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Marijuana Cultivation Laws in California

Posted in Criminal Defense,Drug FAQ'S on July 28, 2019

In November 2016, California voters approved a marijuana legalization measure. Proposition 64 had some limits. It only applies to people over 21 who possess small amounts of marijuana. Moreover, marijuana is still illegal under federal law.

Nevertheless, Proposition 64 did legalize marijuana for personal use, in most situations. This measure covered not only refined marijuana, but also up to six marijuana plants. So, marijuana cultivation for personal purposes is legal in California as well.

However, it is illegal to have more than six plants. It is also illegal to grow marijuana plants outside, at least in most cases. And, the penalties under California’s marijuana law are rather severe. A local criminal defense attorney can help reduce or eliminate these negative consequences.

Elements of the Offense

The law not only places indoor/outdoor restrictions on marijuana cultivation. It also broadly defines “cultivate” to include any of the following:

  • Plant,
  • Tend,
  • Harvest,
  • Dry, or
  • Process.

Significantly, cultivation charges may hold up in court even if the defendant did not physically possess the plants. For example, if Alphonse helped Alex trim the leaves from marijuana plants so Alex could smoke them, if Alex had more than six plants or otherwise violated the law, Alphonse could be charged with. And convicted of, illegal marijuana cultivation.

Additionally, the six plant limit is per residence and not per person. So, if Alex and Alfonse were roommates, their shared dwelling could only have six plants, and not twelve.

A different limit applies to medical marijuana cultivation. Growers may cultivate six mature plants, twelve immature ones, or as many as is reasonably consistent with the patient’s medical need.

Health and Safety Code Section 11358 violations are normally misdemeanors, but prosecutors could elevate charges to a felony in many cases.

Marijuana Cultivation Defenses

The larger medical marijuana allowance gives rise to an interesting possible defense. If the defendant was a caregiver for a medical marijuana patient, the higher limit arguably applies.

Prosecutors must also establish the basic elements of the offense, such as the marijuana belonged to someone else and the defendant did not have permission to touch it, the defendant did not know the marijuana was at the residence, or the defendant did not know the plant was marijuana.

Those defenses may sound a bit far-fetched, but they actually come up rather often. If Alex grew the marijuana in a backyard shed, there’s a good chance Alphonse would not know it was there. And, marijuana usually does not acquire is a distinctive odor until someone burns it.

Additionally, police officers must have a valid warrant to enter the premises, or a search warrant exception must apply. Some common exceptions include consent to search and exigent circumstances. For example, if officers respond to a disturbance call at Alex’s house, they may enter the dwelling without a warrant to make sure the occupants are unharmed.

Probable Outcomes in Drug Possession Matters

Many marijuana and other drug possession cases may be eligible for the Penal Code Section 1000 drug diversion program. Program specifications vary slightly among different jurisdictions, but the core requirements are the same:

  • Nonviolent first or second-time offender, and
  • Charges include simple possession only.

If the defendant successfully completes the drug diversion program, prosecutors normally dismiss the case. So, the defendant has no criminal record as a result of this arrest.

Contact a Drug Manufacturing Lawyer

Even in the post-Prop 64 world, marijuana cultivation could result in criminal charges. For a free consultation with an experienced drug manufacturing attorney in Riverside, contact Graham Donath Law Offices, APC. After-hours visits are available.