HSC Section 11358

Cultivation of Marijuana

Due to the recent changes in California law regarding the recreational use of marijuana, the penalties for the cultivation of marijuana have changed. Continue reading to learn how it may be possible to avoid jail time or a felony conviction.

Prop 64.

Prop 64 went into effect on January 1, 2017 and made some marijuana cultivation legal. Those who are 21 or older may cultivate up to 6 marijuana plants per household, not per person living in a household so long as they are invisible from the view of any public space. That means if anyone can see your plants from any public space with their natural unaided vision, you are likely unlawfully growing marijuana.

However, there are many other restrictions as well. These restrictions include:

  • Local laws forbidding cultivation
  • Environmental restrictions that may apply
  • The space used to grow must be locked, meaning if you grow outdoors plants must be secured while still being invisible from public view

Cultivation means:

  • Planting
  • Cultivating
  • Harvesting
  • Drying AND/OR
  • Processing

any part of a marijuana plant in any way. How much or how little you cultivate is irrelevant. If you do anything related to cultivation, e.g. stacking plants to dry, you are cultivating, even if the plants are not yours.

If cultivation involves 6 plants or less, no crime has been committed.

Health and Safety Code Section 11358

Section 11358 had varying punishments for those who cultivate more than 6 marijuana plants per household. Violations are misdemeanors and are punishable by:

  1. Up to 6 months in jail
  2. A fine of up to $500
  3. Or BOTH jail and a fine

Those punishments are different, and result in a felony for some offenders if they:

  1. Have a prior conviction for a serious or violent felony (AKA a Strike)
  2. Are a registered sex offender (PC 290)
  3. Have 2 or more prior convictions for violating HS 11358; OR
  4. Violate a list of environmental laws though their cultivation e.g. illegally diverting water, or harming an endangered species

If a defendant falls under one of the criteria listed above, among others listed in HS 1135, they can be sentenced by a larger fine and could serve 4 years or more in prison.


The defenses to illegal cultivation of marijuana are numerous:

  • The alleged unlawfully cultivated plants may not be yours
  • You may not have planted, cultivated, harvested, dried, or processed as required by HS 11358
  • You did not know the plant or its related parts were marijuana

Only rely on a licensed criminal defense attorney’s advice about how best to fight your case.

Sentencing Alternatives

DEJ/Diversion PC 1000

California has made strides in diverting those accused of drug crimes away from the criminal justice system and into drug programs. However, it is important to note:

  • The marijuana cultivated must not have been with the intent to sell it. This means the cultivated marijuana must have been for personal use.
  • A defendant must not have a prior conviction involving controlled substances (drugs)
  • A defendant must not have prior convictions involving violence or a threat of violence
  • A defendant must not have a felony conviction within the preceding 5 years
  • And more…

Even if you qualify for Deferred Entry of Judgment (DEJ) or Diversion into a drug program, you may have to first plead guilty to a crime, you will have to complete some sort of drug program that is ordered by the court, and you may go to jail or prison if you fail to satisfy all of the court’s requirements.

Resentencing Under Prop 64

Prop 64 allowed for many drug crimes to be re-sentenced as misdemeanors, even if they were committed before January 1, 2017. This could be the difference between going to prison and having a felony on your record, and simply committing a misdemeanor and avoiding jail time.

Always contact a licensed criminal defense attorney to determine how the law applies to your case.

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