Can You Go to Jail for Growing Weed in California
In this post, I am going to explain how California's laws on illegal marijuana cultivation1 was updated and inverse with the passage of Proffer 64.
This proffer changed California law so that adults who are 21 or older may legally
- found,
- cultivate,
- harvest,
- dry or process up to half-dozen (6) living marijuana plants lawfully.
So When Does Cultivation Become Illegal?
(Watch this video for an in-depth explanation)
In This Guide We'll Cover:
Overview Of Wellness and Condom Code 11358
Under Health & Safety Code Section 11358, it is illegal for anyone who is not lawfully permitted2 to utilize marijuana (medicinal or adult utilise), to plant, cultivate, harvestiii, dry, or process marijuana or any part of it.
What Does A Prosecutor Need To Prove For A Guilty Verdict?
If y'all are charged with illegally cultivating marijuana, the prosecutor must show the following to establish that you are guilty nether Health & Rubber Code 11358:
- You were under the historic period of 21, or
- You planted more than 6 cannabis plants4, and
- You lot must take known it was a cannabis plant.
How Is Knowledge Proven?
You were enlightened of the substance'southward presence, and that it was marijuana. The mere fact that you knew that the substance was in your possession, and you knew that it was a controlled substance is plenty.
Are There Additional Requirements For Legal Cultivation?
Additionally, unless local law permits to the contrary, cultivators for personal use are required to:
- Grow indoors or on the premises of your private holding, in a locked infinite, and
- Where the plants are non visible from a public identify.
What Are The Penalties For Illegal Marijuana Tillage?
Penalties can be an infraction, misdemeanor, or a felony depending on several factors, including your criminal history and the severity of the criminal offence.
This criminal offence is charged as an infraction if:
- You lot are under the age of xviii, or
- Your eighteen-21 and you did not found more than than six (six) plants.
As an infraction, your punishment is a fine of $100
In well-nigh cases cultivating more 6 plants will be charged equally a misdemeanor.
Can HS 11358 Be Charged As A Felony?
In the post-obit situations a cultivation accuse under HS 11358 will become a felony:
- Defendants with serious violent felonies on their tape;
- Registered sex offenders;
- Defendants who accept two (two) or more prior convictions for cultivating more than than six marijuana plants; and
- Defendants who violate certain California environmental laws in their marijuana tillage activities.
The penalties for a misdemeanor or felony are as follows:
| Penalties | Misdemeanor | Felony |
|---|---|---|
| Fine | Up top $500 | As determined by the court |
| Probation | Possible summary probation | 0-five years formal probation |
| Jail Or Prison | Upward To six months | sixteen months – 3 years in jail |
Are You Eligible For Deferred Sentences?
If you grow for personal employ, you may be eligible for a diversion sentence nether Penal Lawmaking 1000, if there is no evidence of intent to sell.
The benefit of a deferred entry of judgment is you can filibuster your case while attending drug handling and if you complete the program your case is dismissed pre-plea.
Can Y'all Go Prop 36?
This offense is not eligible under Proposition 36.
Under proposition 36 when a defendant is bedevilled of a "irenic drug possession crime," the court must suspend the imposition of the sentence, grant probation, and crave the accused to participate in and consummate a court-approved drug treatment programme equally a condition of probation.
Tin can Older Convictions for HS 11358 Be Updated According To Prop 64?
Yes, prop 64 allows individuals sentenced under stricter guidelines to use for re-sentencing in their cases.
The police intends for the court to re-sentence individuals unless they pose a threat to the safety of the public.
Are There Legal Defenses To Charges Of Illegal Marijuana Cultivation?
There are several defenses that your attorney can assert on your behalf to fight a charge of marijuana cultivation.
Hither are the most mutual ones:
Unlawful Search And Seizure
If the cultivated marijuana is non in apparently view and police officers don't have a warrant they are non permitted to search the premises.
Any seizures resulting from an illegal search will be excluded from prove in a respective criminal case.
Y'all Did Not Know That The Institute Was Marijuana
Y'all are required to have knowledge of the nature or grapheme of the plant equally marijuana.
Therefore, knowledge is a critical role of this accuse.
Y'all Have A License To Cultivate Marijuana
The State of California legalized cannabis for personal use in 2016.
If you have practical for a let or license to cultivate marijuana and have been granted this ability by the Bureau of Cannabis Control (BCC), you have a defense if yous were growing cannabis within the parameters of your permit/license.
It would be a complete defence to the crime of cultivation if you lot were a licensed and properly operational cannabis cultivator.
- California Wellness And Rubber Code 11358 HS [↩]
- Health & Condom Code 11362.5. (a) This section shall be known and may be cited equally the Compassionate Use Act of 1996. (b) (1) The people of the State of California hereby notice and declare that the purposes of the Compassionate Use Act of 1996 are as follows: (A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has adamant that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. (B) To ensure that patients and their principal caregivers who obtain and employ marijuana for medical purposes upon the recommendation of a physician are non subject to criminal prosecution or sanction. (C) To encourage the federal and state governments to implement a program to provide for the safe and affordable distribution of marijuana to all patients in medical demand of marijuana. (2) Nothing in this section shall exist construed to supplant legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes. (c) Notwithstanding whatever other provision of law, no physician in this country shall exist punished, or denied any correct or privilege, for having recommended marijuana to a patient for medical purposes. (d) Department 11357 relating to the possession of marijuana, and Section 11358 relating to the tillage of marijuana, shall not apply to a patient, or to a patient'south principal caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or blessing of a doc. [↩]
- Every person who plants, cultivates, harvests, dries, or processes any marijuana, or any function thereof, with knowledge that it is marijuana, or a part thereof, is guilty of the crime of violation of Section 11358 of the Health and Condom Code. In club to prove the commission of such criminal offense, each of the post-obit elements must be proved: 1. That a person planted, cultivated, harvested, dried, or processed a marijuana plant, and two. That such person knew it was a marijuana plant or some part thereof." (CALJIC No. 12.24.) Webster'southward Third New International Dictionary (1981) folio 1036, defines harvest and harvesting as follows: "Harvesting (n) 'an human action or instance of gathering in a crop or store ….' "Harvest (vt) '1a: to gather in (a crop): REAP … b: to gather (a natural product) equally if by harvesting ….'" The instructions refused were: "(1) Harvest–north. [… to cut, whence Shear, Curt: basis sense 'time of cutting'] ane. the fourth dimension of the year when matured grain, fruit, vegetables, etc. are reaped and gathered in 2. a season'south yield of grain, fruit, etc. when gathered in or ready to be gathered in; ingather 3. the gathering in of a ingather iv. the upshot or upshot of whatsoever effort or serial of events [the tyrant's harvest of detest]–vt., vi. 1. gather in (a ingather, etc.) ii. to assemble the crop from (a field) three. to get (something) as the result of an action or try ….'"(2) Harvest–to gather in a flavor'southward yield of grain, fruit, etc. (Webster's New World Lexicon) "verb: to gather in a crop"ingather is defined as the yield of any product in one flavour or place." http://law.justia.com/cases/california/court-of-appeal/3d/144/386.html [↩]
- Under Prop. 215, patients are entitled to whatever amount of marijuana is necessary for their personal medical use. However, patients can be arrested if they exceed the SB 420 guidelines. SB420 sets a baseline statewide guideline of half dozen mature or 12 immature plants, and 1/two pound (viii oz.) processed cannabis per patient. Individual cities and counties are allowed to enact higher (but not lower) limits than the overall California statewide standard. In a state Supreme Courtroom ruling, People v. Kelly (2010), the courtroom held that patients tin not be prosecuted simply for exceeding the SB 420 limits; however, they can be arrested and forced to defend themselves as having had an amount consequent with their personal medical needs. [↩]
Source: https://aizmanlaw.com/marijuana-cultivation/
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