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California Health & Safety Code 11358: Marijuana Cultivation

San Bernardino Marijuana Cultivation Defense Lawyers

California law makes it a felony to cultivate marijuana. Health and Safety Code 11358 HS provides that "Any individual who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment in the state prison."

As a general rule, the cultivation of even one marijuana plant in California subjects a person to HS 11358. The penalty for one convicted of marijuana cultivation is up to 3 years in state prison. If a large number of plants are discovered, the person may be charged with HS 11359, possession of marijuana with intent to sell.

Marijuana Cultivation for Legitimate Medical Purposes

California’s medical marijuana law (or Compassionate Use Act of 1996) under Proposition 215 can be a defense to a Health & Safety Code 11358 cultivation charge. Under SB 420, a person with a County-issued medical marijuana card may have up to 6 mature and 12 immature plants, and up to 8 ounces of dried cannabis.

While all counties must allow patients to cultivate at least this amount, some California counties authorize a medical marijuana patient to grow and possess even more. San Diego County, for example, allows a patient up to 1 pound of cannabis, and up to 24 indoor plants. San Bernardino County, which previously enforced a zero-tolerance policy towards medical marijuana, only allows the state mandate of 6 mature plants.

Personal Use vs Possession for Sale in Marijuana Cultivation Cases

The key issue in many Health and Safety Code 11358 HS cases is whether the plants were being cultivated for personal use or for sale. The prosecution will often charge the suspect with possession of marijuana for sale. The defense will counter that the person was cultivating the plants for his/her personal consumption. This distinction greatly affects the level of charges and ultimate penalties.

Often times, prosecution experts and defense experts will come to court to testify as to whether the circumstances of the marijuana cultivation are more consistent with growing for personal use or growing for sales. Some of the factors they will point to include:

• the number of plants,
• the proportion of the plants that is truly usable or sellable marijuana bud (usually less than 10% of the total plant weight),
• the suspect’s normal level of personal consumption,
• the suspect’s financial records (whether there is unexplained money, assets or valuables on hand),
• the presence of other indictors of marijuana sales activity (such as packaging materials, scales, written records or high levels of foot traffic at the location)

Fighting a Marijuana Cultivation Charge

• authorized cultivation for use as medicinal marijuana,
• growing the marijuana for personal use rather than for sales,
• illegal searches and seizures by the police,
• invalid search warrants, and
• insufficient evidence tying the suspect to the plants or to any marijuana sales activity

If you are being accused of cultivating or selling marijuana, we invite you to contact us to discuss your case and what can be done to fight the charges on your behalf.

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