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Health & Safety Code 11358 HS – California Marijuana Cultivation Laws

Updated September 27, 2020

Health and Safety Code 11358 HS is the California statute that defines the crime of illegal cultivation of marijuana. A conviction is a misdemeanor punishable by up to 6 months in county jail.

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 is punishable by a maximum fine of $100.

The statute also says that:

  • it is a misdemeanor if a person 21 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

  • a 20-year-old growing pot in his basement.
  • someone 35 years old cultivating 10 marijuana plants for recreational use.
  • an older couple 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?

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 ordinances, and
  • a person can grow no more than six plants at a single private residence.
  • spouses or partners sharing a residence,
  • can cultivate no more than six plants total.

This is opposed to six plants each. 2

Unless local law permits otherwise, a person must grow weed:

  • indoors or on the premises of his private property,
  • 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

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. 6

Felony penalties are punishable by:

  • 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, some people convicted of unlawful cultivation may:

  • post-pone 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?

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:

The 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 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 medicinal 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
  • 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

  • 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

  • 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 marijuana 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.

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

Legal References:
  1. California Health and Safety Code 11358 HS.
  2. California Health and Safety Code section 11362.2 HS.
  3. See same.
  4. California Health and Safety Code 11358 HS.
  5. See same.
  6. See same.
  7. See same.
  8. California Penal Code 1203.4 PC.
  9. California Health and Safety Code 11362.5d HS.
  10. California Health and Safety Code 11362.77. As to “reasonable need,” see also People v. Trippet (1997) 56 Cal.App.4th 1532.
  11. People v.Mentch (2008) 45 Cal.4th 274.

California Health and Safety Code Blog Posts:

Updated September 27, 2020 Health and Safety Code 11358 HS is the California statute that defines the crime of illegal cultivation of marijuana. A conviction is a misdemeanor punishable by up to 6 months in county jail. Since the passage of Proposition 64 it is now legal for: persons 21 years of age and older, .

Updated September 27, 2020 Health and Safety Code 11358 HS is the California statute that defines the crime of illegal cultivation of marijuana. A conviction is a misdemeanor punishable by up to 6 months in county jail. Since the passage of Proposition 64 it is now legal for: persons 21 years of age and older, .

Updated September 27, 2020 Health and Safety Code 11358 HS is the California statute that defines the crime of illegal cultivation of marijuana. A conviction is a misdemeanor punishable by up to 6 months in county jail. Since the passage of Proposition 64 it is now legal for: persons 21 years of age and older, .

Updated September 27, 2020 Health and Safety Code 11358 HS is the California statute that defines the crime of illegal cultivation of marijuana. A conviction is a misdemeanor punishable by up to 6 months in county jail. Since the passage of Proposition 64 it is now legal for: persons 21 years of age and older, .

Health and Safety Code 11358 HS is the California statute that punishes the illegal cultivation of marijuana.

Marijuana: 6 things to watch for in California in 2020

From key court cases to clearing criminal records, it’ll be another big year for cannabis policy.

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As California enters its third year of legal recreational cannabis sales, many expect upcoming new laws, high-profile court cases and major criminal justice reforms to shake up the industry.

Marijuana advocates are wary after a challenging second year, but most also are hopeful that changes in 2020 will put them in a better position a year from now.

“We always knew it would be an uphill battle,” said Robert Flannery of Dr. Robb Farms, a cannabis cultivation company based in Desert Hot Springs. “But there are very few people who are not generally optimistic about the cannabis industry.”

Here are six things for Californians to watch for when it comes to cannabis in 2020:

1) Deliveries go to court: In April of 2019, one county and 24 cities sued the California Bureau of Cannabis Control over a rule that permits marijuana deliveries throughout the state, even in communities that don’t allow cannabis businesses. That case, pitting advocates for access to legal cannabis against local governments fighting for control over the industry, is finally due to go to trial in Fresno County Superior Court starting — no joke — April 20.

Another lawsuit on the docket in 2020 tackles the same issue at a local level. Atty. Gen. Xavier Becerra in November joined a suit filed by East of Eden Cannabis Co. after Santa Cruz County banned marijuana deliveries by companies it hasn’t licensed. The next hearing in that case is scheduled for Thursday, Jan. 2.

2) Legislative changes: Three new marijuana laws take effect Wednesday, Jan. 1. Senate Bill 34 will let licensed businesses donate products for medical marijuana patients in need. Assembly Bill 37 will let cannabis operators deduct expenses, a standard business practice that’s been blocked due to federal law. And Assembly Bill 1810 makes it illegal for passengers in limos, taxis and other commercial vehicles to consume cannabis (though they can still drink alcohol), effectively ending any hopes of cannabis party buses. Also on Wednesday, mandated industry tax hikes will hit an already struggling industry.

Businesses say more legislative changes are needed if they stand a chance of competing against the thriving illicit market, with wholesale cannabis prices expected to fall in the coming year. There are calls for a potential overhaul to the tax structure. And, with shops allowed in just 20% of California cities, there’s talk of trying to force cities with residents that supported Prop. 64 to allow marijuana businesses in their borders. Also, in the wake of a vaping-related health crisis that in 2019 killed at least 54 people and left another 2,506 with serious lung injuries, new state or federal laws governing the vaping sector are expected.

3) Clearing the record: Prop. 64 retroactively reduced penalties for just about every crime involving cannabis, downgrading marijuana sales without a license, for example, from a felony to a misdemeanor. But data shows only a fraction of the people eligible to petition the courts to have those crimes reduced or cleared from their records since the law passed in November 2016 have done so — presumably due to the time, cost and expertise involved.

The legislature in September 2018 approved Assembly Bill 1793, which requires the state to proactively track down and process all marijuana cases eligible for expungement. The bill gave local prosecutors until July 1, 2020 to process eligible cases, and it’s expected that several hundred thousand people could have marijuana cases downgraded or dropped from their records. That could make them newly eligible for jobs, housing and other benefits often denied to convicted felons.

4) Weedmaps cleanup: The Irvine-based online marijuana shop directory Weedmaps has continued to promote illicit retailers even after California’s Bureau of Cannabis Control sent Weedmaps a cease-and-desist letter in February 2018. And it’s still going even though Gov. Gavin Newsom signed a bill, effective July 1, that lets regulators fine unlicensed parties up to $30,000 each day that they’re in violation of state cannabis laws.

Weedmaps said in September that it would stop advertising illicit businesses by the end of the year. As of Friday, Dec. 27, ads for cannabis shops in cities that have banned retail were still easy to find on the website. If the illicit ads don’t come down in the next week, licensed businesses expect to see major fines handed down by the state, with calls for tougher enforcement across the industry in the year to come. And if the ads do come down, the industry will have a real-time test in 2020 of just how important Weedmaps was in bolstering the illicit market.

5) More states eye legalization: Licensed cannabis shops will open for the first time in Illinois starting Wednesday, Jan. 1, making it the 11th state to legalize recreational marijuana and the first to do so through the legislature. But in the coming year as many as six more states are expected to consider legalizing cannabis through the legislature, led by Vermont (which legalized cannabis possession in 2018), New Mexico and New York. And another 12 states could vote in November on legal cannabis, including Arizona, New Jersey, Ohio and Florida.

That could give California’s legal industry more clout as it pushes for federal reforms in 2020.

6) Federal changes afoot: September saw the first ever federal vote on a stand-alone cannabis bill, when the House of Representatives voted to let federally-insured banks work with cannabis businesses in states that have legalized marijuana. While that SAFE Banking Act still faces the Republican-controlled Senate, observers are predicting some version of the bill will pass in 2020.

A bill that would end federal marijuana prohibition entirely — which would open up interstate cannabis commerce and public markets — also passed a congressional panel for the first time in November, when the House Judiciary Committee approved the MORE Act. That bill still has to pass the full House and the Senate, with success in 2020 looking less likely than the banking bill. But federal cannabis legalization could come through another route.

Most Democratic presidential candidates are promising to legalize cannabis nationwide if elected in November, a platform spearheaded by New Jersey Sen. Cory Booker and Vermont Sen. Bernie Sanders. However, the current front-runner — former Vice President Joe Biden — isn’t among them, though he’s recently come out in support of decriminalizing marijuana.

Marijuana: 6 things to watch for in California in 2020 From key court cases to clearing criminal records, it’ll be another big year for cannabis policy. Share this: Click to share on