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Health and Safety Code Section 11358, Marijuana Cultivation

Under the Compassionate Use Act established in California in 1996, through Proposition 215, the use of marijuana was legalized for specified medical reasons. Prop 215, later codified under HS 11362.5, allowed patients and primary caregivers to possess and cultivate marijuana. A primary caregiver is the person who consistently assumes the responsibility for housing, health, or safety of the person with the qualified medical condition under the HS 11362.5. HS 11358 has created some confusion, however, for those who receive treatment under HS 11362.5. For example, for some in California who attempt to cultivate their own marijuana, they may be subject to criminal prosecution under HS 11358.

HS 11358 states the following:

Every person who plants, cultivates, harvests, dries, or possesses any marijuana or any part thereof, except as provided by law, shall be punished by imprisonment pursuant to subdivision (h) of section 1170 of the Penal Code.

HS 11358 is a felony under California law, and therefore the consequences may include prison. HS 11362.5(d)does create an exception under HS 11358 – that is, patients and primary caregivers are supposed to be excluded when they possess or cultivate marijuana for medical purposes. Unfortunately, this does not always prevent charges from being filed under HS 11358.

The District Attorney will often file charges, arguing that the marijuana is not for medical purposes, the person seeking protection under HS 11358 is not the primary caregiver, or those seeking protection under HS 11358 are engaged in a for profit business.

As mentioned previously, HS 11358 allegation is a felony and requires an experienced drug defense attorney to provide the best possible defense. If you or someone you know has been charged or is under investigation for violation of HS 11358, contact my office today. I will provide a free, confidential consultation.