California Marijuana Laws

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California Marijuana Laws - 3 Things You Need to Know

As of June 2015, twenty-three states and the District of Columbia have laws legalizing marijuana in some form of usage.

Currently, California has legalized marijuana use for medical purposes. Legalizing marijuana for recreational use will be on the 2016 ballot. Depending on the outcome, there could be many changes coming our way.

Until a final determination is made on the 2016 ballot, recreational use of marijuana remains unlawful in the state of California.  Selling marijuana, or possessing marijuana with the intent to sell it, may subject you to criminal penalties. 

California Health and Safety Code 11357 - Possession of Marijuana for Personal Use

California Health and Safety Code 11357 – Prohibits possession of marijuana for personal use. This is also referred to as “simple possession”.

As long as you do not have more than 28.5 grams (about an ounce) of marijuana / cannabis then it is considered a non-criminal infraction. The punishment for this is a $100 fine. There is no jail time associated with this infraction.

Therefore, if you have one ounce of marijuana or less, for your personal use, you are not committing a crime, but may be punished by a fine of $100. However, concentrated cannabis like hashish / hash / hash oil does not fall into this category.

It will be considered a crime if you have possession of more than 28.5 grams, if you possess any amount of marijuana on school grounds ( K-12), or if you possess any amount of concentrated cannabis.

California Marijuana Punishments for Possession of Marijuana for Personal Use

Possible Punishments: 
  • A non-criminal infraction for possessing less than 28.5 grams of marijuana has a maximum fine of $100.
  • If you possess 28.5 grams or less of marijuana on school grounds and you are 18 years of age or older, it is considered a misdemeanor. This means there is a possible maximum fine of $500 and a possible jail time of 10 days. 
  • If you possess 28.5 grams or less of marijuana on school grounds and you are less than 18 years old, then it is still considered a misdemeanor. Your first offense will not have any jail time associated with it, but it will have a maximum fine of $250. If you have a second offense, then you have the possibility of facing 10 days in juvenile detention and will also face a possible maximum fine of $500. 
  • If you possess more than 28.5 grams of marijuana you are facing much greater jail time and much higher fines. This type of crime is also known as a “wobbler” because prosecutors can choose to charge you with either a misdemeanor or a felony depending on the specific facts of your case and your criminal history. In the event you are charged with a “wobbler felony”, you can petition the court at a later time to have your felony conviction reduced to a misdemeanor. 
                        -------> In the event the prosecutor charges it as a misdemeanor, you will face a maximum fine of $500 and a possible jail time of 6 months. 
                        -------> In the event the prosecutor charges it as a felony, you will face a maximum fine of $500 and possible jail time of one year. 
  • Possession of concentrated cannabis is also treated as a “wobbler” 
                       -------->In the event the prosecutor charges it as a misdemeanor, you will face a maximum jail time of 16 months. 
                       -------->In the event the prosecutor charges it as a felony, you will face a maximum jail time of two-three years.

Growing Marijuana in California - Cannabis Cultivation in Cali
California Health and Safety Code 11358 – only gives permission to legal medical marijuana users and primary caregivers to grow, harvest, or process any part of the marijuana plant.

If you violate this health and safety code by growing, harvesting or processing any part of the marijuana plant without being a designated primary care giver or a recognized legal medical marijuana user, you may be facing a felony charge. The punishment for a first time offense is time in the county jail ranging from 16 months to 3 years.

Possession of Marijuana in California with Intent to Sell

California Health and Safety Code 11359 forbids individuals from possessing any amount or type of marijuana, if  they intend to sell it.

Violating this health and safety code can result in a felony charge. The punishment for a first time offense is time in the county jail ranging from 16 months to 3 years.

Prosecutors will prove your intent to sale by relying on circumstantial evidence. Examples of such circumstantial evidence include:
  • Finding items commonly used in the sale of marijuana, such as baggies and scales
  • A large quantity of marijuana
  • Marijuana which has already been divided into numerous individual bags or containers, presumably for resale
  • The opinion of the arresting officer, stating he believed the marijuana was for sale (8)
  • The presence of large quantities of cash and/or weapons 

TRANSACTIONS WITH MARJIUANA (SALE, GIFT, TRANSPORT, OR IMPORT OF CANNABIS OR HASHISH)

California Health and Safety Code 11360 is a general law, prohibiting the movement or transfer of marijuana.

Unless you fall into one of the limited exceptions, you may not: 
  • Import marijuana to California
  • Sell marijuana in California
  • Transport marijuana within California
  • Furnish and/or administer marijuana to an individual
  • Give away marijuana in California 
  • Offer marijuana to others

Selling Marijuana to a Minor in California - California Health and Safety Code 11361

California Health and Safety Code 11361 prohibits anyone 18 years or older to sell marijuana to a minor. A violation of this law will result in a felony charge. It will also be considered a felony if you use a minor to carry, sell , transport, give away, furnish, administer, prepare, or peddle any amount or type of marijuana.

Punishment for violating California Health and Safety Code 11361 include time spent in California State Prison (instead of county jail).  
  • If the minor involved is less than 14 years old, the penalty will be three to seven years in state prison. 
  • If the minor involved is 14-17 years old, the penalty will be three to five years in state prison.

Concentrated Cannabis - Hashish Laws in California

Concentrated cannabis, also known as “hashish” or “hash”, is the separated resin acquired from the marijuana plant.  Since concentrated cannabis is considered to be marijuana, individuals already entitled to possess, cultivate or transport medical marijuana may also do the same with concentrated cannabis.

However, if you are a non-medical marijuana user, or if you are not otherwise entitled to possess, cultivate or transport medical marijuana, then you face must stricter punishments for possessing, growing or selling concentrated cannabis than you would for doing the same with other forms of marijuana. Most crimes involving concentrated cannabis are punished as a felony.

Furthermore, if you produce the concentrated cannabis yourself by using a toxic chemical ( like butane), you could be found guilty of violating California Health and Safety Code 11379.6 which prohibits the chemical extraction of a controlled substance. The penalty for violating this health and safety code is a fine up to $50,000 AND three – seven years in state prison.  This punishment will be compounded with any other punishment you may receive for processing marijuana, under California Health and Safety Code 11358.

Driving with Marijuana / Weed / Pot in Your Car or Vehicle
California Vehicle Code 23222(b) punishes individuals caught driving with up to 28.5 grams (about one ounce) of marijuana in their car. A violation of this code is considered an infraction and may be punished with fines up to $100.

This citation is typically made in conjunction with a citation for violating California Health and Safety Code 11357, possession of marijuana. Each citation has its own associated punishment. 

California Medical Marijuana Laws

The Compassionate Use Act of 1996 (CUA) came into effect when Californian voters approved Proposition 215, making medical marijuana legal. The specifics of CUA can be found in California Health and Safety Code 11262.5.

How do you qualify as an individual entitled to legally use medical marijuana? A doctor must recommend and/or approve marijuana as a treatment for a serious medical condition. Such conditions include:  AIDS, Anorexia, Arthritis, Cancer, Migraines, Multiple Sclerosis, Seizures, or any other debilitating condition consisting of chronic pain or inducing serious nausea.

A primary caregiver is an individual designated by the patient to be the individual primarily responsible for their care AND is an individual who is consistently responsible for the patient’s housing, health, and/or safety.

Associated Exemptions:
  • Medical Marijuana Users and their designated primary care givers are allowed simple possession of marijuana, the cultivation of marijuana, the transportation of marijuana, and the administration of marijuana to a qualifying medical marijuana patient.  
  • These exemptions are applicable so long as the marijuana is for the patient’s personal use and is in amounts reasonably related to the patient’s current medical needs. 

Medical Marijuana Dispensaries – California law permits the distribution of medical marijuana through non-profit medical marijuana dispensaries, collectives or cooperatives, by giving the marijuana to the medical marijuana patients and/or their primary caregivers, or selling it to them “at cost”.

How to Avoid Jail Time for Marijuana Crimes in California

California has two different drug diversion options:

DEJ – Deferred entry of judgment (California Penal Code 1000) - Available to non-violent first and second-time offenders who are arrested either for simple possession of marijuana (less than 28.5 grams) or the cultivation of marijuana for personal use.

In order to take advantage of this diversion program, you must plead guilty to the charges and file a presentencing petition with the court. If the judge grants your petition, your sentencing will be deferred while you receive drug treatment lasting between 18 months and three years. Once you successfully complete the drug treatment program, the judge will dismiss your case.

You may not take advantage of the DEJ program if:
  • You have prior drug convictions
  • You have ever had probation or parole revoked
  • You were ever found non-compliant with your probation or parole; or 
  • You have received a DEJ or been convicted of a felony with in the past 5 years. 

Proposition 36 – the “ Substance Abuse and Crime Prevention Act of 2000” requires the Judge to sentence eligible offenders to drug treatment instead of jail, without requiring them to plead guilty an go through the DEJ process.

You are an eligible offender if: 
  • You are a non-violent first or second-time offender; and
  • You are accused of simple possession of drugs

Proposition 36 does not apply to charges for cultivation of marijuana. However, you may still be eligible for Proposition 36, even if your petition for DEJ has been denied.

Federal Marijuana Laws and Implications
The Controlled Substances Act (CSA), found in Title 21 of the United States Code, categorizes marijuana as a Schedule 1 hallucinogenic drug. In other words, the government believes marijuana has a high potential for abuse and does not believe marijuana is acceptable for medical purposes.

Federal law has precedence over state law. As a result, when you sell, give away, grow, or transport marijuana, you are also violating federal law. This hold true, even if you qualify as a medical marijuana user or primary care giver under California law.

Punishments - Federal law punishes marijuana-related offenses much more severely.

For example, a first offense for simple possession of marijuana can be punished by fines up to $1,000 and 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 of marijuana can be punished by fines up to $250,000 and up to five years in federal prison.

Punishments, both fines and years spent in prison, increase relative the quantity of marijuana involved and/or quantity of prior offenses.

These above punishments are compounded by the fact, that if convicted of any federal drug offense, the judge may also order you to reimburse the government its “reasonable costs” incurred for investigating and prosecuting your case.

*Keep in mind * 

Federal law applies to federal property located within the State of California – California law will be inapplicable if you are violating a marijuana associated law in places, such as:
  • Federal  buildings
  • Public airports
  • Post offices
  • Federal courthouses 
  • National parks

The U.S. Department of Housing and Urban Development ( HUD) permits local housing authorities the right to set their own policies on medical marijuana use. As a result, Federally assisted housing can legally be denied to medical marijuana users and the use of medical marijuana in HUD housing can subject patients to the termination of their other federal benefits, such as food stamps. 

Immigration Consequences of Marijuana Crimes or Convictions in California and the United States

The Immigration and Nationality Act makes the sale of marijuana, or the possession with intent to sell marijuana, an “aggravated felony” regardless of whether your conviction was under state law or federal law.

Conviction of an aggravated felony has serious immigration consequences, including deportation. If you have been accused of a crime involving marijuana, and have not yet become a naturalized citizen, it is highly recommended you consult with an experienced criminal defense attorney.

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