To make matters even more confusing, different localities have put into place their own limits on cultivating marijuana, limiting how much medical marijuana someone can grow, and where it can be grown. Many towns and cities here in Alameda County and Contra Costa County have enacted their own growing limits. Some localities have outright bans on outdoor marijuana cultivation.
Defenses will depend on the individual facts and circumstances of each case, and may depend on how much marijuana was involved, and if the defendant is a qualified patient or primary caregiver under the state’s medical marijuana laws. However, even when cities try and ban any marijuana cultivation, Prop 64 makes it clear that adults over the age of 21 can grow up to 6 plants for their use. Medical marijuana patients may be able to grow even more.
Being a qualified patient or primary caregiver can be an affirmative defense to many marijuana cultivation charges. It may also be a defense if the plants are grown on someone’s property and they were unaware of the pot being grown. Charges can also be reduced to a charge of possession, or deferred through the diversion program.
Cultivation of more than 6 plants can be charged with a felony if they are registered sex offenders, have multiple prior convictions for the cultivation of marijuana, have prior convictions for certain environmental, health and safety, and fish and game code violations.
Medical Marijuana Plant Limits by Locality
Underage growers or individuals who grow more than 6 plants can be charged with a violation of California Health and Safety Code 11358. However, for individuals with prior criminal or environmental code violations may be charged with a felony if they grow more than 6 plants.
Anyone who plants, cultivates, harvests, dries or processes more than 6 living plants shall be punished by imprisonment in a county jail for up to 6 months, and face a fine of up to $500. Anyone under the age of 21 but over 18 who plants, cultivates, harvest, dries or processes not more than 6 living plants shall be punished by imprisonment in a county jail for up to 6 months, and face a fine of up to $500.
Prop. 215, which legalized medical marijuana, has a different plant limit than the recommended Senate Bill guidelines. Even these limits can vary by city or county. Under Prop. 215, patients are entitled to whatever amount of marijuana is necessary for their personal use. However, the police may still arrest someone for exceeding the state guidelines. Patients can’t be prosecuted simply for exceeding the limits, however, they may still be arrested and have to defend themselves.
Marijuana Cultivation Defenses
After Proposition 64, adults aged 21 and above can grow up to 6 plants for personal use. Six plants is the limit, regardless of their stage of growth or whether or not they are flowering. Plants need to be kept on your own property and should be kept out of sight from passersby. Growing marijuana could be further restricted by local ordinance, with some localities restricting cultivation to indoors only.
In many cases, an overzealous prosecutor may try and get a defendant to plead guilty to certain charges in exchange for dropping other, more serious drug charges. However, before you plead guilty to any criminal charges, make sure you understand your rights to growing marijuana in California. Talk to an East Bay lawyer with experience defending people charged with cultivation of marijuana.
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
Under California’s marijuana legalization law, you can only sell commercial cannabis as part of the legal cannabis industry if you have obtained a license to do so. These licenses will be issued to cannabis businesses by a newly-created Bureau of Marijuana Control (a.k.a. Bureau of Cannabis Control).
Restrictions on sale and transport
“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
10. What are the immigration consequences?
Punishment for illegal possession of marijuana is as set out in the chart below.
Medical marijuana dispensaries
For most adult defendants, HS 11359 possession for sale without a license is a misdemeanor, carrying the following penalties:
4. What are the penalties for selling, gifting, transporting, or importing marijuana?
Additionally, people under 21 may use and cultivate medical marijuana with a doctor’s recommendation (and, if they are under 18, the consent of a parent).
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 with an ID card, or sell it to them “at cost.”
Cultivation laws call for felony penalties in certain situations. This is when people cultivate more than six plants and:
5. Are there defenses to accusations of unlawful cultivation?
Note that a criminal law exception exists for:
A simple conviction under this statute will not have negative immigration consequences.
2.1. Penalties under HS 11358
Per Penal Code 1000 PC, some people convicted of unlawful cultivation may: