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Home grow laws

Coloradans can grow marijuana in their homes for personal use.

Up to six plants are allowed per Colorado resident over age 21, with as many as three plants flowering at one time.

Don’t forget that counties and municipalities can pass stricter laws. For example, Denver limits a home grow to 12 plants, even if there are three or more adults over age 21 in the residence. Be sure to check your local laws for specific details.

The laws are different for medical marijuana consumers.

Marijuana plants must be kept in an enclosed, locked area that can’t be viewed openly. This means the plants can’t be outside.

At homes with residents under 21, any marijuana grow area must be enclosed and locked in a separate space that minors can’t access.

At homes without residents under 21, extra precautions must be taken to make sure any visiting youth don’t have access to marijuana plants.

11358 HS – California Marijuana Cultivation Laws

Health and Safety Code 11358 HS is the California statute that defines the crime of illegal cultivation of marijuana. Although adults 21 and over are now permitted to grow up to 6 cannabis plants, the law makes it a misdemeanor offense to grow in excess of these limits. A conviction is punishable by up to 6 months in jail.

The full language of 11358 HS states that:

Each person who plants, cultivates, harvests, dries, or processes cannabis plants, or any part thereof, except as otherwise provided by law, shall be punished as follows:

(a) Each person under the age of 18 who plants, cultivates, harvests, dries, or processes any cannabis plants shall be punished in the same manner provided in paragraph (1) of subdivision (b) of Section 11357.

(b) Each person at least 18 years of age but less than 21 years of age who plants, cultivates, harvests, dries, or processes not more than six living cannabis plants shall be guilty of an infraction and a fine of not more than one hundred dollars ($100).

(c) Each person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living cannabis plants shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both that fine and imprisonment.

(d) Notwithstanding subdivision (c), a person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living cannabis plants, or any part thereof, except as otherwise provided by law, may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code if any of the following conditions exist:

(1) The person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.

(2) The person has two or more prior convictions under subdivision (c).

(3) The offense resulted in any of the following:

(A) Violation of Section 1052 of the Water Code relating to illegal diversion of water.

(B) Violation of Section 13260, 13264, 13272, or 13387 of the Water Code relating to discharge of water.

(C) Violation of Section 5650 or 5652 of the Fish and Game Code relating to waters of the state.

(D) Violation of Section 1602 of the Fish and Game Code relating to rivers, streams, and lakes.

(E) Violation of Section 374.8 of the Penal Code relating to hazardous substances or Section 25189.5, 25189.6, or 25189.7 of the Health and Safety Code relating to hazardous waste.

(F) Violation of Section 2080 of the Fish and Game Code relating to endangered and threatened species or Section 3513 of the Fish and Game Code relating to the Migratory Bird Treaty Act, or Section 2000 of the Fish and Game Code relating to the unlawful taking of fish and wildlife.

(G) Intentionally or with gross negligence causing substantial environmental harm to public lands or other public resources.

Since the passage of Proposition 64 it is now legal for:

  • persons 21 years of age and older,
  • to grow up to six marijuana plants for recreational use.

Per HS 11358, it is an infraction if someone aged 18-20 cultivates marijuana. The crime of underage cultivation of cannabis is punishable by a maximum fine of $100.

The statute also says that:

  • it is a misdemeanor if a person 18 or older,
  • grows more than six hash plants.

Cultivating marijuana is punishable by:

  • custody in county jail for up to six months, and/or
  • a fine of up to $500.

Examples of legal cannabis growers for adult use

  • a 21-year-old growing indoor cannabis in his basement.
  • someone 35 years old cultivating 10 marijuana plants for recreational use.
  • an older couple indoor growing eight weed plants in their home.

Defenses

A defendant can beat a charge under this statute with a legal defense. Common defenses include:

  • no marijuana,
  • hash belonged to someone else, and/or
  • unlawful search and seizure.

In regards to medicinal marijuana, patients and their caregivers may cultivate up to:

  • six mature marijuana plants,
  • 12 immature plants, or
  • a greater amount consistent with the patient’s reasonable needs.

Our California criminal defense attorneys will answer the following key questions in this article:

1. When is it legal to cultivate hash for recreational use?

Since Proposition 64, it has been legal to grow marijuana for recreational use. This is provided that both of the following are true:

  • the grower is aged 21 years or older, and
  • he cultivates no more than six cannabis plants. 1

The following restrictions also apply:

  • a cultivator must follow any applicable local municipality ordinances, and
  • a person can grow no more than six plants at a single private residence.
  • spouses or partners sharing a residence,
  • can cultivate no more than six plants total.

This is opposed to six plants each. 2

Unless local law permits otherwise, a person must grow weed in a cultivation site that is:

  • indoors (“indoor cultivation”) or on the premises of his private property (“home cultivation”),
  • in a locked space, and
  • where the plants are not visible from a public place. 3

The term “cultivate” means to do any of the following:

  • plant,
  • cultivate,
  • harvest,
  • dry, or
  • process

any marijuana or any part thereof. 4

A cultivation license is not required for the recreational growing and use of cannabis.

2. What are the penalties for the unlawful cultivation of marijuana?

A person that unlawfully cultivates this drug may:

  1. face criminal penalties under Health and Safety Code 11358,
  2. receive drug treatment, and
  3. petition for resentencing under Proposition 64

2.1. Penalties under HS 11358

It is an infraction under this law if someone aged 18-20 grows weed. The crime is punishable by a maximum fine of $100. 5

This statute also says that it is a misdemeanor if:

  • a person 21 or older,
  • grows more than six plants.

The crime is punishable by:

  • custody in county jail for up to six months, and/or
  • a fine of up to $500.

Cultivation laws call for felony penalties in certain situations. This is when people cultivate more than six plants and:

  • have a serious violent felony on their record,
  • are registered sex offenders,
  • have two or more prior convictions under HS 11358, and
  • violate certain environmental laws in their cultivation activities. 6

Felony penalties are punishable by:

  • imprisonment in county jail for up to three years, and/or
  • a fine of up to $10,000. 7

2.2. Drug treatment

Per Penal Code 1000 PC, some people convicted of unlawful cultivation may:

  • post-pone any sentence imposed,
  • in order to attend and complete drug treatment.

This is known as “deferred entry of judgment (DEJ).”

A person is eligible for DEJ if:

  1. he was arrested for the cultivation of excessive weed, and
  2. he is a non-violent first- or second-time offender.

2.3. Re sentencing under Proposition 64

Cultivation laws were harsher prior to Proposition 64. Fortunately, this initiative allows people convicted under prior cultivation laws to apply for:

  • resentencing, or
  • the dismissal of any charges.

The court is supposed to:

  • presume that a defendant meets the criteria for resentencing, and
  • grant resentencing unless it would create a risk to public safety.

3. Are there immigration consequences for an 11358 HS conviction?

A simple conviction under this statute will not have negative immigration consequences.

Sometimes a conviction in California can result in a non-citizen being either:

    , or
  • marked as inadmissible.

Unlawful cultivation, however, is not one of these offenses.

4. Does a conviction affect gun rights?

A simple conviction under HS 11358 does not negate a defendant’s gun rights.

California law says that some criminal convictions will cause a defendant to lose:

  • his right to own a gun, and
  • his right to possess a gun.

A conviction under this statute, though, does not produce these results.

5. Are there defenses to accusations of unlawful cultivation?

A defendant can beat a charge under these California marijuana laws with a legal defense.

Three common defenses that criminal defense lawyers rely on:

  1. no marijuana,
  2. hash belonged to someone else, and/or
  3. unlawful search and seizure.

5.1. No marijuana

HS 11358 only applies to the cultivation of marijuana. This means it is always a valid defense for a defendant to say that:

  • even if he was growing something,
  • the plant was not pot.

5.2. Hash belonged to someone else

An accused is only guilty under this statute if:

  • he personally cultivated
  • an excessive amount of weed.

He cannot be guilty for someone else’s actions. Therefore, it is a crime for a defendant to show that the drugs in question were not his.

5.3. Unlawful search and seizure

Authorities cannot conduct a search or take property without a valid search warrant. If no warrant, then they must have a legal excuse for not having one. If the police:

  • gather evidence from an unlawful search and seizure,
  • then that evidence can get excluded from a criminal case.

This means that any charges in the case could get reduced or even dismissed.

6. Can a person get a conviction expunged?

A person convicted under cannabis cultivation laws can get an expungement.

This is true, however, only provided that the defendant completes:

  • probation, or
  • a jail term (whichever is applicable).

An expungement frees a defendant from many of the hardships associated with a criminal conviction. 8

7. What about cultivating medicinal marijuana?

California’s “Compassionate Use Act of 1996” (the “CUA”) applies to the medicinal use of marijuana. The Act’s provisions are set forth in Health and Safety Code 11362.5 HS.

Under the CUA, the following people can legally grow hash for medical use:

  • people who use marijuana with doctor approval to treat a serious medical condition,
  • primary caregivers to such patients, and
  • members of medical marijuana collectives (also known as “dispensaries”). 9

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

  • six mature plants,
  • 12 immature plants, or
  • with a doctor’s recommendation, a greater amount consistent with the patient’s reasonable need. 10
  • if a person is charged under HS 11358,
  • but is really exempt from the law under the CUA,
  • then the person has the burden to prove the reason for the exemption in order to escape prosecution. 11

8. Are there related offenses?

There are three crimes related to the unlawful cultivation of pot. These are:

  1. simple possession of marijuana – HS 11357,
  2. possession of hash with intent to sell – HS 11359, and
  3. selling marijuana – HS 11360.

8.1. Simple possession of marijuana – HS 11357

After the legalization of marijuana in California in 2018, adults age 21 and over can possess:

  • up to one ounce of dried weed, or
  • eight grams of concentrated cannabis (hashish).

Possession laws are set forth in Health and Safety Code 11357 HS.

8.2. Possession of hash with intent to sell – HS 11359

  • anyone other than a licensed dispensary,
  • to possess pot with the intent to sell it.

People who sell marijuana without a license (i.e., on the “black market”) violate Health and Safety Code 11360 HS.

8.3. Selling marijuana – HS 11360

  • selling,
  • giving away,
  • importing into the state, or
  • transporting for sale

any amount of marijuana or concentrated cannabis (hashish) without a state license.

Note that a criminal law exception exists for:

  • the transportation of weed,
  • by California medical cannabis users of pot for their personal use.

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group for a free consultation. Our law office creates attorney-client relationships throughout the state, including Los Angeles, Santa Ana, Orange County, Long Beach, San Bernardino, Beverly Hills, Riverside, Pasadena, Glendale, and more.

People interested in joining the cannabis industry should go to California’s Department of Cannabis Control for regulatory information about large-scale cultivation facilities, outdoor cultivation, and cannabis production. The site also has information on selling edibles and THC products, pesticides, zoning for growing operations, labeling, public health, and environmental impacts (including on watersheds), and other topics related to the cannabis business.

For information on marijuana cultivation in Nevada and Colorado, please see our articles on:

  • “Nevada laws for Cultivation of Marijuana in Nevada (NRS 453.3393),” and
  • “Colorado Laws re Marijuana.”
Legal References:
  1. California Health and Safety Code 11358 HS. See also CALCRIM 2370. HS.
  2. See same. See also Be prepared when visiting our National Forests — what to do if you encounter a marijuana cultivation site, U.S Department of Agriculture.
  3. California Health and Safety Code 11358 HS.
  4. See same.
  5. See same.
  6. See same.
  7. California Penal Code 1203.4 PC.
  8. California Health and Safety Code 11362.5d HS. . As to “reasonable need,” see also People v. Trippet (1997) 56 Cal.App.4th 1532. .

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