With medical marijuana so readily available in California, you might think cultivation of marijuana is a minor offense, but it is not yet.

But under HS 11358, unless you are entitled to legally use medical marijuana or medical cannabis  – or you are the primary caregiver to someone who is – doing any of the following to any part of the marijuana plant could land you in jail:

  • planting,
  • cultivating,
  • harvesting,
  • drying, or
  • processing

You are not required to be in the same location with the marijuana to be guilty of unlawfully cultivating marijuana. It may only be enough that:

  • You participated in some way in the pot or marijuana cultivation or processing, or
  • You had dominion over the property or space on which pot is grown or processed, and you knew that it was there.

The penalty for California HS 11358 unlawful cultivation of marijuana may be harsh

California marijuana laws make cultivation a felony offense. Consequences of  even a first offense under HS 11358 can include 16 months, or two or three years in county jail.

However, you may be eligible for drug treatment in lieu of jail time if:

  • You are a non-violent first- or second- time offender, and
  • The charges against you are limited to possession and / or cultivation for personal use.

Negotiating a lesser charge

Depending on the particular facts and circumstances of your case one of our very experienced and highly skilled criminal defense lawyers at Fiumara & Milligan Law, PC may be able to get the cultivation charges dismissed.

In the very least one of our highly skilled and dedicated criminal defense lawyers may be able to get your charges reduced to simple possession of marijuana under California Health and Safety Code 11357 HS … which is punishable by a $ 100 fine.

Who may legally grow marijuana in California?

Marijuana or cannabis may be grown legally in California by:

  • Medical marijuana users, and
  • Medical marijuana primary caregivers.

You may be entitled to legally use medical marijuana in California if:

  1. Your doctor recommended or approved it (either verbally or in writing),
  2. For the treatment of a serious medical condition, such as:
    1. AIDS
    2. Anorexia
    3. Arthritis
    4. Cancer, and other debilitating conditions
    5. Migraines
    6. Multiple sclerosis
    7. Seizures, or
    8. Any other debilitating condition, including serious chronic pain or nausea and dementia

A medical marijuana ID card is not required

Patients and primary caregivers do NOT need a medical marijuana ID card (“MMID”) in order to cultivate marijuana for the patient’s personal use.

However, having a valid MMID offers additional protection against being arrested.

How much marijuana can be legally cultivated?

Medical marijuana patients and their primary caregivers may cultivate up to:

  • Six mature marijuana plants-but it is best to get the most updated information from counsel
  • 12 immature marijuana plants, or
  • With a doctor’s recommendation, a greater amount consistent with the patient’s reasonable needs—however, it is advisable to consult with one of our very experienced and highly skilled criminal defense attorneys at Fiumara & Milligan, Law PC prior to Court. The law is in constant flux and some prosecutors tend to be overzealous on strict enforcement.

Medical marijuana dispensaries

Members of non-profit collectives or cooperatives (marijuana dispensaries) may also cultivate marijuana to give (or sell “at cost”) to their members.

Defenses to HS 11358 unlawfully cultivating marijuana under California Health and Safety code 11358 include, but are not limited to:

  • The marijuana belonged to someone else;
  • You did not know the marijuana or pot was there;
  • You did not know it was marijuana;
  • You are entitled to legally use medical marijuana;
  • You are the primary caregiver for a medical marijuana patient; or
  • The pot was found during an illegal search;
  • You did not own the land-it was sold to someone else, mistake of record;
  • You never gave anyone permission to grow or cultivate on your land–trespass is a defense under these circumstances. We had one such case where the 91 year old owner never went to the furthest corner of her 90 acre parcel due to her disability, but the prosecutor already charged her and committed themselves to steal or forfeit her land—all in the name of enforcement!

When you are facing substantial jail time, or other severe penalties you should consider:

  • Always a Free Consultation at Fiumara & Milligan, Law PC
  • Please call North Bay attorneys at Fiumara & Milligan Law, PC 24/7 at (707) 571-8600 in our centrally located Santa Rosa office in Sonoma County or call our office in San Rafael in Marin County at (415) 492-4507 to schedule a free and confidential consultation to keep you out of jail. If you call after hours, our operators will gladly connect you to one of our experienced and compassionate attorneys 24/7.
  • “The Right Attorney Makes All the Difference.”