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California Health and Safety Code Section 11358 HSC: Cultivating Marijuana

New laws are governing the cultivation, use, and sale of marijuana in California. Proposition 64/Adult Use of Marijuana Act was approved by voters on November 8, 2016. The act legalized the possession and use of small amounts of marijuana for adults who are 21 years or older as of January 1, 2018. The act also allows licensed businesses to sell marijuana. Proposition 64 has opened a new chapter of marijuana laws in California. Defendants who were sentenced under the previous regulations for marijuana-related offenses can now seek re-sentencing under the new law. Proposition 64 lightens the penalties for marijuana-related crimes.

What is in the new law?

Under the new California recreational marijuana law, people aged 21 and above are permitted to cultivate up to six plants of marijuana. The marijuana must be for personal use. The plants should be grown in secured areas indoors. They can also be grown in secured areas outdoors where it is legally permissible. Cultivating more than six plants of marijuana is a crime under Health and Safety Code 11357.

Penalties for unlawful cultivation of marijuana under Health and Safety Code 11357

Unlawful cultivation of marijuana is treated as a misdemeanor that carries a penalty of up to 6 months in a county jail, a fine of up to $500, or both. However, it will be treated as a felony for the following groups.

  • Registered sex offenders
  • People who have committed severe violent felonies in the past
  • People who have twice or more been convicted of growing more than six marijuana plants
  • People who violate specific California environmental laws due to marijuana cultivation

On top of that, it is an infraction for people below the age of 21 to grow marijuana plants.

A drug rehabilitation program may be prescribed in lieu of a jail term if:

  • The defendant is a non-violent first-time or second-time offender
  • If the charges brought against the defendant are limited to cultivation of marijuana for personal use

Cultivation of medical marijuana in California

California medical marijuana laws have different regulations for people growing marijuana for medicinal purposes. The Compassionate Use Act of 1996 exempts certain groups of people from the laws governing the possession and use of marijuana in California. These groups of people include

  • People who use marijuana with a doctor‘s approval to treat serious conditions
  • Members of marijuana dispensaries
  • People who are the primary caregivers of patients with a doctor’s approval to use marijuana to treat serious conditions.

Persons growing marijuana for medical purposes in California are allowed to:

  • Cultivate up to 6 mature marijuana plants
  • Cultivate up to 12 immature marijuana plants
  • Cultivate a greater amount with a doctor’s recommendation. The unmount recommended should be consistent with the patient’s reasonable needs

Elements of the crime of illegal cultivation of marijuana in California

Cultivating marijuana includes

  • Possession of marijuana seeds
  • Planting and tending to marijuana in soil
  • Drying and processing of harvested marijuana

The defendant will be found guilty of illegal cultivation of marijuana if the prosecutor proves that:

  • He/she unlawfully planted, processed, dried, or processed more than six marijuana plants
  • He/she knew that the substance they cultivated was marijuana.

A person can be convicted of abetting unlawful cultivation of marijuana if they were aware of it and failed to prevent it. For example, if a landowner is aware that one of his tenants is unlawfully cultivating marijuana, and he/she does not stop them, he/she may be guilty of aiding illegal cultivation of marijuana.

Possible defenses to unlawful cultivation of Marijuana

 

The defendant did not know it is marijuana

It is possible to have marijuana in your garden yet you are not aware of its existence. You might also have been aware of the presence of the plant, but you don’t know how marijuana looks like. With that said, for you to be found guilty of unlawful cultivation of marijuana, the prosecutor must prove that you knew the plant in your garden was marijuana.

The marijuana didn’t belong to the defendant.

For example, if the marijuana was discovered in a communal garden in the apartment you reside, you can argue that the you did not cultivate the marijuana.

The US constitution shields citizens from needless searches. If you prove that the police discovered the marijuana during an illegal search, the case can be dropped.

The defendant is a medical marijuana user under the  Compassionate Use Act

The  Compassionate Use Act allows the cultivation of more than six marijuana plants for medical purposes. However, to use this act as a defense, you should prove that:

  • You have a serious medical condition
  • A doctor approved the use of marijuana for your treatment
  • The recommending doctor confirmed you need more marijuana than allowed under Proposition 64

Resentencing under Proposition 64

Proposition 64 allows people convicted under the defunct Health and Safety Code 11358 HS to apply for resentencing. Considering that Proposition 64 is more lenient on marijuana-related offenses than the previous laws, the sentence might reduce considerably. For example, what was a felony in the previous code can be a misdemeanor under Proposition 64.

If you are charged with marijuana-related offenses such as possession or cultivation of marijuana in California, the best thing to do is consult an accomplished California criminal defense attorney. There are multiple ways to approach a marijuana cultivation case. A seasoned California criminal defense attorney will know the best option to exploit depending on the unique circumstance of your case.


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2021-03-12
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I was hesitant to hire the Spodek Law Group. I read reviews and knew they have a great reputation. However, I thought I would spend money and not see or speak to my attorney. From the beginning to end of my case Todd and the entire staff were available and willing to help. We worked towards and end result that was way above my expectation and Todd delivered. I am forever grateful for patience and long days and night spent working on my case. Thanks Todd and the entire team!
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My attorney at Spodek was Abigail. She was very knowledgeable and helpful with all my questions and concerns, as well as responsive. Her fees are affordable and Abigail took the time to make sure I understood everything relating to my case. I highly recommend Abigail and will request her services in the future.
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debabrata chakraborty
2021-03-03
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Todd A Spodek is the experienced and best criminal lawyer at USA. He is very professional and always respond on time. Alex also very cooperative and always help me. They took care me and my problem like family member. I am 100% satisfied for their professional service. My result was unexpected and amazing. They dismissed my case. I am really grateful to them. I will recommend you to go there if you want to solve your problem. I wish all the best for them.
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Truly appreciate the work the guys did!. Exceptional team & I know they care about each and everyone of their clients. I am super thankful to be referred to Spodek Law Group and I am grateful Todd & Alex were able to work diligently to achieve an outcome I am pleased with. Despite COVID they stayed on top of things and kept me informed every step of the way. Very thankful.
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Mike Moroff
2021-02-26
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I'm very satisfied with the services rendered by Todd, Alex and Mary Lou. I whole heartedly recommend Spodek Law Group . I've worked with and have retained other attorneys in the past with Todd's firm being the cream of the crop for many reasons. A very serious legal matter was resolved after a year's hard work and effort. Todd expertly guided me through the process and was able to navigate and make the good journey bearable as well as successful. Mary Lou initially provided excellent assistance before referring my case to Todd. Alex's support was effective and timely. The customer portal (MyCase) is an invaluable communication tool that also kept track of my case. Various aspects of my case were explained and there were several options provided but I made the final decision of how the case would be handled. The legal fee was reasonable considering the effort and amount of work plus it was a flat fee regardless of the length of time required to conclude my case. Todd made himself available to me and we had many scheduled meetings to go over the progress and to discuss the next steps. I felt more confident after many discussions with him. You will not go wrong choosing Spodek Law Group for legal matters.
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Josh Katz
2021-02-24
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Being that it was the first time that I was in need of an attorney, I was afraid and hesitant and knew I needed the absolute best. It is beyond understood why Spodek Law Group has a reputation of being the top, if not the best law firm in New York. Alex and Abigail were there every step of the way even at the most unconvenient hours. I could not have asked for more. They are extremely good at what they do and they delivered much much more than just winning my case. A big thank you to Alex and Abigail for all the guidance and counseling and their upmost loyal support that extended far more than just legally. If you need the absolute best than don't hesitate to hire Spodek Law Firm.
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L.C.
2021-02-24
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I cannot tell you how thankful I am to Todd and Alex for their hard work and dedication to my case. I had never been in any trouble before but I had an unfortunate event occur and in the midst of COVID-19 at that therefore I knew I needed a team that was dedicated to my success. Today- my case has been finalized and I’m walking away with no record and can continue life as a mother and a Grad student worry free. I cannot express enough gratitude for their assistance.
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2021-02-23
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I received a summons and called Spodek law group for a free consultation. Alex took my call and was very quick and responsive. He was available anytime through multiple platforms and very reassuring when needed. They are extremely organized and thorough. They got my case dismissed! I’m very grateful. Thank you Alex and Todd!

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