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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.

The Biggest Threat to Growing Marijuana in California Used to Be the Law. Now, it’s Climate Change

Having survived a DEA raid, the co-founder of the first medicinal cannabis collective plots a comeback in the worst fire season in California history.

Valerie Leveroni Corral surveys medical cannabis plants from all over the world at one of WAMM Phytotherapies’ gardens, cultivated at a former Boy Scout Camp in unincorporated Santa Cruz County. Credit: Evelyn Nieves/InsideClimate News

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Valerie Leveroni Corral spent days after lightning set the Santa Cruz Mountains on fire not knowing if a cannabis crop her organization grows for the sick and dying had survived.

The one-acre crop sits on the site of a former Boy Scout campgrounds, off a rutted road so deep in the woods of unincorporated south Santa Cruz County that only fire could find it without a guide. In fact, the CZU Lightning Complex fire came close but skipped the woods, a lucky fluke.

The conflagration—part of the explosion of lightning-sparked wildfires in mid-August that kicked off the earliest, worst fire season in California history—blazed a devastating trail. It scorched 85,509 acres in San Mateo and Santa Cruz counties and destroyed 1,490 structures, including 925 single family homes. Among them was the property Corral called home until three years ago, a farm that had become part of local history and lore.

In 1993, Corral was a co-founder, with her then husband, Mike Corral , of the nation’s first medicinal cannabis collective, the Wo/Men’s Alliance for Medical Marijuana (WAMM). They grew marijuana organically in their backyard as medicine for WAMM members, people of all ages and walks of life who had incurable conditions and terminal illnesses.

Members received cannabis for free or in trade for working the garden. (Most donated their time, care and money). When federal Drug Enforcement Agency officials raided the farm and arrested the Corrals in 2002, an army of sick people rallied to defend them. So did Santa Cruz officials. They sued the DEA and the Department of Justice for raiding a respected community organization sanctioned by California’s 1996 landmark law legalizing medical marijuana, Proposition 215, which Valerie Corral helped draft. A Federal judge ordered the DEA to let WAMM be.

The Corrals divorced in 2018 and had to sell the property, a blow to the collective. The farm was a joyful gathering place. More than two dozen WAMM members had their cremated remains buried on the land. These days, everything is different.

California’s law legalizing recreational marijuana, Proposition 64, which went into effect in January 2018, did what the DEA could not: It dismantled the collective. When its landlord’s mortgage holder, Wells Fargo, refused to allow it to obtain a state license, WAMM lost its headquarters, where it had held weekly meetings and dispensed cannabis to members for 17 years. Corral said the bank didn’t want a cannabis business there because the drug remains illegal under Federal law.

The collective’s cannabis is now cultivated in collaboration with professional growers in two plots, 40 minutes away from each other, because the law restricts where cannabis can be grown and made available, and affordable land that meets the regulations is scarce. The collective rented an office in midtown Santa Cruz months ago, but it is still months away from opening, because it has not yet obtained all the necessary legal paperwork under the new law to be able to dispense cannabis products to its members.

At a time when surviving annihilation by wildfire passes for good fortune, the collective is thankful for its lucky break. The original farm would have been lost to the CZU Lightning Complex fire, but the two new plots are thriving.

On a rare day when smoky skies turned clear blue, Corral, a small, youthful 68-year-old with dark red, chin-length hair, visited the plot at the former Boy Scout camp, now owned by a WAMM board member.

WAMM has always farmed organically, paying attention to soil health long before climate change made healthy soil practices like composting and planting cover crops fundamental to environmentally-friendly land stewardship.The cannabis plants, thick and conical, looked like young Christmas trees. Corral, excited to see the healthy plot, began envisioning new ways the farm could grow.

“If all goes well,” she said, “We’re going to be a lot more hands on here. I’d like to hire the differently abled for the farm. We just have to get up and running again.”

Unintended Consequences

Corral’s travails with Proposition 64, a law she opposed, has resonated with other growers—recreational and medicinal—across the state. Last year, the state’s Cannabis Advisory Committee warned Gov. Gavin Newsom and state legislators that the market was fraught with onerous rules, high taxes and local permitting issues.

Legalizing marijuana has not only stalled medicinal cannabis growers like Corral, whose collective includes cancer patients, it has also driven new and veteran growers underground, a trend with serious environmental repercussions.

Some have turned to indoor pot grows, operations that require enormous amounts of electricity for light fixtures, dehumifiders, heating and ventilation. Researchers estimate that indoor grow operations use about eight times the amount of energy per square-foot as do average commercial buildings. Other growers have gone deeper into forested areas than ever, cutting down trees to create plots that pose risks to humans and ecosystems.

By some estimates, at least 80 percent of the marijuana grown and sold in California is sold on the black market. In 2019, California sold $3.1 billion in legal cannabis, making it the largest market for legal cannabis in the world. It also sold an estimated $8.7 billion in unlicensed pot. Taxes from legal mariuana sales were supposed to stuff the state coffers with $1 billion a year. They have averaged less than half that amount.

In June, Newsom blamed the pandemic lockdowns for declining tax revenues (despite allowing marijuana dispensaries to remain open). His revised budget forecasts of $443 million from the state’s coffers this year and $435 million next year.

Not long before marijuana became legal, the biggest threat to growing cannabis outdoors was the law. Now it’s a constellation of climate change-fueled weather disasters: drought, record heat and fires so big they take weeks and thousands of firefighters to extinguish.

The August Complex in Northern California is the latest largest fire in state history Burning more than one million acres as of Oct. 5. It has threatened the fabled cannabis mecca known as the Emerald Triangle: three counties—Mendocino, Humboldt and Trinity—with the largest concentration of marijuana farms in the country. In tiny towns shrouded by forests, pot growers have stared down evacuation orders as if they were bar room dares. Despite warnings that firefighters would not risk their lives for people who refused to leave when ordered, most growers, law enforcement officials said, stayed to defend their crops from fire and thieves.

Marijuana Laws Evolve, Stigmas Remain

In 2009, Corral watched in awe as firefighters defended the WAMM farm from a wildfire yards away. She did not consider the fire an augur of things to come. The challenges to medical marijuana were always about public perceptions. Until widespread research is allowed and the DEA removes mariuana from its classification as a Schedule 1 drug, “with no current medical treatment use” and “a high potential for abuse,” Corral accepts that millions of Americans consider it a dangerous street narcotic. When Proposition 64 passed, 75 percent of California’s cities banned cannabis dispensaries outright. Experience has taught Corral that powerful testimonies like her own are crucial to showing people that cannabis can be other than a stoner’s drug of choice.

“I still thank cannabis,” she said, “for basically saving my life.”

In 1973, Corral was involved in a freak car accident that left her with a traumatic brain injury. Pharmaceuticals failed to control grand mal seizures despite many different drugs and doses. Corral turned to marijuana after her then husband read a research report that found it controlled seizures in mice.

To her profound surprise, it worked, reducing her seizures from many times a day to infrequent. Corral and her husband began growing cannabis and eventually giving it away to people suffering from AIDS and other serious diseases. That was the beginning of WAMM.

The medical establishment is divided on medicinal cannabis. The American Medical Association has lobbied for rescheduling marijuana to facilitate research but has stopped short of declaring cannabis beneficial, stating that the limited rigorous scientific studies are “insufficient to satisfy the current standards for a prescription drug product.”

The American Nurses Association, however, in 2016 issued a statement declaring its belief in the benefits of medical cannabis. Obviously WAMM members agree with the latter.

Corral is considering one of the leading experts on medical cannabis. Like Jane Goodall with her wild chimpanzees, Corral has become a leading expert on medicinal cannabis through years—decades—of observation and experience. She knows which strains and delivery methods (tinctures, oils, candies, baked goods) work for different ailments. She also knows when cannabis will not perform miracles. (“It’s not a panacea,” she said.)

WAMM members have ranged in age from babies—the youngest three-months-old—to people in their 90s. Their ailments have ranged from seizure disorders to glaucoma to every type of cancer and many disabilities. To hear WAMM members testify to the positive changes in their lives after becoming medical marljuana patients is eye-opening.

Everyone who works for WAMM has a story. Marina Bleich, who is helping to organize the new headquarters, found WAMM after searching for treatment for her daughter, who suffers from Dravet’s Syndrome, a rare, virulent form of epilepsy that manifested at 11 months.

Bleich’s daughter had endured tortuous hospitalizations and at least 19 different anti-seizure drugs. Nothing helped. Her daughter was having hundreds of seizures a month. When her daughter was three-years-old, a Santa Cruz doctor suggested she get in touch with Corral, saying he was unfamiliar with how to administer cannabis to pediatric patients.

“He called her up while I was in his office,” Bleich said, referring to Corral. “And Valerie said, ‘Bring her over.’ My daughter did have a seizure on the way. I carried her into Valerie’s office.”

Corral recommended a marijuana extract, a CBD oil for her daughter’s treatment. “Her seizure activity tremendously dropped,” Bleich said.

Now 10, her daughter has seizures about every 15 days, lasting only a minute or two in duration, Bleich said. It’s a far cry from the hundreds of seizures, lasting for 15 to 20 minutes, that she suffered as a baby.

Over the years, Bleich and Corral have experimented with different forms of cannabis to find what offers the best relief. On private Facebook groups for families of children with Dravet’s Syndrome, she said, she shares her experiences with cannabis with parents afraid to try it.

“I wish I had had the recommendation from the get go.,” Bleich said.

Before the pandemic, WAMM members had weekly get-togethers to discuss their lives—and often, impending deaths.

Corral now checks in with members by phone or by Zoom or in person. “The isolation is not healthy for our members,” she said.

The collective’s new, full name is WAMM Phytotherapies to reflect additional alternative health practices, like acupuncture, that the collective plans to offer.

Despite thte many challenges of the post-Covid world, Corral wants to expand “the WAMM model” to different communities. “They would develop their organization based on their community’s needs and interests, for whatever works for them,” she said. “There are a lot of ways we can help.”

Evelyn Nieves

Reporter, San Francisco

Evelyn Nieves is a former staff writer for the New York Times, The Washington Post and The Associated Press.

The Biggest Threat to Growing Marijuana in California Used to Be the Law. Now, it’s Climate Change Having survived a DEA raid, the co-founder of the first medicinal cannabis collective plots a