Cultivation of Marijuana


Even though it’s now legal to possess and cultivate small amounts of marijuana for personal use, growing more than the legal amount can result in criminal charges. If you’ve been charged with marijuana cultivation, San Diego marijuana lawyer Jessica McElfresh can explain your options for a defense and help fight your charge. Contact McElfresh Law today at (858) 756-7107 for a free consultation about your marijuana cultivation charge.

What is Marijuana Cultivation?

Under California Health & Safety Code §11358, marijuana cultivation is defined as planting, cultivating, harvesting, drying, or processing a marijuana plant or any part of it. Marijuana is the plant Cannabis sativa L., and all of its parts or derivatives, including seeds, resins, mixtures or preparations.

Since the passing of Proposition 64 in November 2016, California permits adults ages 21 and over to cultivate up to six plants for personal, recreational use. However, cultivating more than six plants, or marijuana cultivation by anyone under 21, can result in penalties under California law.

Consequences of a Cultivation of Marijuana Conviction

The penalties for cultivating marijuana vary depending on the age of the person and the number of plants cultivated.

If you are under 18 and cultivate any number of plants, the possible consequences of a conviction include:

  • First Offense — Eight hours of drug education or counseling and up to 40 hours of community service over 90 days
  • Second Offense — Ten hours of drug education or counseling and up to 60 hours of community services over 120 days

If you are ages 18 to 20 and cultivate up to six plants, you may be charged with an infraction punishable with a $100 fine.

If you are over 18 and cultivate more than six plants, you may be charged with a misdemeanor. Possible consequences include:

  • Up to 6 months in a county jail
  • A fine of up to $500

Certain prior convictions, or when marijuana cultivation results in certain environmental violations, can make cultivation a felony with possible penalties that include:

  • A county jail sentence of 16 months, 2 years, or 3 years

Other Effects of a Conviction

If you are convicted of a criminal marijuana cultivation charge, you will have a permanent criminal record as a drug offender. You may experience negative consequences that include:

  • Background Checks — Your conviction will show up when someone checks your criminal history for a job application, apartment application, or an application for a security clearance to do government work as an employee or contractor. You may have a hard time getting hired or convincing a potential landlord to rent to you.
  • College Financial Aid — A drug conviction on your record may prevent you from receiving financial aid such as student loans or grants to pay for classes at a college or university. If you’re currently a student, that may prevent you from completing your degree unless you can find another way to pay your tuition.
  • Immigration — A felony drug conviction may be grounds for the government to deny your application for an immigration visa, residency permit, or citizenship, or to revoke your existing visa or green card. You may be deported if you’re convicted of a felony drug offense.
  • Professional Licensing — A felony drug conviction may be cause to have your professional license, such as a license to practice, law, medicine, nursing, or pharmacy, suspended or revoked by the state board or agency that oversees licensing in your profession.
  • Custody Cases — A felony drug conviction can affect your ability to obtain or keep custody of your children in some instances.

Is Drug Diversion an Option?

Depending on the circumstances of your case, you may be allowed to enter a drug diversion program under California Penal Code §1000 and complete treatment in lieu of a jail sentence. The statute allows for diversion when:

  • You have no prior drug-related convictions
  • Your current charge does not involve a violence or a threat of violence
  • There is no evidence of additional drug violations that do not qualify for diversion under PC §1000
  • You have never had probation or parole revoked
  • You haven’t completed a diversion program within the previous 5 years
  • You have no felony convictions within the previous 5 years

When you enter a drug diversion program, you plead guilty to the cultivation of marijuana charge and the court agrees to delay your sentencing while you complete treatment and meet any other conditions. If you successfully complete the program, your case is dismissed and you don’t have to disclose that you were charged when you apply for a job or an apartment.

A San Diego marijuana lawyer can fight for your opportunity to enter a drug diversion program to avoid other criminal consequences.

Defending a Cultivation of Marijuana Charge

To convict you of marijuana cultivation, a prosecutor must prove beyond a reasonable doubt each of the following allegations:

  • Participated in planting, cultivation, drying, harvesting, or processing
  • Of plants that were marijuana
  • You knew the plants were marijuana

It’s possible that police or prosecutors may misidentify plants. A couple of years ago there was a story that made national news about a couple who were pulled over in Tennessee because the officer thought their car had a decal that looked like a marijuana leaf. In fact it was a Buckeye leaf, which has a vaguely similar appearance to a cannabis leaf, and the couple were fans of The Ohio State University Buckeyes football team. A lot of people had a laugh at the officers’ expense, but the story demonstrates that even trained officers can make mistakes when identifying plants they think are cannabis. If the plants in your case were misidentified and were not actually Cannabis sativa L., but perhaps something similar, then you may have a defense to the cultivation charge.

Likewise, if you have evidence that demonstrates you didn’t know the plants were marijuana or didn’t know that the plants were present on property you own or control, an experienced San Diego marijuana lawyer may be able to use that to get your charge dismissed or reduced to something less serious.

Another possible defense strategy may exist if you have a medical marijuana card or are the caregiver for a medical marijuana patient. Legitimate medical marijuana patients or their caregivers are allowed to cultivate a limited number of cannabis plants for medicinal purposes.

Additionally, drug cases often are built on evidence obtained in searches or seizures. If your defense lawyer can successfully argue that the search or seizure was illegal or that your constitutional rights were violated, that may improve your chance of a favorable outcome.

The set of circumstances in each person’s case is unique, and your San Diego marijuana lawyer can explain what to expect in your case and what strategies might work best in defending your marijuana cultivation charge.

This website is intended for informational purposes only. Use of this website does not create an attorney-client relationship. Free consultation for criminal defense cases only. Cannabis business consultation requires a fee.