California was the first state to legalize medical marijuana in 1996. Twenty years later, California joined the handful of other states when it legalized the recreational use of marijuana with Proposition 64. Since then, it has been legal for most Californians to grow marijuana for their personal use. However, there are limits to who can grow and how much they can grow. Unlawful marijuana cultivation can still result in criminal penalties.
Marijuana Offenses in California
Even after legalization, possession, cultivation, and distribution of marijuana still involves a number of criminal charges, including penalties for:
- Underage possession;
- Possession with intent to sell or distribute;
- Distribution, trafficking or sale of marijuana;
- Transporting marijuana across state lines; and
- Cultivation or manufacture of marijuana.
Criminal penalties often depend on the amount of marijuana involved, whether it is intended for sale, and transportation of marijuana. It is important to remember that although marijuana is legal in a number of states, including Colorado, Washington, and Oregon, it is still illegal at the federal level. This means that transporting marijuana across state lines or through an airport could lead to federal drug charges.
Cultivation of Marijuana
After Proposition 64, adults aged 21 and above can grow up to 6 plants for personal use. Six plants is the limit, regardless of their stage of growth or whether or not they are flowering. Plants need to be kept on your own property and should be kept out of sight from passersby. Growing marijuana could be further restricted by local ordinance, with some localities restricting cultivation to indoors only.
Penalties for Unlawful Cultivation
Underage growers or individuals who grow more than 6 plants can be charged with a violation of California Health and Safety Code 11358. However, for individuals with prior criminal or environmental code violations may be charged with a felony if they grow more than 6 plants.
Anyone who plants, cultivates, harvests, dries or processes more than 6 living plants shall be punished by imprisonment in a county jail for up to 6 months, and face a fine of up to $500. Anyone under the age of 21 but over 18 who plants, cultivates, harvest, dries or processes not more than 6 living plants shall be punished by imprisonment in a county jail for up to 6 months, and face a fine of up to $500.
Individuals under the age of 18 found planting, cultivating, harvesting, drying, or processing not more than 6 living plants is guilty of an infraction and faces a fine of up to $100.
Cultivation of more than 6 plants can be charged with a felony if they are registered sex offenders, have multiple prior convictions for the cultivation of marijuana, have prior convictions for certain environmental, health and safety, and fish and game code violations.
Medical Marijuana Cultivation
California became the first state to provide for medical marijuana exceptions for patients and their primary caregivers. The Medical Marijuana Program Act allowed patients and primary caregivers to legally use, possess, and cultivate cannabis for medical purposes. Now with the legalization of recreational marijuana, the laws surrounding recreational and medical marijuana may be more confusing.
Prop. 215, which legalized medical marijuana, has a different plant limit than the recommended Senate Bill guidelines. Even these limits can vary by city or county. Under Prop. 215, patients are entitled to whatever amount of marijuana is necessary for their personal use. However, the police may still arrest someone for exceeding the state guidelines. Patients can't be prosecuted simply for exceeding the limits, however, they may still be arrested and have to defend themselves.
The SB 420 state guidelines have a statewide guideline for the cultivation of 6 mature or 12 immature plants. (A qualified patient or primary caregiver may maintain no more than six mature or 12 immature marijuana plants per qualified patient). In order to avoid the hassle of possible arrest by police, it is advisable to follow the recommended guidelines.
Medical Marijuana Plant Limits by Locality
To make matters even more confusing, different localities have put into place their own limits on cultivating marijuana, limiting how much medical marijuana someone can grow, and where it can be grown. Many towns and cities here in Alameda County and Contra Costa County have enacted their own growing limits. Some localities have outright bans on outdoor marijuana cultivation.
- Concord: Concord city council has adopted an outdoor ban on marijuana cultivation.
- Martinez: Martinez city council has also voted to ban outdoor cultivation of medicinal marijuana.
- Moraga: Moraga has banned outdoor cultivation, and only allow indoor cultivation if it is not visible.
- Berkeley: In Berkeley, outdoor gardens that are observable are limited to 10 plants.
- Fremont: Fremont city council has voted to ban growing medical marijuana outdoors, and it must be out of view from a public place if grown indoors.
- Oakland: In Oakland, indoor cultivation is limited to 72 plants, and the outdoor limit is 20 plants. Collective marijuana gardens are limited to three patients.
Marijuana Cultivation Defenses
Defenses will depend on the individual facts and circumstances of each case, and may depend on how much marijuana was involved, and if the defendant is a qualified patient or primary caregiver under the state's medical marijuana laws. However, even when cities try and ban any marijuana cultivation, Prop 64 makes it clear that adults over the age of 21 can grow up to 6 plants for their use. Medical marijuana patients may be able to grow even more.
Being a qualified patient or primary caregiver can be an affirmative defense to many marijuana cultivation charges. It may also be a defense if the plants are grown on someone's property and they were unaware of the pot being grown. Charges can also be reduced to a charge of possession, or deferred through the diversion program.
In many cases, an overzealous prosecutor may try and get a defendant to plead guilty to certain charges in exchange for dropping other, more serious drug charges. However, before you plead guilty to any criminal charges, make sure you understand your rights to growing marijuana in California. Talk to an East Bay lawyer with experience defending people charged with cultivation of marijuana.
East Bay Marijuana Cultivation Attorney
Lynn Gorelick has more than 30 years of criminal defense experience defending her clients from marijuana cultivation and other drug charges. She understands how to approach the individual facts of each case for the greatest chance of success, keeping her clients out of jail and maintaining a clean record. Whether you are arrested in Oakland, Richmond or anywhere else in Contra Costa or Alameda Counties, contact Lynn Gorelick understands you do not have to plead guilty just because you were arrested.