Marijuana Cultivation is codified as both legal and illegal in California Health and Safety Code §11358. After the passage of Proposition 46 on November 8, 2016, it is now legal to cultivate up to 6 plants of marijuana. Notwithstanding a medical marijuana defense it is unlawful for any person to plant, cultivate, harvest, dry, or process marijuana more than 6 marijuana plants.
But also thanks to Proposition 46, Health and Safety Code § 11358 is no longer a felony, even if more than 6 plants are grown, it is now misdemeanor, notwithstanding a Medical Marijuana Defense. Marijuana is considered a plant when the roots of the plant take hold in the soil. Therefore, even small cuttings or clones can become marijuana once the roots take hold. Cultivation covers the growing and the harvesting of marijuana. So, for example, if the plants have already been cut, it is still cultivation if the buds are still being cut from the plant.
This new law is particularly helpful to those convicted of marijuana crimes in Modesto or Stockton, because the DA and police in these jurisdictions have been particularly aggressive prosecuting marijuana charges over the past several years. It is estimated several thousand people may benefit from the changes in this area of law.Those with “Super Strike” Convictions May Not Qualify for Dismissal or Reduction
Under Proposition 46, a person with a “super strike” conviction, or is required to register as a sex offender under Penal Code section 290(c), a higher level of punishment may be imposed for certain crimes listed in the Proposition. For example, section 11358, governing cultivation of marijuana, provides that persons over 18 years of age who cultivates more than 6 living 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 . . . $500, or both such fine and imprisonment.” (§ 11358(c).) However, if such person has a prior “super strike” or is required to register under Penal Code section 290(c), the person “may” be punished by imprisonment pursuant to Penal Code section 1170(h). (§ 11358(d).) The punishment is permissive; it is not mandatory. The Act expressly changes the operative term from “shall” to “may.” Accordingly, for those persons who possess more than the legal limit of marijuana, and who have a “super strike” or are required to register as a sex offender under Penal Code section 290(c), the court may choose between a jail term of up to 6 months, or a term of 16 months, two, or three years under Penal Code section 1170(h).Hire Experienced Marijuana Defense Attorneys
Some attorneys will claim to be a marijuana cultivation attorney but have not clue about how to defend a cannabis case, even with a California medical marijuana defense. Attorneys with The Bogan Law Firm, A Professional Corporation have handled countless cannabis cultivation cases with great success for their clients.
A medical marijuana defense may be explored in cultivation cases. Cultivation cases get particularly complicated where there are collectives or cooperatives involved with the cultivation of marijuana. Law enforcement does not necessarily respect the current medical cannabis laws and many times innocent people get tangled into the web weaved by the government to catch drug dealers.
Skilled marijuana defense attorneys with The Bogan Law Firm, A Professional Corporation can assist if you have been charged with marijuana cultivation. There are various defenses available to persons charged with marijuana cultivation. A few areas always explored by our attorneys are:
Illegal Search and Seizure. If the police violated the 4th Amendment Rights of the accused, then the judge will suppress the evidence that was illegal taken. Ultimately this leads to a dismissal because the prosecutor cannot proceed without evidence.
Medical Marijuana Compliance. The accused had a medical cannabis recommendation for a doctor in California and the accused is growing a reasonable amount of marijuana in light of their medical condition. In the alternative if the marijuana is for other people, then the question becomes whether the accused is involved in a valid collective or cooperative.
False Accusations by Police. We have seen this occur in several cases where the home owner is not aware that their property was being used as a marijuana growing grounds. This is more common in the rural areas of California where the accused owns several acres if not hundreds of acres of land. This could also occur where the person is a guest of someone and is arrested by police because they are at the wrong place at the wrong time.
Person Use vs. For Sale. Where there is no medical marijuana defense or the defense is not very strong, the next question is whether the marijuana was nevertheless for personal use. If it was for personal use, sometimes we can negotiate a diversion program under California Penal Code 1000. Under those circumstances the accused completes a diversion drug program and the case is dismissed. Although for most purposes this plea is not considered a conviction, for immigration, family law, and licensing purposes it would be used against you.
Hire an aggressive and experienced Modesto and Stockton marijuana cultivation defense attorney. The Bogan Law Firm, A Professional Corporation can be reached at 209.565.3425.