California Health and Safety Code Section 11358 HSC: Cultivating Marijuana

1. Definition and Elements of the Crimemarijuana cultivating

Due to the optimal weather and soil conditions, California is considered by gardening enthusiasts to be an ideal location for growing all sorts of plants. One plant that grows particularly well in the local area is marijuana. However, cultivating marijuana is a serious crime under California Health & Safety Code Section 11358 HSC and those convicted of this marijuana offense may face substantial punishment, including prison.

To prove that the defendant is guilty of cultivating marijuana, the following elements must be present:

  1. The defendant unlawfully planted, cultivated, harvested, dried or processed one or more marijuana plants
  2. AND the defendant knew that the substance he or she planted, cultivated, harvested, dried or processed was marijuana.

If authorized by the Compassionate Use Act, one is allowed to possess and cultivate marijuana. The amount of marijuana cultivated must be reasonably related to the patient’s current medical needs. A primary caregiver is someone who has consistently assumed responsibility for the housing, health, or safety of a patient who may legally possess or cultivate marijuana.

A landowner can be convicted of aiding and abetting the cultivation of marijuana based on his or her knowledge of the activity and failure to prevent it.

Cultivating marijuana can include any of the following activities:

  1. Handling marijuana seeds
  2. Cultivating/tending to marijuana plants in soil
  3. AND dying and processing marijuana after it has been harvested
2. Related Offenses

Similar offenses include the following:

  1. Possession of Marijuana – California Health & Safety Code Section 11357 HSC
  2. Possession for Sale of Marijuana – California Health & Safety Code Section 11359 HSC
  3. Selling Marijuana – California Health & Safety Code Section 11360 HSC
3. Examples

A landlord owns several properties around town. While inspecting one of his properties, he notices that the tenants are growing substantial amounts of marijuana in an outside greenhouse. The tenants are not authorized by the Compassionate Use Act to grow or possess marijuana, however the landlord personally does not mind their use of the greenhouse and makes no objection. The landlord, along with the tenants, can be prosecuted for cultivating marijuana in violation of California Health & Safety Code Section 11358 HSC. The fact that he did not personally grow the marijuana would not diminish his liability for aiding and abetting in this offense.

In another example, a woman has been diagnosed with multiple sclerosis and has received a marijuana prescription from a licensed physician. Her son, who is her primary caregiver, grows several marijuana plants in his closet that he gives to his mother. As long as he is, in fact, a primary caregiver, the man would not be criminally liable for cultivating marijuana as he would be permitted to grow marijuana under the Compassionate Use Act.

4. Defenses to Cultivating Marijuana

As described above, if the defendant is authorized to grow and possess marijuana under the Compassionate Use Act, or is the primary caregiver for someone authorized under the Act, he or she would be permitted to cultivate a reasonable amount of marijuana. Because it may take many plants to produce a usable amount of marijuana, a “reasonable amount of plants” may be more than one would initially think.

If the plants were discovered as the result of an illegal search performed by police without probable cause, there may be grounds to suppress the plants and all other evidence associated with the crime of cultivating marijuana.

5. Penalties

Cultivating marijuana is a felony that is punishable by up to three years in prison, in addition to substantial court fines.

6. Criminal Defense for Cultivating Marijuana

If you or a loved one have been arrested for or charged with cultivating marijuana, it is important that you consult with a top-rated Los Angeles Criminal Defense Attorney as soon as possible. There may be diversion programs available that could help prevent a criminal conviction altogether, and an experienced criminal defense lawyer can help explore these options. Los Angeles Criminal Defense Attorney Michael Kraut is a former Deputy District Attorney with over 14 years of prosecutorial experience who knows how to effectively contest all aspects of marijuana-related offenses. Mr. Kraut works hard to ensure that his clients receive the most comprehensive defense possible.

For more information about cultivating marijuana, and to schedule your free consultation, contact Los Angeles Criminal Defense Attorney Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.

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