11358. Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.
Potential Sentence: punishable by up to three (3) years in state prison and a $10,000 fine.
To be successful with a H&S 11358 charge, the prosecution must prove:
- The defendant illegally planted, cultivated, harvested, processed at least one marijuana plant
- The defendant knew the item he handled was marijuana.
Explanation of the Law:
- “Marijuana” is defined as the whole or part of a Cannabis sativa L. plant. The plant does not need to be in a growing state. This definition covers derivatives of the plant, resin, and any mixtures made from the plant. Excluded from the definition are the stalks of the plant or products made from it, and the sterile seeds.
- Harvesting means the gathering of any crop. People v. Villa (1983) 144 Cal.App.3d 386.
Defense: Compassionate Use Act
Under the Compassionate Use Act cultivation and possession of marijuana is legal under certain circumstances. One can qualify to use this defense if they use the marijuana for personal medical use or as the caregiver of someone qualified to use medical marijuana per a physician's approval. For more on who qualifies as a primary caregiver, refer to People v. Mentch (2008) 45 Cal.4th 274. The amount of marijuana possessed needs to be a reasonable amount considering the patient's treatment. People v. Trippet (1997) 56 Cal.App.4th 1532. The prosecution must be able to prove that the defendant did not have a valid medical use for the marijuana. People v. Mower (2002) 28 Cal.4th 457. If they cannot prevail on that point, the jury must acquit the defendant.
Lesser Included Offense:
Aider and Abettor Liability for Landowner: If a landowner is aware of cultivation activity on his propery and does not prevent it (i.e. notify the authorities) he can be charged as an aider and abettor. People v. Null 157 Cal.App.3d 849.