California Marijuana/Cannabis Laws

If you have been charged with a criminal marijuana related offense, you should contact a criminal defense attorney to discuss your case and any defenses that you may have.  Although recent changes in California law have resulted in decriminalization of many cannabis offenses and reduced the penalties for others, there are still California cannabis laws that can result in jail time.  Generally speaking, simple possession of less than an ounce of marijuana, or less than eight grams of concentrated cannabis, or cultivation of six marijuana plants or less, is not illegal for adults over the age of 21 under California law.  However, there are legal restrictions on the possession, use and growing for personal use of marijuana. 

Sale and possession for sale remain illegal unless you are licensed to sell under California Business and Professions Code 26000 and compliant with local ordinances.  A first offense for sale and possession for sale is a misdemeanor for many, but not all defendants.  Defendants with certain prior convictions may be charged with a felony and the sale to minors or use of minors in the sale of marijuana results in much stiffer penalties.

Proposition 64 – The Control, Regulate and Tax Adult Use of Marijuana Act

In 2016, the voters of California passed Proposition 64 – The Control, Regulate and Tax Adult Use of Marijuana Act.  With the passage of the law, California joined other states, including Washington, Oregon, Colorado and Alaska, which had already decriminalized the simple possession and personal use of marijuana.  There are now as many as eighteen states in which adult recreational use of marijuana has been decriminalized under state law.

California voters had already passed the Compassionate Use Act in 1996, which allowed for and regulated the use of medical marijuana.  Proposition 64 did not change these medical marijuana regulations.  It decriminalized recreational use and cultivation of small amounts of marijuana for adults over the age of 21.  In addition, Proposition 64 greatly reduced the penalties for most defendants regarding possession and cultivation of larger quantities and possession for sale.

Health and Safety Code section 11362.1

The highlight or Proposition 64 is codified in California Health and Safety Code section 11362.1.  This section provides that:

“(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:

(1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of cannabis not in the form of concentrated cannabis;

(2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of cannabis in the form of concentrated cannabis, including as contained in cannabis products;

(3) Possess, plant, cultivate, harvest, dry, or process not more than six living cannabis plants and possess the cannabis produced by the plants;

(4) Smoke or ingest cannabis or cannabis products; and

(5) Possess, transport, purchase, obtain, use, manufacture, or give away cannabis accessories to persons 21 years of age or older without any compensation whatsoever.” 

See California Health and Safety Code section 11362.1.

There are some important limitations to notice about this law.  First, it decriminalizes recreational marijuana under, “state or local law.”  The voters of California do not have the power to alter federal drug laws by way of a state ballot initiative and the passage of Proposition 64 had no effect on the illegality of marijuana under federal law.  Although the prosecution of marijuana possession cases may not be a high priority for federal agencies, marijuana and concentrated cannabis are still illegal under federal law.  Furthermore, Proposition 64’s reduced penalties for possession of larger quantities and possession for sale do not affect federal sentencing guidelines for these crimes.  If you are caught in the middle of a larger federal drug investigation and are found to be in possession of marijuana, you face the prospect of federal law enforcement attempting to leverage the stiffer federal penalties against you in an effort to obtain information and cooperation.  The bottom line is that Proposition 64 does not restrict the ability of federal agencies to enforce federal drug laws in any way.

Other important limitations to Proposition 64 are referenced at the beginning of the first sentence of Health and Safety Code section 11362.1:  “Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45…”  This clause means that recreational marijuana use is still limited by those sections.

Health and Safety Code section 11362.2 provides that any cultivation or planting must adhere to local ordinances and regulations.  It must not occur in an area visible to the public and the six-plant limit applies to an entire residence.  You may only have six living plants per residence.  The fact that four people may reside at one particular location does not mean that you can have twenty-four plants. 

Health and Safety Code section 11362.3 restricts where you can ingest or smoke cannabis products.  For example, you cannot smoke marijuana in public, except as provided in Business and Professions Code 26200.  You cannot smoke marijuana in any location where the smoking of tobacco is prohibited.  You cannot smoke within 1000 feet of a school or day care center or possess any cannabis product upon the grounds of a school or day care center.  You cannot have an open container of cannabis or smoke or ingest cannabis while driving or riding as a passenger in a motor vehicle, boat or aircraft. 

Proposition 64 further provides that cannabis and cannabis products that are possessed lawfully pursuant to Health and Safety Code section 11362.1 may not be seized as contraband by law enforcement.  In addition, lawful possession or use may no longer act as a basis for a law enforcement detention, search or arrest.

Health and Safety Code 11357 – Possession of Marijuana

Simple possession of marijuana remains illegal under California law for people under the age of 21.  However, possession of less than one ounce (28.5 grams) of marijuana and possession of less than 8 grams of concentrated cannabis is punished as an infraction – an offense for which jail time is not a possible penalty. 

A first offense for a minor in possession of less than an ounce of marijuana and less than 8 grams of concentrated cannabis requires completion of four hours of drug counseling and ten hours of community service.  A second offense requires six hours of drug counseling and twenty hours of community service. 

An adult who is under the age of 21 is punished by a $100 fine.

As long as the prosecution cannot prove intent to sell, possession of more than one ounce (28.5 grams) of marijuana or more than 8 grams of concentrated cannabis by a minor remains an infraction, but requires additional counseling and community service. 

Possession of more than one ounce (28.5 grams) of marijuana or more than 8 grams of concentrated cannabis by an adult is punished as a Misdemeanor, with a maximum penalty of a $500 fine and six months in county jail.

Possession of less than one ounce (28.5 grams) of marijuana or more than 8 grams of concentrated cannabis by an adult is legal under California law unless it is possessed on the grounds of a school or the prosecution can prove intent to sell.

Health and Safety Code 11357.5 – Possession of Cannabinoid Compounds

Health and Safety Code section 11357.5 makes it a misdemeanor to sell, dispense, distribute or furnish a synthetic cannabinoid substance. 

Simple possession of a synthetic cannabinoid substance is an infraction, punishable by a fine of $250 for a first offense.  A second offense is punishable as a misdemeanor (jail time and/or $500 fine) or an infraction. A third offense is a misdemeanor punishable with up to six months of jail time and a $1,000 fine.

Health and Safety Code section 11357.5(c) contains a list of qualifying compounds.

Health and Safety Code 11358 – Cultivation of Marijuana

A person under the age of 18 convicted of cultivating marijuana is guilty of an infraction (no jail time). A first offense requires completion of four hours of drug counseling and ten hours of community service.  A second offense requires six hours of drug counseling and twenty hours of community service. 

An adult who is under the age of 21 and who is convicted of cultivating six or less marijuana plants is guilty of an infraction and may be fined $100.

An adult over the age of 21 may be charged with a misdemeanor for the cultivation of more than six living cannabis plants.  This offense is punishable by up to six months in jail and a fine of $500.

For certain offenders, this crime may be charged as a felony, punishable by up to three years in custody.  

These offenders include any defendant who:

• Has been previously convicted of certain sex offenses or violent felonies;
• Is convicted of a third offense for cultivating more than six cannabis plants; or,
• In the course of the charged offense, violated certain sections of the Water Code or Fish and Game Code related to water diversion or discharge, hazardous waste disposal or endangered species.

Cultivation includes planting, harvesting, drying or processing.

Health and Safety Code 11359 – Possession for Sale of Marijuana

In order to prove that a defendant committed the crime of possession for sale of a marijuana, the prosecution must prove that:

• The defendant possessed marijuana.
• The defendant knew that he or she possessed the marijuana.
• The defendant knew that what he or she possessed was a controlled substance.
• At the time that defendant possessed the marijuana, he or she intended to sell it.

Punishment for Possession for Sale of Marijuana

Defendants under the age of 18 are punished in the same manner as provided in section 11357(b)(1).  For adults, possession for sale of marijuana is punished as a misdemeanor, generally, and is punishable by up to six months in jail and a fine of $500.  The crime is punishable as a felony if any of the following are true:

• The defendant has prior convictions for certain sex offenses or violent felonies;
• The charged offense is the defendant’s third conviction for this offense
• The offense involved the knowing sale of cannabis to a minor
• The offense involved the hiring or use or assistance of a minor to facilitate the sale of marijuana

Health and Safety Code 11360 – Sale or Transportation for Sale of Marijuana

In order to prove that a defendant committed the crime of sale or transportation for sale of a marijuana, the prosecution must prove that:

 The defendant sold or gave away marijuana, OR transported marijuana with the intent to sell it or have someone else sell it.

• The defendant knew that he or she possessed the marijuana.
• The defendant knew that what he or she possessed was a controlled substance.

The same circumstances that permit the filing of a felony charge for violation of Health and Safety Code section 11359 also apply to this section.  Transporting or giving way less than an ounce of marijuana is an infraction, punishable by a fine under Health and Safety Code section 11360(b).