plants look like, then you cannot be found guilty of violating the law. For example, if your roommate plants a bunch of marijuana plants at your residence, then you wouldn’t be found guilty of breaking the law if you didn’t even know that they were marijuana plants in the first place.
  • You are a medical marijuana patient whose needs are higher than the limits set out in Prop 64 and the Compassionate Use Act.
    • This would be an affirmative defense to an accusation that you have cultivated more than the legal limit of marijuana. The burden is still on you to show that:
      • You have a serious medical condition as defined by the Compassionate Use Act
      • You have gotten a recommendation or approval from a physician to use marijuana in your treatment of the ailment and that
      • You need more than the current legal limits on marijuana cultivation can provide.
  • The marijuana was found illegally.
    • This is where your Fourth Amendment Right kicks in to protect you from unreasonable searches and seizures of your private property. If a law enforcement officer did not have a valid warrant to search through your property, nor sufficient cause to do so, then any evidence obtained from such unsanctioned searches and seizures cannot be used in a court of law.

Los Angeles Marijuana Lawyer: California Health and Safety Code 11358

f you or a loved one has been accused of violating California Health and Safety Code 11358, or any marijuana law, we invite you to give us a call at (310) 943-1171 to speak confidentially with a skilled Los Angeles marijuana defense attorney today.


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