California Marijuana Law and Penalties

CALIFORNIA MARIJUANA LAW AND PENALTIES

There has been much recent publicity about the rapidly increasing public opinion in favor of stopping American drug prohibition, especially the drug war against marijuana. Key examples of this shift in public opinion are the changes to the law in Colorado and Washington State that legalized marijuana. (Pew Research Center [April 2013] “Majority Now Supports Legalizing Marijuana,” Brookings Institute [May 2013]: “The New Politics of Marijuana Legalization: Why Opinion is Changing“).

Although marijuana arrests in California have declined, it would not be correct to believe that there are few or no penalties for marijuana. This would be a dangerous mistake. A recent document prepared by a group of U.S. Mayors notes that there were 757,969 marijuana arrests nationwide in 2011. In California alone there were 14,100 marijuana arrests for growing, manufacture or sales in the same year.  Unless you can establish a legal defense to the charges, the drug wars are alive and well in much of California. Trafficking in marijuana remains a felony in California under State and Federal law. The medical marijuana exceptions to the state criminal code are not as clear and concise as they should be nor do they give much detailed direction to a growing industry.

California pioneered changes in marijuana law with the passage in 1996 of Proposition 215, also known as the Compassionate Use Act. California Compassionate Use Act 1996, Cal. Health and Saf. Code, § 11362.5 (1996) (codifying voter initiative Prop. 215) This proposition, still in effect today, authorizes the use, possession and cultivation of marijuana for medical purposes for qualified patients with a recommendation from a physician. The same legal protection was extended to primary caregivers of patients. Physicians were also granted protection for making marijuana recommendations.

In 2003 California passed Senate Bill 420 which expanded legal protections for medical marijuana. Cal. Health and Saf. Code, §§ 11362.7 – 11362.83 (2003) (codifying SB 420) These expansions included establishing a right for patients and caregivers to associate collectively or cooperatively to cultivate medical marijuana and authorizing State identification cards for users of medical marijuana. Senate Bill 420 also sought to set limits on the amount of marijuana that may be cultivated or possessed. But these limits were later modified by the California Supreme Court in People v. Kelly (2010) 47 Cal. 4th 1008, 222 P.3d 186, 103 Cal. Rptr. 3d 733.

The next major development in the law occurred on January 1, 2011 when CA State Senate Bill 1449 became effective. The effect of Bill 1449 was to reduce the charge of marijuana possession of up to one ounce from a misdemeanor to an infraction, similar to a traffic violation, with a $100 fine and no mandatory court appearance or criminal record.

So as of June 2013, why are patients still being arrested for marijuana in California? Why are everyday people and local growers having their homes searched by police? Why are marijuana dispensaries being raided and put out of business? Why are business and property owners being forced to cease and desist all activities connected with marijuana or face forfeiture of their property? The quote “when injustice becomes law, resistance becomes duty” often applies in these cases. One form of this resistance is jury nullification.

But despite the fact that a majority of Americans now are in favor of ending a failed policy of marijuana prohibition, the current reality is that many such laws remain on the books and are enforced every day with the full force of government power.  Here is a summary of these California laws and penalties for marijuana related crimes. The below information is from: NORML California Penalties.

Simple Possession of Marijuana

28.5 grams or less: Infraction: No Jail/$ 100
28.5 grams or less, over 18 years, and occurred on school grounds: Misdemeanor: 10 days/$ 500
28.5 grams or less, and under 18 years: Misdemeanor: 10 days/$ 250
More than 28.5 grams: misdemeanor: 6 mos/ $ 500

With Intent to Distribute Any Amount of Marijuana Felony: 16 mos – 3 years
Sale or Delivery of Any Amount of Marijuana Felony: 2 – 4 years

Gift of 28.5 grams or less Misdemeanor: No Jail/$ 100
Over 18 years to an Individual 14-17 years Felony: 3 – 7 years

Cultivation of Any Amount Felony: 16 mos – 3 years

HASH or CONCENTRATES
Possession Felony: 1 year/$ 500
Unauthorized Manufacture Felony: 16 mos – 3 years/$ 500
Chemical Manufacture Felony: 3 – 7 years/$ 50,000

PARAPHERNALIA
Sale, Delivery, Possession with Intent, and Manufacture with Intent Misdemeanor: 15 days – 6 mos/$ 500
Involving a Minor at Least 3 Years Junior Misdemeanor: 1 year/$ 1,000

FORFEITURE
Vehicles and other property may be seized for controlled substance violations.

Miscellaneous
Using a minor in the unlawful sale or transport of marijuana is a felony punishable by 3-7 years imprisonment. Inducing a minor to use marijuana is also a felony punishable by 3-7 years imprisonment.
Any violation of the California Uniform Controlled Substances Act results in a fine up to $150.
A person who participates in the illegal marketing of marijuana is liable for civil damages.
It is a misdemeanor to loiter in a public place with the intent to commit certain controlled substances offenses.
A controlled substance conviction can result in suspension of driving privileges.
Penalty Details
Marijuana is a Schedule I hallucinogenic substance under the California Uniform Controlled Substances Act.
See:
California Health & Safety Code § 11054(d)(13)
Possession for Personal Use
Possession of up to and including 28.5 grams of marijuana is an infraction punishable by a fine of $100. Possession of more than 28.5 grams is a misdemeanor punishable by up to 6 months imprisonment and/or a fine up to $500. If the amount possessed is 28.5 grams or less but the person is 18 years of age or older and the possession occurred on school grounds, the person is guilty of a misdemeanor punishable by up to 10 days imprisonment and/or a fine up to $500. If the offender was younger than 18 years of age, then the offense is a misdemeanor punishable by a fine up to $250 for the first offense and a fine up to $500 or commitment to a detention center for up to 10 days.
See:
California Health and Safety Code § 11357
Possession with Intent to Distribute
Possession with intent to distribute any amount of marijuana is a felony punishable by 16-36 months imprisonment.
See:
California Health and Safety Code § 11359
California Penal Code § 1170(h)
Sale/Delivery
Sale or delivery of any amount of marijuana is a felony punishable by 2-4 years imprisonment. However, a gift or mere transportation of 28.5 grams or less of marijuana is a misdemeanor punishable by fine up to $100. If a person is arrested for this misdemeanor, they shall be released upon presentation of sufficient identification and signing of a written promise to appear in court.
See:
California Health and Safety Code § 11360
Delivery or attempted delivery without compensation of any amount of marijuana by an individual aged 18 years or older to an individual who is 14-17 years old is a felony punishable by 3-5 years imprisonment. Delivery or attempted delivery without compensation of any amount of marijuana by an individual aged 18 years or older to an individual who is under the age of 14 is a felony punishable by 3-7 years imprisonment. Sale or attempted sale of any amount of marijuana by an individual aged 18 years or older to an individual under 18 years of age is a felony punishable by 3-7 years imprisonment.
See:
California Health and Safety Code § 11361
Cultivation
Cultivation of any amount of marijuana is a felony punishable by 16-36 months imprisonment.
See:
California Health and Safety Code § 11358
California Penal Code § 1170(h)
Hash and Concentrates
In California, hashish or concentrates are referred to as “concentrated cannabis”. Possession of concentrated cannabis is punishable by a fine of $500 and a term of imprisonment no longer than 1 year.
See:
California Health and Safety Code §11006.5
California Health and Safety Code §11357(a)
The penalties associated with the manufacture of hashish or concentrates depends on what method was used during the manufacture. If the manufacturing process involved extraction chemicals, such as butane, then it is considered manufacture by means of chemical synthesis of a controlled substance. Manufacture by means of chemical synthesis of a controlled substance carries a fine no greater than $50,000 and a term of imprisonment of 3, 5, or 7 years as determined by the court. If the manufacturing process utilized screens, presses, or any other means not involving a chemical synthesis, then the offense is considered unauthorized processing of marijuana. Unauthorized processing of marijuana carries a term of imprisonment 16 months, 2 years, or three years as determined by the court.
See:
California Health and Safety Code §11379.6(a)
California Health and Safety Code §11358
California Penal Code §1170(h)
People v. Bergen, 166 Cal.App.4th 161 (2008)
Apart from the provisions mentioned, concentrated cannabis is included within the definition of marijuana for all other offenses, such as intent to sell, providing to a minor, etc. See:
California Health and Safety Code §11018
Paraphernalia
There is no penalty for the simple possession of marijuana paraphernalia. Sale, delivery, possession with intent to sell or deliver, and manufacture with intent to sell or deliver marijuana paraphernalia is a misdemeanor punishable by 15-180 days imprisonment and/or a fine of $30-$500. Delivery of marijuana paraphernalia by an individual aged 18 years or older to a minor at least 3 years his junior is a misdemeanor punishable by up to 1 year imprisonment and/or a fine up to $1,000.
See:
California Health and Safety Code § 11364.7
California Health and Safety Code § 11374
Sentencing
Possession for personal use, using or being under the influence of marijuana, presence in a room where a marijuana violation occurs, or cultivation of marijuana if the amount is for personal use are offenses that are eligible for deferred entry of judgment if certain conditions are met. These include: no prior convictions for controlled substances violations; the offense charged did not involve violence; there is no evidence that narcotics or restricted dangerous drugs were involved; the offender has never had probation or parole revoked; the offender has not completed this deferred entry within 5 years of the time of the charged offense; and the offender has no felony convictions within 5 years of the time of the charged offense.
See:
California Penal Code § 1000
Probation may be available for marijuana offenses. As a condition of probation for controlled substances violations, offenders must participate in education or treatment if the court determines that it will benefit the offender. Sentences for many violations may not be eligible for probation or suspension if the offender has been previously convicted of a felony offense involving a controlled substance.
See:
California Health and Safety Code § 11370
Cal. Health and Safety Code § 11373
California Penal Code § 1203.1
Forfeiture
Vehicles and other property may be seized for controlled substance violations. Upon conviction for sale, possession with intent to distribute, or cultivation of marijuana, the seized property becomes the property of the state. If law enforcement seizes property which it does not intend to use as evidence and the seizing agency does not refer the case to the Attorney General for forfeiture proceedings within 15 days, then the property must be returned. If the Attorney General intends to pursue a forfeiture proceeding, then a person claiming interest in the property has 30 days from actual notice or publication of notice of the proceedings to respond.
See:
California Health and Safety Code §§ 11469-11495
Miscellaneous
Involvement of a minor in a drug offense
Using a minor in the unlawful sale or transport of marijuana is a felony punishable by 3-7 years imprisonment. Inducing a minor to use marijuana is also a felony punishable by 3-7 years imprisonment.
See:
California Health and Safety Code § 11361
Drug program fee
Any violation of the California Uniform Controlled Substances Act results in a fine up to $150 in addition to the authorized fine for the offense.
See:
California Health and Safety Code § 11372.7
Drug program fee
Any violation of the California Uniform Controlled Substances Act results in a fine up to $150 in addition to the authorized fine for the offense.
See:
California Health and Safety Code § 11372.7

S. Edward Wicker
Attorney At Law
420defense@gmail.com
All rights reserved
June 2013

Nothing in the above should be construed as legal advice to any individual or group. No attorney client relationship is granted or implied until such time as there is a written contract with mutual signatures.

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