Generally speaking, the law is composed of overarching rules that prohibit certain kinds of conduct, and then a handful of exceptions that allow that conduct in a given set of situations. Cultivating marijuana in California is a crime that follows this format. Growing marijuana plants is illegal, except in the narrowly tailored circumstances that allow it. Most of these exceptions come from California's statutes that deal with medicinal marijuana, in the Compassionate Use Act, and recreational marijuana, through Proposition 64 and the Adult Use of Marijuana Act.Cultivating Marijuana in California is Generally Illegal
The overarching rule that prohibits growing marijuana in California is embodied in the California Health and Safety Code 11358.
This law punishes anyone who
plants, cultivates, harvests, dries, or processes cannabis plants, or any part thereof, except as otherwise provided by law.
To convict you under Health and Safety Code 11358, a prosecutor only has to prove two things beyond a reasonable doubt:
- You planted, cultivated, harvested, dried, or processed a marijuana plant, and
- You knew that it was a marijuana plant.
If you do get convicted for cultivating marijuana in California, the penalties that you can face are steep. They also depend on your age at the time of your arrest.An Infraction for People Under 18
If you were under the age of 18 when you were arrested for illegally growing marijuana, the offense is an infraction – a crime below the level of even a misdemeanor. If it was your first offense, a conviction comes with the following sanctions pursuant to California Health and Safety Code 11357(b)(1)(A):
- Eight hours of drug education or counseling; and
- Up to 40 hours of community service.
Second or subsequent offenses by underage defendants are punished by Health and Safety Code 11357(b)(1)(B):
- Ten hours of drug education or counseling; and
- Up to 60 hours of community service.
An Infraction for People Between 18 and 21
If you were between the ages of 18 and 21 at the time of your arrest, the offense is still an infraction – below the level of a misdemeanor. Under Health and Safety Code 11358(b), convictions for cultivating marijuana for this age group come with a fine of up to $100.A Misdemeanor or Felony Offense for Adults
Finally, adults who are charged with cultivating marijuana in California will generally face misdemeanor charges. Under Health and Safety Code 11358(c), convictions for this offense come with:
- Up to six months in jail; and
- Up to $500 in fines.
However, charges for growing marijuana are felony-level offenses in certain situations. These circumstances are listed in Health and Safety Code 11358(d), outlining who would face felony charges, rather than misdemeanors for cultivating marijuana:
- Anyone who has been convicted for an eligible violent felony in the past
- Registered sex offenders
- Anyone with two or more prior convictions for cultivating marijuana; or
- Anyone who violated one of a handful of state environmental laws while growing marijuana.
If you fall into one of these categories, you could face a felony-level offense of cultivating marijuana, which comes with enhanced penalties:
- Between 16 months and three years in jail; and
- Up to $10,000 in fines.
California Health and Safety Code 11358, however, was written before the state legalized marijuana for either recreational or medicinal purposes. The laws legalizing recreational and medicinal marijuana carved important exceptions into the rules stated in Health and Safety Code 11358, prohibiting the cultivation of marijuana plants.
Now, if you abide by the restrictions and regulations outlined in the Compassionate Use Act, you can lawfully cultivate and harvest marijuana for medicinal purposes. If you follow the rules in the Adult Use of Marijuana Act, you can legally grow plants for recreational use.Legal Cultivation of Medical Marijuana
When it was passed in 1996, the Compassionate Use Act carved numerous exceptions into the laws prohibiting the possession, use, and cultivation of marijuana for people who relied on the drug for medicinal purposes. Under the Act, anyone who received a recommendation from a licensed physician to use marijuana to treat a serious medical condition also received the right to grow a limited amount of marijuana to facilitate that use.
Part of the Compassionate Use Act, embodied at California Health and Safety Code 11362.5(d), exempts the following people from the regular rules that deal with the cultivation of marijuana:
- A patient who lawfully uses marijuana for medical purposes; and/or
- A patient's primary caregiver.
Elsewhere in the Compassionate Use Act, licensed dispensaries of medical marijuana are also exempted from the laws governing the cultivation of the drug.
When it comes to the cultivation rights of a medical marijuana patient and his or her primary caregiver, it is the Health and Safety Code 11362.77 that lays out the guidelines. Subsection (a) gives the typical limitations for cultivating medical marijuana:
- Up to six mature marijuana plants per qualified patient; and
- Up to 12 immature marijuana plants per qualified patient
However, subsection (b) provides an important exception to this rule: “If a qualified patient or primary caregiver has a physician's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient or primary caregiver may possess an amount of cannabis consistent with the patient's needs.”
Therefore, if a medical marijuana patient's doctor recommends an amount that goes above the usual limitation of six mature plants, then the patient – or his or her primary caregiver – can cultivate an amount above it.Legal Cultivation of Recreational Marijuana
The passage of Proposition 64 in 2016 led to the legalization of marijuana for recreational purposes in California, which went into effect on January 1, 2018, as the Adult Use of Marijuana Act. This new law has carved new exceptions into the law regarding the possession, use, and cultivation of marijuana in the state of California.
When it comes to marijuana cultivation, the Adult Use of Marijuana Act allows anyone over the age of 21 to keep, grow, cultivate, and harvest up to six marijuana plants in his or her home.
This right, however, has lots of terms that can create ambiguity and can lead to legal trouble if you do not understand what is permissible.Define “Cultivate”
Actions that constitute “cultivating” marijuana include almost anything that has to do with growing the drug or harvesting it. You can be “cultivating” marijuana if you:
- Help pot a marijuana plant
- Trim a plant
- Turn on growth lamps; and/or -- among other things --
- Clips leaves for smoking.
This broad definition of cultivating marijuana is crucial because you can only legally cultivate six plants of recreational marijuana. If you already have your allotted six plants in your own home, and then help a friend who is away on vacation by caring for his or her plants, you could be breaking the law.Where You can Grow Marijuana
Unless local ordinances provide otherwise, Health and Safety Code 11362.2 requires anyone cultivating marijuana to keep the plants, as well as any marijuana produced in excess of the allowed 28.5 grams that can be legally possessed, within the confines of the following three rules:
- They have to be either in your home or in your yard
- In a locked space; and
- Not visible from a public place with normal, unaided vision.
Another important limitation on your rights to cultivate marijuana in California is found at Health and Safety Code 11362.2(a)(3). This limitation puts the six marijuana plant cap on a residence, not on a person.
The implications of this rule become prevalent if both you and your spouse – or even you and your roommate – want to exercise your right to recreational marijuana. Instead of both of you being able to legally raise six plants each, you would be confined to six plants between the two of you.Legal Defenses to Unlawful Cultivation of Marijuana
Because the use of recreational marijuana is still so new, the legal defenses to allegations for unlawful cultivation of marijuana are still being developed. However, some of the strongest that have been used so far include:
- The marijuana is medicinal. If you use marijuana to treat a medical condition and have a doctor's recommendation to grow the amount you have, you can beat a charge for unlawful cultivation.
- You were not cultivating the marijuana. Just because the plants were on your property does not mean that you were the one cultivating them.
- There was an illegal search. Police have to respect your Fourth Amendment rights while searching for evidence. If they violate these rights, anything they find can be excluded from court.
William Kroger is one of Los Angeles' leading marijuana attorneys. Contact him online or call his law office at 323-655-5700 for legal representation or for the information you need to stay inside the law as you exercise your rights to cultivate marijuana.