California has established several laws to prevent any criminal activities related to marijuana. It would be best to learn about the laws related to marijuana so that you understand your rights if you are arrested for violating them. Even so, you cannot navigate these complicated laws without the help of an experienced defense attorney. Here at Foos Gavin Law Firm, we have an in-depth understanding of California marijuana laws. We are eager to help our clients achieve the best possible results in their marijuana-related charges in Sacramento.

Marijuana Laws in California

In California, marijuana laws have drastically changed over the years, starting from the decriminalization of possession until recent changes that involved adult use of marijuana. Over these years, several bills have come to pass that have liberalized the restrictions to California residents. Here is a detailed view of California marijuana laws.

Health and Safety Code 11357: Marijuana Possession for Personal Use

Under Health and Safety Code 11357, anyone aged 21 and older can possess up to 28.5 grams of marijuana for personal use. This law came into effect on 1st January 2018. Under this law, marijuana can only be consumed or smoked in private, with the property owner's consent. Therefore, your employer or landlord can prohibit the use of marijuana in a workplace or property in which you reside.

The passing of HSC 11357 does not mean that anyone can smoke marijuana in places where tobacco smoking is prohibited Although marijuana possession for personal use is legal in California, there are several ways you can violate Health and Safety Code 11357. The following are some of the crimes associated with this statute.

  1. Possession of Marijuana by a Minor

If anyone below 21 years is found to be possessing marijuana or concentrated cannabis, this becomes an infraction. An infraction will not result in prison or jail time, but might subject the defendant to the following:

  • A maximum fine of $100 if the defendant is 18 years and above;

  • 4 hours of counseling or drug education and a maximum of 10 hours of community service for the first-time offender under the age of 18;

  • 6 hours of counseling or drug education and a maximum of 20 hours of community service for a second-time offender under the age of 18.

  1. Possession of More than 28.5 grams of Marijuana

Since Health and Safety Code 11357 allows possession of 28.5 grams of marijuana for personal use, possession of more than this quantity makes it a misdemeanor offense. Excessive possession of marijuana for adult defendants or anyone aged 18 years or above is a California misdemeanor. The potential penalties include:

  • A county jail sentence of up to six months;

  • A maximum fine of $500.

If the defendant is aged below 18 years and is found to possess excessive marijuana, this becomes a California infraction. The potential consequences include a fine, attending drug counseling sessions and performing community service.

  1. Possession of Marijuana on a School Ground

Health and Safety Code 11357 also prohibits possession of marijuana inside or on a K-12 school ground during school hours or after-school programs. A violation is a misdemeanor. The potential penalties for violating this statute include:

  • A maximum fine of $250 for a first offense;

  • Drug treatment and community service for a defendant below 18 years.

Health and Safety Code 11358: Marijuana Cultivation Laws

Health and Safety Code 11358 outlines the laws involving the illegal cultivation of marijuana. However, this statute makes it unlawful to cultivate marijuana for other than personal use, as was outlined in Proposition 64, an initiative passed by the voters.

Under Proposition 64, it is legal to cultivate marijuana for recreational use if the grower is aged 21 years or older and cultivates a maximum of six plants. The cultivator must also follow all local ordinances and not grow more than six plants in a private residence.

This statute restricts partners or spouses who share a residence from cultivating more than six plants. Therefore, they should not have twelve plants, since this will be a violation of the statute. The term “cultivate” includes activities such as planting, cultivating, harvesting, drying or processing marijuana or any of its parts. Proposition 64 also permits people to grow the weed indoors or on their private property, in a locked space, and somewhere the plants are invisible to the public.

Penalties for Illegal Cultivation of Marijuana

Anyone accused of illegal marijuana cultivation is at risk of facing criminal penalties, receiving drug treatment, and can petition for resentencing under Prop 64.

  1. Criminal Penalties for Violating Health and Safety Code 11358

It is an infraction for someone aged 18-21 years to grow marijuana, regardless of the number of plants. This crime is punishable by a fine of up to $100. If you are 21 years or older and are found to be growing more than six plants, this becomes a California misdemeanor. The possible consequences include a maximum of six months in county jail and a maximum fine of $500.

You can face a California felony charge in certain situations. These situations include cultivating more than six plants and:

  • Having a history of a serious or a violent felony on your record;

  • Are a registered a California sex offender;

  • Have two or more prior convictions under this statute;

  • Have violated specific environmental laws while cultivating marijuana.

A felony conviction carries a sentence of a maximum of three years in county jail and a maximum fine of $10,000.

  1. Drug Treatment

According to Penal Code Section1000, some defendants charged with illegal marijuana cultivation can have their case diverted so that they can complete a drug treatment program. A person is eligible for Drug Diversion if he was arrested for cultivating excess marijuana and has no prior conviction. If you successfully complete the diversion program, your charge will then be dismissed.

  1. Resentencing Under Proposition 64

There were harsher penalties for illegal cultivation of marijuana before the passing of Proposition 64. Fortunately, defendants convicted before the law changed can apply for resentencing or dismissal of their charges. However, the court will determine whether the defendant meets the criteria needed for resentencing and can determine that re-sentencing will be denied because the individual is a risk to public safety.

In those cases in which the offender is in custody, often resentencing under Prop 64 allows the release of the offender from jail.

Health and Safety Code 11359: Marijuana Possession with Intent to Sell

The passing of Proposition 64 or Adult Use of Marijuana Act only allows marijuana possession for personal use. Therefore, possession for sale is restricted to adults aged 21 years or older licensed to sell recreational marijuana and medical marijuana. Consequently, it is illegal to sell marijuana without a license, and this would be a violation of Health and Safety 11359. Similarly, it is an offense for anyone other than a licensed seller to possess marijuana to sell it. However, although the offense was formerly a felony, now the illegal possession for sale of marijuana is a misdemeanor.

A prosecutor must prove several elements to prove that you possessed marijuana for sale. These elements are as follows:

  • You had a usable amount of marijuana in your possession;

  • You knew that the substance was a controlled substance;

  • You had the intention to sell marijuana without necessary government licenses.

Prosecutors will rely on your offer to sell marijuana to someone else as proof of guilt under this statute. They also rely on circumstantial evidence such as:

  • Presence of drug paraphernalia used in the sale of marijuana

  • Presence of marijuana packed in baggies

  • Possession of digital scales

  • Loose baggies to package the marijuana

  • An excessive amount of marijuana

  • Possession of unexplained cash and weapons in your place of arrest

  • Your history of selling drugs

  • Police witnessing you transacting a sale of marijuana.

Penalties for Possessing Marijuana for Sale

Possession of marijuana with intent to sell is a California misdemeanor. This brings a potential sentence of six months in county jail and a maximum fine of $500.

Defendants are at risk of a felony charge if they have a prior record of sex crimes or violent crimes, are repeat marijuana offenders, or intend to sell marijuana to minors. For a felony conviction, the potential consequences include 16 months, 2, or 3 years in county jail.

You might be eligible for a California misdemeanor probation rather than serving your jail time. If you are granted probation, the penalties may include:

  • Payment of restitution

  • Mandatory attendance at drug rehabilitation classes

  • Submitting to drug testing

  • Community service

  • A condition allowing search of your person, property, or residence by law enforcement without a search warrant.

Violation of any of these conditions could result in you being incarcerated for up to the maximum sentence of 6 months.

Health and Safety Code 11360: Sale of Marijuana without a License

Under Health and Safety Code 11360, it is illegal to sell, import, or transport for sale, any amount of marijuana without a valid state license. You can also be prosecuted under this statute if you merely aided or abetted the sale, import, or transportation of marijuana. Defendants who have constructive possession of the marijuana are also at risk of prosecution under this statute.

Penalties for Illegal Sale of Marijuana in California

Defendants accused of illegal sale of marijuana in California can be prosecuted with either a misdemeanor or a felony.

In most cases, defendants are charged with a misdemeanor. The potential punishment includes a maximum of six months in county jail and a fine of up to $500.

A defendant can face a felony charge under certain circumstances. These include:

  • Having a prior conviction for a serious or a violent felony, including sex crimes, vehicular manslaughter while intoxicated, or any sex crime that requires the offender to register as a sex offender;

  • Having two or more prior convictions under this statute;

  • An attempt to knowingly sell or furnish marijuana to a minor;

  • An attempt to import, attempt to import or transport more than 28.5 grams of marijuana into or outside California

A felony conviction for sale or transportation for sale of marijuana in California can include a potential punishment that includes:

  • A sentence of 2,3, or 4 years in county jail;

  • A fine up to $10,000;

  • Collateral consequences such as the obligation to disclose your conviction if asked in a job application and a lifetime ban against owning a firearm.

Jail Alternative

Defendants are not eligible for drug diversion as an alternative to jail time on a sales charge. Diversion is only available for illegal possession or cultivation of marijuana for personal use.

However, you might be sentenced to misdemeanor or felony probation as part of your sentence. If you are sentenced to probation, you will serve a maximum of one year in county jail.

Felony probation lasts for 2 years. During this time, you will have to follow certain restrictions and conditions such as:

  • Counseling;

  • Refraining from the use of drugs, including cannabis;

  • Community service;

  • Meeting with a probation officer at least once a month;

  • Fines of up to $10,000;

  • Up to a year in jail’

  • A condition of allowing search of your person, property, or residence by law enforcement, without a warrant.

Misdemeanor probation has similar requirements as felony probation. However, rather than formal probation, you will generally be placed on court probation for a period of one year. The difference is that you will not need to report to a probation officer.

Violation of the terms provided in your probation can prompt the judge to reinstate your jail sentence.

Redesignation or Resentencing Under Proposition 64

Anyone who received a felony sentence under Health and Safety Code Sections 11359, or 11360 before Proposition 64, may apply for resentencing. The court will grant re-sentencing it it is determined that you do not pose a risk to public safety. Resentencing Under Prop 64 can lead to an immediate release from jail, depending on how long you have served your sentence. In addition, re-sentencing will reduce your felony conviction to a misdemeanor.

Health and Safety Code 11361: Sale of Marijuana to a Minor

Under Health and Safety Code 11361, it is illegal to sell, give, or offer to sell or give marijuana to a minor. This statute also makes it unlawful to induce a minor to use marijuana or employ a minor to sell, give away, or transport marijuana.

California laws consider anyone below 18 years as a minor. Therefore, if you involve anyone of this age in peddling, selling, carrying, or giving away marijuana, you will be guilty under this statute.

Penalties for Sale of Marijuana to a Minor

Selling marijuana to a minor is a California felony. This crime is different from other marijuana-based crimes since the sentence is served in the state prison.

A sentence under this statute carries a penalty of 3, 5, or 7 years in state prison. However, there is an exception if the minor was at least 14 years old. In that case you will face a penalty of 3, 4, or 5 years in state prison.

You can also be eligible for felony probation, depending on your criminal history. Felony probation may entail serving up to one year in county jail, and up to two years on probation. During the probation, you will have to follow certain conditions such as:

  • Meeting with your probation officer;

  • Serving up to one year in county jail;

  • Paying a fine of up to $10,000;

  • Being subject to search and seizure;

  • Community service

  • Drug counseling

  • Prohibition of contact with minors.

Violation of any of these conditions might prompt the judge to order you to complete your prison sentence.

California Law on Concentrated Cannabis

California laws have established restrictions on the possession and sales of concentrated cannabis. Concentrated cannabis is a separate resin obtained from Cannabis Sativa. It is commonly known as hashish, hash, wax, or honey oil. It is also referred to as hash oil, wax, rosin, honey oil, butane honey oil, or marijuana resin.

The resin contains a psychoactive ingredient referred to as tetrahydrocannabinol (THC). It can appear in several forms, such as bricks, liquid, chunks, and semisolids. It is legal to possess concentrated cannabis for personal use as long as you possess no more than 8 grams. You can also produce it as long as you do not use chemical solvents such as butane.

Penalties for Violating Concentrated Cannabis Laws

There are several types of violations associated with concentrated cannabis in California. These violations vary depending on the kind of illegal activity related to the substance. Let's have a closer look at these offenses.

  1. Simple Possession

It is illegal to possess more than 8 grams of concentrated cannabis. The unlawful possession of concentrated cannabis is a California misdemeanor. This subjects the offender to up to 6 months in county jail and a maximum of $500 fine.

  1. Possession to Sell

Possession of concentrated marijuana to sell is a California misdemeanor for most offenders unless you have a state license to sell marijuana products. If you are convicted, the possible consequences include a maximum of six months in county jail.

However, you can face a California felony for possessing concentrated cannabis to sell if:

  • You have a prior conviction for a serious or a violent felony, or sex crimes that require you to register as a sex offender;

  • You have two or more prior misdemeanor convictions for possessing concentrated cannabis for sale;

  • You were involved, attempted, or connected with the sale of concentrated cannabis to someone below 18 years.

  1. Illegal Production of Concentrated Cannabis

The illegal production of more than 8 grams of concentrated cannabis is a California misdemeanor. The potential penalty includes a maximum of six months in county jail. If you use a toxic chemical such as butane in the production, the court might find you guilty of chemical extraction of hashish. This puts you at risk of a maximum fine of $50,000 and 3,5, or 7 years in the state prison.

  1. Illegal Sale or Transportation of Concentrated Cannabis

It is illegal to sell, possess for sales, or transport for sale hashish without a state license. This crime is a California misdemeanor with a sentence of a maximum of six months in county jail. You can also face a felony charge if you have:

  • A prior conviction for a serious or a violent felony, or a sex crime that requires you to register as a sex offender;

  • Two or more prior convictions for the sale or transportation of marijuana;

  • Prior charges for selling, attempting to sell, or furnishing hashish to a minor;

  • Prior charges for importing or transporting more than 8 grams of hashish out of California for sale.

California Law on Medical Marijuana

Medical marijuana is legal in California under the Compassionate Use Act of 1996. This Act was passed into law after the approval of California Proposition 215, an initiative of the voters. Under this Act, under certain conditions, people are entitled to use medical marijuana. These people include anyone recommended or approved to use marijuana by a physician to treat a serious medical condition.

Under this Act, "serious medical" conditions include arthritis, chronic pain, migraine, severe nausea, anorexia, and cancer. It also involves any condition that significantly limits a person's ability to conduct major life activities or causes severe harm to the safety or mental health of an individual.

The Compassionate Use Act prevents prosecution of patients, physicians, and primary caregivers from medical marijuana-related prosecutions. This Act not only protects doctors from criminal sanctions, but it also protects them from professional disciplines by their medical boards.

Therefore, Health and Safety Code 11357 and 11358 (simple possession and cultivation) cannot be used against patients or a patient's primary caregiver if possessing or cultivating marijuana for medical purposes.

This Act also prevents prosecution for legally transporting medical marijuana. However, it is illegal to grow or possess excess marijuana or, as a primary caregiver, to use marijuana for medical purposes unless they have a medical recommendation from a physician. Therefore, a primary caregiver or patient can:

  • Legally possess a maximum of eight ounces of dried marijuana;

  • Grow up to six mature or 12 immature marijuana plants;

  • Possess or grow an excess amount that is consistent with the current medical needs of a patient upon his or her doctor's recommendation.

There has been much litigation as to what constitutes a legal amount of medical marijuana. Ultimately, the Courts have found that the individual has the burden to demonstrate that the seized amount of marijuana was consistent with their current medical necessity. Such proof, may include the testimony of a doctor, or an expert in the use and quantities necessary to treat medical conditions.

Finally, this Act is meant to ensure the safety of others and prevent non-medical use of marijuana. Therefore, medical marijuana cannot be used as a defense to prosecution for driving under the influence of drugs. The section also restricts the use of medical marijuana as a free pass to allow non-patient to use a patient's supply of the substance. It also prohibits using medical marijuana within 1,00 feet of a youth center, recreational area, or a school.

Vehicle Code 23222(b): Driving with Marijuana

Under Vehicle Code 23222(b), it is illegal to drive while in possession of loose marijuana. This law is referred to as the open container law since it makes it unlawful to drive while possessing marijuana that is not in a closed container. The marijuana must be contained it its original store packaging, or in a sealed container, with the seal unbroken.

Driving with marijuana is a California infraction and can subject you to a maximum fine of $100. However, if you are found to have more than 28.5 grams of marijuana or 8 grams of hashish, this becomes a California misdemeanor, and you might be charged under Health and Safety Code 11357. Moreover, possession of unsealed marijuana will provide probable cause to law enforcement to search your vehicle for other contraband.

If you are a minor, driving with an open marijuana container or package is punishable with mandatory attendance of a drug education program or community service.

Find a Drug Crimes Attorney Near You

There are many prohibitions against the possession or sales of marijuana despite the legalization of recreational marijuana. If you face any charges related to marijuana, you should seek professional legal help to protect your rights. At Foos Gavin Law Firm we are well-versed in all California marijuana laws and pride ourselves on top-notch legal representation. Contact us at 916-779-3500 or via email at david@foosgavinlaw.com and schedule a free consultation with one of our attorneys.