The state of California has legalized the medical use of marijuana. However, possession for mere recreational use, as well as possession with the intent to sell, still be can considered offenses.
The California’s Health and Safety Code under its section 11357 prohibits the possession of marijuana for personal use.
Simple possession 28.5 grams or less (approximately one ounce) of marijuana is a non-criminal infraction, which confers a fine of $100 and no jail time.
Other than that, are crimes under the HS 11357:
- Possession of more than 28.5 grams.
- Possession of marijuana on school grounds (K-12), or
- Possession of any amount of concentrated cannabis.
The following chart lists the penalties of each marijuana related offense.
|HS 11357 Offense||Type of Penalty||Jail Time||Max. Fine|
|28.5 grams or less||infraction||none||$ 100|
28.5 grams or less
on school grounds
by someone 18
years of age or older
|misdemeanor||10 days||$ 500|
28.5 grams or less
on school grounds
by someone under
18 years of age
1st offense: none
2nd offense: 10 days
|More than 28.5 grams||misdemeanor||6 months||$ 500|
16 months or
The section 11358 of the California’s health and Safety Code regulates the grow, harvest or process of marijuana.
Despite legal marijuana users or primary caregiver, is not legal to a) plant, b) cultivate, c) harvest, d) dry, or e) process marijuana or any part of the marijuana plant.
According with HS 11358, any of the actions mentioned above consists in a felony in the state of California, punishable with a penalty of 16 months, or two to three years in county jail.
Possession with the intent to sell
California’s Health and Safety Code under section 11359 states as a felony the possession of any amount or type of marijuana with the intent to sell. The intent to sell marijuana is proven through circumstantial evidence, such as:
- A large quantity of marijuana.
- The presence of items such as baggies and scales.
- Pot divided into multiple baggies or containers.
- The presence of cash and/or weapons.
- The opinion of the arresting officer that the marijuana was for sale.
The penalty for possession of marijuana with the intent to sell is of 16 months, or two to three years in county jail.
Sale, gift, transport, or import
In order to prevent the movement, transportation and transfer of marijuana, the state of California relies on the broad definition of its health and Safety Code section 11360.
HS 11360 states that it is unlawful to do or attempt to do the following actions regarding marijuana:
- Transport for sale
- Import into California
- Give away
Despite exceptions applicable to medical marijuana and their primary caregivers, transporting or giving away more than 28.5 grams of marijuana (other than concentrate cannabis) is a misdemeanor in the state of California, punishable with 16 months, or two to 3 years in county jail.
The following chart demonstrates the relation of quantity and penalty
regarding transportation offenses of marijuana:
|HS 11357 Offense||Type of Penalty||Jail Time||
Gift or transport of
28.5 grams or less
(other than concentrated
Gift/transport of more
than 28.5 grams
or any amount of
2, 3 or 4
any amount of marijuana
2, 3 or 4
Selling marijuana to minors
It is a felony in the state of California to anyone 18 years or older to sell marijuana to minors according with California’s Health and Safety Code section 11361. The same section also states that it is also a felony to use a minor unlawfully to:
- Give away.
- Prepare for sale.
- Peddle any amount or type of marijuana.
Penalties are served in California’s state prison, and not at a county jail, and jail time will vary depending on the minor's age.
- If the minor involved is under 14 years of age, the penalty is: three, five or seven years in state prison.
- If the minor is over 14, but less than 18, the penalty is: three, four or five years in state prison.
Commonly known as “hashish” or “hash”, “concentrated cannabis” is the separated resin (whether crude or purified) obtained from the marijuana plant.
Even though the concentrated cannabis is considered to be marijuana under California Law, allowing people that are already entitled to cultivate or transport the medical marijuana to do the same with concentrated cannabis, for non-medical marijuana users, The California Law imposes harsher penalties when the offense relates to the concentrated cannabis.
Except the simple possession of concentrated cannabis, all other offenses are punished as a felony.
The extraction of concentrated cannabis with the use of a toxic chemical is punishable with 1) a fine of up to $50,000 and 2) three, five or seven years in state prison.
Driving with marijuana
The possession of marijuana, up to 28.5 grams, while driving it's prohibited by California Vehicle Code 23222(b). The offense is considered an infraction and the penalty is up to a $100 fine, separated from and in addition to the penalty for possessing marijuana under California health and Safety Code 11357.
The California’s Compassionate Use Act of 1996, known as the “CUA” and a result of the approval of the Proposition 215, set forth in the California Health and Safety Code 11362.5 and its subsequent sections, legalizing the medical marijuana.
Therefore, if a doctor recommended or approved the use of marijuana for the treatment of a serious medical condition such the following, one is legally entitled to do it.
- Multiple sclerosis.
- Any other debilitating condition, including chronic pain or serious nausea.
The definition of primary caregiver is the one that is:
- Designated for that purpose by the patient.
- Are consistently responsible for the patient's housing, health, and/or safety.
As long as the marijuana is 1) for the patient’s personal use, and 2) in any amount reasonably related to the patient’s current medical needs, medical marijuana users and their primary caregivers are exempt from laws prohibiting:
- Simple possession.
The sale, the processing or the cultivation of more than the reasonably amount related to the patient's use still prohibited under California’s laws.
Drug Diversion Programs
Non-violent first and second-time offenders, charged with the simple possession or cultivation of marijuana for personal use, might be eligible for a drug diversion program, which means that the offender can be offered a drug treatment program instead of jail time.
Examples of drug diversion programs in California would be:
- Deferred entry of judgment (DEJ) - California Penal Code 1000 PC.
- Proposition 36.
According to Federal Law, more specifically, Title 21 of the unites States Code, regarding the “Controlled Substances Act”, marijuana still classified as a Schedule 1 hallucinogenic drug, meaning that the government believes that the drug has a potential or abuse and therefore is not accepted for medical use.
Because the CSA does not contain any exception for the medical use of marijuana and because it takes precedence over the law of California, one that sells, transports, or give away marijuana is violating the federal law.
Penalties under federal law.
Simple possession of marijuana is punishable by:
- A fine of up to $1,000.
- Up to one year in federal prison.
Cultivation, possession with intent to sell, and/or sale of less than 50 pounds of marijuana or 50 plants is punishable by:
- Up to five (5) years in federal prison.
- A fine of up to $250,000.
Fines and periods of incarceration increase for greater quantities of marijuana or conviction of subsequent offenses. Also, the offender might be ordered to reimburse the government “reasonable costs” of the investigation and prosecution.
Because there is this conflict between federal and California’s law, it might be unclear whether someone will be punished under federal law even though the person is based in California and is legally permitted to use, possess r cultivate medical marijuana.
Nevertheless, federal law applies on federal property within the state of California. Examples of federal property include:
- Public airports.
- Federal buildings.
- Post offices.
- National parks.
- Federal courthouses.
If a violation of marijuana law occurs on federal property, it can be punished under federal law. And federal penalties are generally greater for drug crimes that occur on federal property than those that occur elsewhere but are, nevertheless, prosecuted under federal law
The U.S. Department of Housing and Urban Development (“HUD”) allows local housing authorities to set their own policies on medical marijuana use.3
Federally assisted housing can legally be denied to medical marijuana users. And although rarely enforced, the use of medical marijuana in HUD housing can subject patients to the termination of other federal benefits, including food stamps.
For the purposes of the Immigration and nationality Act, the sale, or even the possession with the intention to sell, is considered to be an “aggravated felony”, regardless if the conviction is under California or federal law, which may be punishable with deportation.
Criminal Defense Lawyers
Medical marijuana cases are common in San Diego. San Diego Criminal Attorney have extensive experience with these cases, in both state and federal court. If you have been arrested or charged in San Diego County with marijuana cultivation, or possession with intent to sell, immediately contact our law firm. We will provide you an overview of relevant laws and will discuss opportunities for a strong defense.